Re: Justin Bernard
ORB File No: 8456
Hearing held on: Tuesday, January 28, 2025
Place of hearing: Ontario Shores Centre for Mental Health Sciences
Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. C. Flanagan Members: Dr. B. Sheppard Dr. M. Kalia Ms. J. Greenwood Mr. J. Cyr
Parties Appearing:
Accused: Justin Bernard Counsel: Mr. D. Medd
The person in charge of hospital: Representative: Dr. K. De Freitas
Attorney General of Ontario: Counsel: Ms. N. MacDonald
REASONS FOR DECISION
(Dated February 25, 2025)
Introduction
On December 21, 2023, Justin Bernard was found unfit to stand trial on charges of assault (x2) and assault with a weapon, contrary to the Criminal Code. Mr. Bernard was remanded to the jurisdiction of the Ontario Review Board (“the Board”) with a Warrant of Committal to be detained at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”).
On January 28, 2025, the Board convened at Ontario Shores to conduct a hearing pursuant to s. 672.47(1) and 672.48(1) of the Criminal Code to determine Mr. Bernard's fitness to stand trial and to make a Disposition, if necessary. Mr. Bernard attended his hearing and was represented by counsel, Mr. Medd. Dr. De Freitas presented on behalf of the hospital and submitted that Mr. Bernard is fit to stand trial and should be remanded back to the court for the adjudication of the issue of fitness. Counsel for the Attorney General agreed with the hospital's position and at the end of the hearing, all counsel made a joint submission that Mr. Bernard was fit to stand trial.
For the following reasons, the Board finds that Mr. Bernard is fit to stand trial and agrees with the submissions of counsel.
Index Offence
- “On Tuesday September 5th, 2023, both Mr. Bernard and his mother were at home. Hi mother was seated in the living room, and she could hear Mr. Bernard mumbling to himself. She heard Mr. Bernard say “You look like you need a good punch in the face” immediately after, he approached his mother and punched her in the face with a closed fist. This punch caused a 2-inch cut across her cheek causing it to bleed. Mr. Bernard left the residence. (CHARGE 1)
Sometime after midnight on September 6th, 2023, Mr. Bernard returned home. Despite Lorraine Bernard being in bed, Mr. Bernard spent most of the night accosting her in her bedroom demanding she set up to make him something. This happened several times throughout the night.
On Wednesday, September 6th, 2023, just after 11:00 am, Lorraine Bernard awoke when Mr. Bernard jumped on top of her. He was holding her and shaking her to wake her up. (CHARGE 2) Mr. Bernard demanded his mother to wake up and get him a drink. Despite offering to give him money to go to the store, Mr. Bernard remained on top of his mother before grabbing her purse and slapping her with it. (CHARGE 3)
As this was happening, the PSW arrived at the apartment. She walked into the bedroom and saw Mr. Bernard on top of his mother. Mr. Bernard then got off his mother and approached the PSW and an argument ensued. The PSW called police. Before police could arrive, Mr. Bernard had thrown a metal basket and a package of disposable underwear at his mother. Toronto Police Service officers arrived on scene and located Mr. Bernard accused in the apartment. He was arrested with no incident, provided rights to counsel, and transported to 42 Division to be held for a show cause.”
Background
Mr. Bernard is thirty-five years old. He was diagnosed with treatment-resistant schizophrenia, and moderate cannabis use disorder. Mr. Bernard is also mildly intellectually disabled.
The Hospital Report sets out Mr. Bernard's background which has been considered by the panel. Prior to his admission to Ontario Shores, he was living in the community in a one-bedroom apartment with his mother. His mother is the victim of the index offence. At the time the index offence occurred, Mr. Bernard was receiving support in the community through Dr. Gelber at North York General Hospital.
During the court process, a Form 48 was issued to assess Mr. Bernard’s fitness and on November 23, 2023, Mr. Bernard was admitted to Ontario Shores for that assessment. He returned to court on December 21, 2023, with a psychiatric opinion that he was unfit to stand trial.
On that same day, Mr. Bernard was found unfit to stand trial and a Form 49 Warrant of Committal was issued detaining him at Ontario Shores where he awaited his initial Ontario Review Board hearing.
Evidence at the Hearing
The evidence at the hearing consisted of a Hospital Report marked as Exhibit 1, and a Notice of Hearing, Reasons for Disposition from last year (February 2024) and the Warrant of Committal. Dr. De Freitas testified at the hearing and gave the following evidence. Dr. De Freitas assessed Mr. Bernard and submitted to the panel that Mr. Bernard is fit to stand trial. She presented the panel with evidence regarding an assessment she performed the day prior to the hearing which would have been January 27, 2025.
Dr. De Freitas advised the panel that Mr. Bernard was able to speak to the number of charges that he was facing. Initially, he said he was facing one charge, assault. Dr. De Freitas provided some coaching to Mr. Bernard that he in fact had three charges which he accepted. Dr. De Freitas also discussed with Mr. Bernard what the allegations against him were. He was able to give a brief description of those allegations which Dr. De Freitas found reasonable. At a later point during the assessment, Dr. De Freitas repeated some questions, and he was able to recall that he did in fact face three charges and was able to understand them and describe the allegations. Dr. De Freitas went on to discuss what the choices are that Mr. Bernard has when he is before the court. He understood he could be convicted or innocent. When pressed further on this issue, he was able to advise that if he was guilty, he would go to jail. If he was found not guilty or innocent, the court would give him a break.
Dr. De Freitas also reviewed with Mr. Bernard the roles of the parties. He was asked about the role of the judge, the prosecutor and defence counsel. He understood and gave reasonable answers regarding the role of each of the parties. When asked about the trial process, Dr. De Freitas indicated he struggled with the part about the evidence. He was unable to really understand how the evidence would be used in a trial. However, Dr. De Freitas indicated that when she made the example more abstract and without Mr. Bernard applying this evidence to himself, he was able to understand that a judge would listen to both sides and then make a decision.
At some point, Mr. Bernard gave Dr. De Freitas some answers around his behaviour while in hospital and thought that his good behaviour would have some impact on the trial. Dr. De Freitas provided coaching around that and moving through their discussions, he was able to retain the concepts and provide her with answers that she advised were reasonable.
Mr. Bernard continues to do well with the support he receives in hospital. Dr. De Freitas advised he continues to have some residual symptoms including delusional beliefs that he has a number of children who are members of the staff at Ontario Shores and that he is a billionaire. She advised that his intellectual delay does have some impact on his cognitive function, and she advised that he is quite simple. However, he has not been a significant management problem; he has not engaged in any acts of violence or aggression and while he did experience some stress around the upcoming Board hearing, he has not been a significant behavioural problem. At the end of Dr. De Freitas’ evidence, she remained firm that he was fit.
Dr. De Freitas was asked questions briefly by the representative of the Attorney General and Mr. Medd about his fitness and she maintained that he was marginally fit or fit. Council on behalf of the Attorney General, Ms. MacDonald, asked Dr. De Freitas questions around his cannabis use disorder and intellectual delay and Dr. De Freitas advised that the team has been working with him to address these issues and that he had been adjudicated for DSO funding (Developmental Services Ontario) and while he also has that funding, he has Passport funding that Dr. De Freitas advised should not be taken away if he is sent back to court or released from hospital. Counsel for the Attorney General also asked about Mr. Bernard’s risk factors around his ability to access drugs. Dr. De Freitas advised that he is on a secure forensic unit and has not had much access to drugs, specifically cannabis; however, that remains a significant risk factor for Mr. Bernard.
Dr. De Freitas was also asked questions from the panel. She advised that before yesterday's assessment of fitness, he was assessed a couple of weeks ago. At that time, he was found marginally fit. She advised the panel that she believed he was internalizing the discussions that he had with staff and coaching around his answers to the various questions and was able to understand what had been explained to him about the court process. She advised when you discuss it with him, he can give the answers back. He is not just parroting what you said. Dr. De Freitas also advised the panel that with the guidance of a good lawyer, these concepts and factors could be reinforced and that with support that information would be available to Mr. Bernard when making decisions and applying these concepts to himself.
There were some questions from the panel about supports for Mr. Bernard in the community and the panel was advised that Mr. Bernard’s supports are limited. While he does have support from his mother and sister, they cannot assist him with housing. His father has recently passed away and he has no other significant supports in place at this time.
Positions of the Parties
- At the conclusion of the hearing, the parties maintained their initial positions and counsel for the Attorney General joined in the joint position submitted to the panel that Mr. Bernard was fit to stand trial and his matter should be remitted back to court.
Analysis and Conclusions
Fitness to Stand Trial
The evidence at the hearing establishes that Mr. Bernard is fit to stand trial. The Board accepts the assessment of fitness evidence of Dr. De Freitas and the evidence contained in the Hospital Report. Mr. Bernard was able to correctly answer a number of the fitness test questions and while he may have a rudimentary understanding of these concepts, he was able to understand the pleas available to him, the roles of the parties and with coaching, he understood that there was a trial process that would take place. Mr. Bernard is supported by his defence counsel, Mr. Medd, who advised the panel he is able to communicate effectively with Mr. Bernard and that was supported in the evidence of Dr. De Freitas. The panel accepts that Mr. Bernard would be able to participate in the proceedings and understand, make decisions and communicate with his counsel.
The fitness test was recently addressed by the Court of Appeal in R. v. Bharwani, 2023 ONCA 203.1 In that case, the Court emphasized that the fundamental purpose of the s. 2 definition is to ensure that all accused are able to be meaningfully present and meaningfully participate in their criminal trials. In this regard, this Board accepts the evidence of Dr. De Freitas, as corroborated by the Hospital Report, that Mr. Bernard is now fit to stand trial.
Mr. Bernard presently has a reality-based understanding of the nature and object of the proceedings, understands the possible consequences of the proceedings and can communicate with counsel. In this regard, he understands the role of the parties, the court process, and plea options. We are satisfied that on the evidence, he can meaningfully participate in the court process.
Having found Mr. Bernard fit to stand trial, this Board is mindful of the fact that this hearing is an annual hearing to review fitness pursuant to s. 672. 81 and s. 672.48 of the Criminal Code. As such, as was stated by the Alt. Chair to the parties at the onset of the hearing, given this hearing was not an initial hearing pursuant to s. 672.47 of the Criminal Code, a “keep fit” order is unavailable under the circumstances and the Board can only order the accused back to court on the existing Disposition should it find the accused fit to stand trial.
This is supported in the cases of Evers v. British Columbia (Adult Forensic Psychiatric Services), 2009 BCCA 560, Pichette (Re), 2022 ONCA 438, at para. 8, and British Columbia (Adult Forensic Psychiatric Services) v. Noddle, 2023 BCCA 396 and recently by The Honourable Michael R. Dambrot, Chair of the Ontario Review Board, in the Amended Reasons for Disposition in McKenney, dated July 10, 2024.
Conclusion
- As a result, the panel finds Mr. Bernard fit to stand trial and remits his matter back to the court for adjudication.
DATED this 25th day of February, 2025, at the City of Toronto, in the Toronto Region.
Ms. J. Greenwood Legal Member