Ontario Review Board
Re: Shawn Sutherland
ORB File No: 7981
Hearing held on: Thursday, January 16, 2025
Place of hearing: North Bay Regional Health Centre – North Bay Site
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. P. Capelle
Members: Dr. J. Watts Dr. P. Wright Ms. L. Banks Mr. J. Cyr
Parties Appearing:
Accused: Lionel Trudeau Counsel: Mr. C. Bracken
The person in charge of hospital: Counsel: Mr. P. Trenker
Attorney General of Ontario: Counsel: Ms. M. Mazurski
REASONS FOR DISPOSITION
(Dated March 20, 2025)
Overview:
On December 2, 2021, Mr. Shawn Sutherland was found not criminally responsible on account of mental disorder (“NCR”) on charges between January 6, 2020 and October 20, 2020, in the Town of Timmins, Ontario. These charges included assault (x4), assault with a weapon, causing disturbance in a public place(x3), assaulting a peace officer, utter a threat to cause death or bodily harm, (x2), mischief not exceeding five thousand dollars, indecent acts (x3) and resisting or obstructing public or peace officer, all contrary to the Criminal Code of Canada (“Criminal Code”).
Mr. Sutherland is currently subject to the terms and conditions of a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated January 26, 2024, pursuant to which he is ordered detained at the Forensic Programs, North Bay Regional Health Centre–North Bay Site (“North Bay RHC” or the “hospital”), and is subject to a number of terms and conditions, including the privilege to reside at 24-hour supervised accommodation in the Province of Ontario, approved by the person in charge of the hospital.
On January 17, 2025, a panel of the ORB convened at the hospital to conduct an annual review of Mr. Sutherland’s Disposition pursuant to s. 672.81(1) of the Criminal Code. Mr. Sutherland was present at the hearing and was represented by his counsel, Mr. Bracken.
The Board had to decide whether Mr. Sutherland continued to pose a significant threat to the safety of the public, and if so, the necessary and appropriate Disposition having regard to the criteria set out in s. 672.54 of the Criminal Code.
For the reasons set out below, this Board finds the test for significant threat continues to be met and that the necessary and appropriate Disposition under the circumstances is that Mr. Sutherland continue to be subject to the terms of his existing Detention Order Disposition.
Index Offences:
- The incidents giving rise to the index offences are set out in full in the Hospital Report to the ORB dated December 23, 2024 (the “Hospital Report”) and are summarized here, as follows:
“CHARGES FOR JANUARY 6, 2020
Count #1: Causing a disturbance contrary to Section 175(1)(a) CC
Count #2: Fail to Comply with Probation Order contrary to Section 733.1(1) CC
On the 6th of January 2020 at 1130am, the complainant, Vanessa FARIN was on Third Avenue in the City of Timmins in the Northeast Region. FARIN was on her lunch break and just exited Alfie’s Cigar Store located at 219 Third Avenue. Shawn SUTHERLAND, a client of CIBC bank, where FARIN works, saw her exit the store from on the North side of Third Avenue and started to yell and swear at FARIN. He screamed at her to “come here” and started to swear and become more aggressive in his speech. FARIN feared for her safety, as she knew this individual can be violent. She ignored him and started to quickly walk back towards the bank. SUTHERLAND walked towards her but she managed to enter the bank before he could get close to her. FARIN told the security guard what had happened and requested police be called. Upon police arrival, FARIN was still visibly shaking and said she was extremely fearful due to SUTHERLAND’s actions. She provided a video statement to the police. SUTHERLAND does not have a fixed residence and a warrant for his arrest is sought.
A probation order was made against SUTHERLAND with a start date of the 14th of November 2019 and an end date of the 13th of November 2019. One of the conditions of that order is that he keeps the peace and be of good behaviour.
CHARGES FOR FEBRUARY 18, 2020
Count #1 – Fail to attend court as per undertaking CC 145(4) (b) CC
The accused, Shawn SUTHERLAND, was arrested on January 31st, 2020, by Timmins Police Service on charges of Causing a Disturbance and Fail to Comply with Probation Order. He was released on the same date on an Undertaking with the condition that he attend court. As a result of Shawn SUTHERLAND not attending court on February 18th, 2020, he is being charged with fail to appear.
CHARGES FOR MARCH 3, 2020
COUNT #1 - Utter Threats to Cause Serious Bodily Harm, contrary to s. 264.1(1)(a) CC
COUNT #2 - Cause a Disturbance, contrary to s. 175(1)(a) CC
On the 3rd of March 2021[sic] at approximately 9:00 am the accused, Shawn SUTHERLAND, attended "Your Independent Grocer" located at 654 Algonquin Boulevard East in the City of Timmins within the Northeast Region of Ontario and attempted to purchase liquor from a salesclerk, Kerri KIRLEY. When SUTHERLAND was asked to produce a form of identification to support his age he uttered to KIRLEY "I'm going to punch you in the fucking face". As SUTHERLAND exited the store he began to yell obscenities like "fuck" which directed other patron's attention toward his commotion.
CHARGES FOR MARCH 23, 2020
Count #1 - Causing a Disturbance contrary to s. 175(1)(a) CC
Count #2 – Assault, contrary to s. 266 CC
Count #3 - Assault with a Weapon, contrary to s. 267(a) CC
Count #4 – Indecent Act, contrary to s. 173(1)(a) CC
Count #5 – Resist Peace Officer, contrary to s. 129(a) CC
Count #6 – Assault a Peace Officer, contrary to s. 270(1)(a) CC
Count #7 – Consuming Liquor in other than Licenced Premises, contrary to s. 31(2) LLA
Count #8 – Fail to Comply with Probation contrary to s. 733.1 (1) CC
On the 23rd of March 2020 at 12:56 p.m., the accused, Shawn SUTHERLAND, was at Living Space homeless shelter located at 27 Cedar Street North, in the City of Timmins, Ontario, in the said Region. Staff member, Tammy BRAZEAU, had told the patrons that Living Space was closing for cleaning and the patrons had to leave for a couple hours. SUTHERLAND started throwing a fit. He was angry because some of his clothing were in the washer and still wet. He demanded that staff give him his clothes immediately. Staff told him that it’s not safe for him to wear wet clothes outside and his clothes would be dry by the time he returned. BRAZEAU used her foot to move SUTHERLAND’s shoes (slippers) out from under his cot so that he could put them on and leave. SUTHERLAND spat in BRAZEAU’s face striking her in the eyes, lips and mouth. SUTHERLAND then barged towards BRAZEAU and cornered her against the wall and the closed office door. SUTHERLAND grabbed her by her right arm and he raised his fist in an aggressive manner threatening to punch BRAZEAU. Two other staff interjected and SUTHERLAND was given his wet clothes. SUTHERLAND removed all his clothes in the presence of 3 female staff right in the common area. This is against code of conduct for Living Space. Patrons are expected to change in the bathroom. SUTHERLAND left the area prior to police arrival. At 1:31 p.m., SUTHERLAND was located by Constable WATSON at Scotiabank located at 100 Waterloo Road in Timmins. SUTHERLAND was drinking a can of Laker beer in public.
Constable WATSON told SUTHERLAND that he was under arrest for assault and assault with a weapon as per reasonable and probable grounds provided by Constable MCNAUGHTON. SUTHERLAND began to walk away and as Constable WATSON took physical control of SUTHERLAND, SUTHERLAND became actively resistant towards Constable WATSON. Constable WATSON told SUTHERLAND to stop resisting but he kept flexing his arms and pulling away. Constable BUJOLD arrived on scene as Constable WATSON secured SUTHERLAND in handcuffs. While SUTHERLAND was being searched, SUTHERLAND spat at Constable WATSON, but Constable WATSON was able to avoid being struck. SUTHERLAND was advised of rights to counsel and caution and transported to Timmins Police Service. He was released on an Undertaking.
CHARGES FOR APRIL 29, 2020:
Count #1 Mischief Under $5000 contrary to S.430(4) CC
Count #2 Fail to Comply With Probation contrary to S.733.1(1) CC
At 10:25 a.m., on the 29th of April 2020, Shawn SUTHERLAND attended the Timmins and District Hospital located in the City of Timmins, Northeast Region. While in attendance, SUTHERLAND was denied access outside for a cigarette due to policies surrounding his isolation. SUTEHRLAND became agitated and escalated to the point where he punched a window on scene causing an estimated $400.00 in damage. As a result, SUTHERLAND was breaching the condition of his probation order to keep the peace and be of good behaviour.”
Position of the Parties:
At the outset of the hearing, all parties were canvassed as to their initial recommendations to the Board. Counsel for the hospital recommended that Mr. Sutherland remained a significant threat to public safety and that the necessary and appropriate Disposition continued to be his existing Detention Order.
Counsel for the Crown supported the hospital’s recommendation.
Counsel for Mr. Sutherland was supportive of the hospital’s recommendations and conceded the issue of significant threat for the purposes of this hearing.
All parties maintained their joint recommendation to the Board in closing submissions.
Personal Background:
Mr. Sutherland’s personal, psychiatric and legal history are set forth in full in the Hospital Report and as that document was made an Exhibit at the hearing, that information will not be repeated here but for the following material highlights.
Mr. Sutherland is a 39-year-old Indigenous man who was born in Hearst, Ontario. He was raised on the Calstock First Nations Reserve. His parents separated when he was 6 or 7 years old and he has two brothers, two half-sisters, and one half-brother. Mr. Sutherland receives funding through ODSP, which is managed by the Office of the Public Guardian and Trustee (“PGT”).
When his parents separated, he continued to live with his mother and quit school in the sixth grade. Reportedly, his mother had been supportive until he began using drugs around age 14, when they began to argue, and he became more physically aggressive. Initially, he would hit or break objects, but as time progressed, he directed his violence towards people. Following an assault on his mother, he moved in with his father.
Mr. Sutherland held only one job when he was 16 years old, when he worked for approximately one week planting trees in Northern Ontario.
He has a significant drug abuse history. He reported the use of hash oil and marijuana daily since age 14. As well, he used cocaine frequently for about one year prior to his first admission in December 2002 to the Northeast Mental Health Centre in North Bay. He also has a history of sniffing gas about three times a day over a specified period in the winter of 2002. He developed addictions to cannabis, alcohol, amphetamines, and cocaine.
Criminal History:
Mr. Sutherland’s criminal history began in 2019. He has since incurred criminal charges for: possession of a weapon, mischief under $5000, assault x2, fail to comply and fail to appear. He engaged in criminal behaviour to support his drug use.
He was previously found NCR in 2002. At that time, he assaulted his mother, had auditory hallucinations, was paranoid, and heard voices telling him to hurt his grandmother. Following his NCR verdict, he was placed under the jurisdiction of the ORB until 2008, when he received an Absolute Discharge.
In 2020, he committed the index offences, which included assaults, threats, indecent acts, and breaches of court orders. According to the assessment for criminal responsibility prepared at that time, there was evidence that his mental health symptoms had been refractory and treatment-resistant during the period of the index offences. His capacity to exercise good judgement, and prosocial behaviours were disproportionately influenced by symptoms of his Schizophrenia.
Psychiatric History:
Mr. Sutherland’s psychiatric history began in February of 2002, when he was 16 years old. He reported that he had attempted suicide on at least four previous occasions (twice by cutting his wrists and twice by attempting to shoot himself). His first psychiatric admission was from February 12 - March 6, 2002, at the Regional Children’s Psychiatric Centre in Sudbury, Ontario, for suicidal ideation, aggression, and stabilization of psychosis. He was placed on antipsychotic medication and responded well over a period of three weeks.
Mr. Sutherland’s next psychiatric hospitalization was from December 11, 2002 until January 7, 2003, at the NBPH, Forensic Program for court-ordered assessment of his criminal responsibility with respect to charges of Assault, Careless Use of a Firearm, Carry Weapons, and two counts of Uttering Threats. He was found NCR in respect of these charges and he remained under the care of forensic mental health services in North Bay until March 11, 2008, when he received an Absolute Discharge. At the time of receiving an Absolute Discharge, Mr. Sutherland was living in an independent accommodation, which he shared with a roommate and he was under the care of the Assertive Community Treatment Team.
Further hospital admissions and contacts from 2018 to 2020 are detailed in full on pages 11-15 of the Hospital Report. Of note, prior to the commission of the current index offences, Mr. Sutherland’s Schizophrenia became refractory due to a number of destabilisers, including non-compliance to medications, non-compliance to services, psychosocial stressors, unstable living conditions, and addiction to illicit substances and alcohol.
Current Diagnoses:
- Mr. Sutherland’s current diagnoses are:
Schizophrenia; and
Stimulant Use Disorder.
- Of note, during the hearing, in response to questions posed by panel members, Dr. Le stated that Mr. Sutherland has a historical diagnosis of Antisocial Personality Disorder which she opined was still likely appropriate today.
Evidence at the Hearing:
The Board heard evidence from Dr. Le who just became Mr. Sutherland’s attending psychiatrist approximately ten days prior to the hearing date.
The doctor testified that Mr. Sutherland continues to be assessed as capable to make treatment decisions. Under his own authority, he receives a daily oral dose of the antipsychotic medication, Clozapine at 800 mg/daily. His treatment is augmented with a daily oral dose of the antipsychotic medications, Brexpiprazole, and Haldol. He receives PRN medication, including Olanzapine, for managing agitation, anxiety, intrusive thoughts and auditory hallucinations. Dr. Le confirmed that Mr. Sutherland has a history of medication non-compliance leading to rapid decompensations in his mental state.
The Hospital Report indicates that earlier in the reporting year, there were concerns that Mr. Sutherland was cheeking his medications. At that time, he was presenting with worsening psychotic symptoms and increased impulsivity. He was observed responding to internal stimuli and evidencing psychomotor agitation. Dr. Le stated that at the present time, Mr. Sutherland’s medication administration is no longer under direct observation by staff beyond a simple mouth check. All testing indicates that his medications are in a therapeutic range and there are not current concerns that he might be cheeking or otherwise non-adherent with his medications.
Dr. Le stated that despite being assessed as treatment capable, Mr. Sutherland has extremely limited insight into his mental illness, the need for treatment, and the impact of substance use on his mental health. However, she commented that he is receptive to health teaching and he appears to have some, albeit limited, understanding of the role of medication.
The Hospital Report indicates that despite Mr. Sutherland’s compliance with his prescribed medications, he continues to experience refractory symptoms and perceptual disturbances. He presents with limited emotions and can become easily distracted, disorganized, and guarded. He prefers to be isolative and engages minimally with others.
Dr. Le commented that an ongoing serious concern for the treatment team is that Mr. Sutherland has had trouble eating due to his experience of command hallucinations discouraging him from eating. He requires ongoing monitoring and staff assistance, without which, the treatment team believes he would stop eating altogether. He has reported that the “voices” allow him to drink Ensure when he refuses other food items. In this way, his nutritional needs are supplemented. Although Mr. Sutherland struggles to ignore his command hallucinations, he has approached the staff for PRN medication, which has helped alleviate his symptoms and enabled him to eat more than before. The treatment team has observed that, despite receiving regularly scheduled Haldol, Mr. Sutherland still experiences residual symptoms. Mr. Sutherland has reported that when he does eat, the voices do not become more aggressive. With much staff monitoring and support, his weight has remained stable.
The Hospital Report indicates that Mr. Sutherland has not consumed alcohol, or illicit substances while in the secure environment of the hospital and all random drug tests have returned negative. He has not participated in any addiction-based programming but did engage with the Concurrent Disorder Specialist for one-on-one sessions until July 2024. He is now on a waitlist for individual CDC services.
Mr. Sutherland is able to exercise supervised hospital and grounds and community privileges in a group. In addition, he has indirectly supervised to-and-from privileges to therapeutic groups/programs. On December 3, 2024, Mr. Sutherland requested 4 x 30 mins/day of indirectly supervised hospital and grounds privileges. The treatment team noted their support in increasing his indirectly supervised privileges, commencing with 1x30 minutes to Town Square/Snack Shack. To date, he has managed his privileges without incident and Dr. Le expected that the duration of these privileges will be extended in the near future.
A panel member asked about whether a behaviour therapist might be available to assist Mr. Sutherland with regard to his difficulties with eating, and the doctor answered in the affirmative and suggested that, if Mr. Sutherland consented, a behavioural plan might be put into place.
Counsel for Mr. Sutherland asked whether his client will be allowed to smoke cigarettes over the course of the upcoming year and Dr. Le stated that as he progresses to more liberal privileges, that should be possible.
In terms of programming, Mr. Sutherland receives 1:1 support from various staff, including an Occupational Therapist. He performs his cleaning duties well at the Snack Shack and is engaged in Peer Drop and Spiritual Care services. Mr. Sutherland enjoys video games, card games, billiards, walking on hospital grounds, and participating in community shopping outings.
Mr. Sutherland has had little contact with his family during this reporting period.
In terms of the long-term plan to discharge Mr. Sutherland to community living, Dr. Le reported that Mr. Sutherland does not qualify for DSO funding and accordingly, he is not eligible for Dual Diagnosis Transitional Rehabilitation Housing Program. The treatment team will continue to pursue other housing options.
The Hospital Report indicates that Mr. Sutherland continues to meet the threshold of posing a significant threat to public safety. The following risk factors were identified:
“Mr. Sutherland suffers from a severe and persistent mental disorder, Schizophrenia, which has been refractory and treatment-resistant. His Schizophrenia presents with positive and negative symptoms and cognitive deficits. The manifestations of his illness include auditory hallucinations, disorganized thoughts, misinterpretation of both internal and external stimuli, poverty of thoughts, poverty of speech, incoherent speech, poor social performance or self-care, poor non-verbal communication, and experiences hallucinations, some commanding in nature, leading to unpredictable behaviours that lack self-restraint and control. He cannot exercise appropriate judgment and behaves irrationally and aggressively when unwell;
Mr. Sutherland’s profound executive cognitive deficits have increasingly made it challenging to anticipate the consequences of his actions, control his emotions, problem-solve day-to-day tasks, analyze and process information, remember details of events, and maintain mental focus;
Mr. Sutherland has an extensive psychiatric history marked by non-adherence to treatment and psychiatric follow-up;
Mr. Sutherland has a history of antisocial behaviour;
There is evidence of behavioural and conduct problems prior to age 15;
Mr. Sutherland has poor insight into his mental health and treatment needs;
Mr. Sutherland has a long history of daily substance misuse, dating back to his youth;
He has a history of using inhalants, cocaine, speed, cannabis and alcohol. He has endorsed that substances have no bearing on his mental health;
Mr. Sutherland has a criminal record. He has numerous charges of failing to comply with a probation order, to attend Court, and of assault and indecent acts;
Mr. Sutherland’s level of dysfunction in the community, including irrational, bizarre, aggressive and indecent behaviour, resulted in community support agencies, including a homeless shelter, banning him from attending;
This is Mr. Sutherland’s second NCR finding. Mr. Sutherland received a previous NCR finding in 2003 and was Absolutely Discharged in 2008.
Mr. Sutherland was living a transient lifestyle before his admission to this facility;
Mr. Sutherland does not attend post-secondary and has never been gainfully employed; and
Mr. Sutherland has limited community support and has limited contact with family.”
- According to the Risk Assessment contained in the Hospital Report, “In considering the PCL-R:2, VRAG-R, and HCR-20V3, historical, and protective factors, it is our current opinion that his:
-Risk for Future Violence is High (without all the supports in place);
Risk for Serious Physical Harm (i.e., severity of the violence) is High; and
Risk for imminent violence is Low.”
The doctor testified that the treatment team concluded that the necessary and appropriate Disposition continues to be Mr. Sutherland’s existing Detention Order, without amendment.
No further evidence was called by the parties.
Analysis and Conclusions:
Having heard and considered all of the evidence and the submissions of all the parties, this Board is of the view that the test for significant threat to the safety of the public continues to be met. We make this finding based on the evidence of Dr. Le and the documentary evidence available to the Board at this hearing. Mr. Sutherland suffers from Schizophrenia and Stimulant Use Disorder. Despite treatment with the gold-standard antipsychotic medication, Clozapine, augmented by additional antipsychotic medications, he has continued to experience treatment-refractory symptoms and perceptual disturbances. The command hallucinations he experiences daily encourage him not to eat and as a result, he requires intensive staff monitoring and supports to manage his nutritional needs.
In addition, Mr. Sutherland has difficulties with cognitive functioning, a history of nonadherence to treatment, and underdeveloped insight across all relevant domains.
Absent the jurisdiction of the ORB, the evidence indicates that Mr. Sutherland would likely stop taking his medications and engaging with mental health support. He would likely return to the use of substances, quickly decompensate, and engage in aggressive behaviours, as he did at the time of the index offences. Further, the Board is mindful that this is Mr. Sutherland’s second NCR finding. For all of the above-noted reasons, it is our view that the test for significant threat to the safety of the public continues to be met.
Having come to a finding of significant threat, we must arrive at the least restrictive and least onerous Disposition that is necessary and appropriate, bearing in mind the paramount goal of public safety.
At the present time, Mr. Sutherland has yet to exercise all privileges available to him under his existing ORB Disposition and he continues to require in-patient admission. The Board finds that the hospital continues to require the authority of a Detention Order at this juncture. Mr. Sutherland continues to require intensive staff monitoring and supports within the structured environment of the hospital. The hospital must be in a position to approve his community housing when he is ready for discharge and to readmit Mr. Sutherland to hospital should he experience deterioration in his mental state when living in the community, in order to ensure risk management. For these reasons, we have determined that a less restrictive Conditional Discharge Disposition is not appropriate at this time.
In making our decision, we have considered the need to protect the public from dangerous persons, the mental condition of Mr. Sutherland, his reintegration into society and his other needs.
DATED this 20th day of March 2025, at the City of Toronto, in the Toronto Region.
Ms. L. Banks Legal Member
Office of the Registrar Ontario Review Board