Re: Denise Herbert
ORB File No: 8585
Hearing held on: Wednesday, January 29, 2025
Place of hearing: Waypoint Centre for Mental Health Care 500 Church Street, Penetanguishene
Pursuant to: Section 672.47(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. P. Capelle
Members: Dr. R. Wood Hill Mr. A. Mete
Parties Appearing:
Accused: Denise Herbert Counsel: Mr. K. Byers
The Person in charge of Hospital: Representative: Ms. T. Murdock
Attorney General of Ontario: Counsel: Ms. S. Curry (via Zoom)
REASONS FOR DISPOSITION
(Dated March 27, 2025)
Introduction
On June 24, 2024, Ms. Denise Herbert was found not criminally responsible on account of mental disorder on charges of dangerous driving causing death and failure to stop after an accident, contrary to the Criminal Code of Canada (the Criminal Code). The Court did not make a disposition and ordered that the matter be referred to the jurisdiction of the Ontario Review Board for a disposition hearing.
On January 29, 2025, a panel of the Ontario Review Board (the "ORB" or the "Board") convened a hearing pursuant to s.672.47(1) of the Criminal Code of Canada. Ms. Herbert was in attendance and was represented by her counsel, Mr. K. Byers.
Victim Impact Statements
The hearing began with the introduction of thirteen Victim Impact Statements. These were either read into the record by their author, or by a family member, or friend. Each one speaks to the tragic aftermath of the events of June 9th 2022. It should be noted that some of the statements were previously vetted by Ms. Herbert’s lawyer, Mr. Byers, whereas others were not. The Board and the parties listened attentively to these unredacted, emotional and heartfelt statements. Prior to the introduction of the Victim Impact Statements the parties were advised, that, as directed by the Ontario Court of Appeal decision in Klem, 2016 ONCA 119, the Board would only take into consideration those portions of the statements that comply with the Criminal Code.
Without Prejudice Position of the Parties
The hospital is recommending a conditional discharge as contained in Dr. Mishra's Risk Assessment Report entered as Exhibit 1, with the addition of travel outside of Canada with an approved itinerary and an approved person for up to 14 days.
Ms. Curry, on behalf of the Crown, supports a conditional discharge, but is seeking either, a driving prohibition, or defined restrictions on Ms. Herbert's ability to drive. Additionally, that Ms. Herbert not be permitted to live in a residence with any firearms. Ms. Curry also indicated she will have questions regarding the proposed travel provision.
Mr. Byers, on behalf of Ms. Herbert, joined in the hospital’s recommendation as contained in Dr. Mishra’s Risk Assessment Report and also supported the addition of the travel recommendation. Mr. Byers added that his client opposes any form of driving prohibition. While there are weapons in the house where Ms. Herbert resides with her parents, only her mother has access to the gun cabinet key which is hidden from Ms. Herbert.
While the ongoing presence of significant threat is conceded, Mr. Byers submits that it is appropriate for Ms. Herbert’s reporting requirement to be extended to 72 hours if she chooses to leave her residence for an extended period. He also submitted that the recommended reporting requirement of once every two weeks should be extended.
Finally, Mr. Byers requests an exception regarding the no contact provision vis-à-vis identified victims of the index offences pertaining to incidental contact in courtrooms, as litigation has been initiated against his client.
Background and Index Offences
The details of the index offences are taken from the Police Synopsis, as follows:
“On Thursday June 9th, 2022 at 8:20 am, CS was operating a 2016 Kia FLX bearing Ontario license BYDE687 westbound on Vodden Street at Main Street North, in the City of Brampton. At the same time, the accused, Denise Herbert was operating a 2008 Suzuki CVT bearing Ontario personalized license 31MAR northbound on Main Street. As CS proceeded through the intersection on a green light, his vehicle was struck on the driver's side by the accused's vehicle, who proceeded through the intersection on a red light. The collision caused the Kia to go into a spin, where it struck two other stationary vehicles which were facing southbound on Main Street, a 2007 Toyota CTR bearing Ontario license BZLW079 and a 2014 Kia CRO bearing Ontario license BSNR321. The accused exited her vehicle and proceeded to walk northbound on Main Street without rendering assistance. The accused was located a short time later.
CS was transported to Brampton Civic Hospital via ambulance and was pronounced by Dr. Mall at 9:22am. No other drivers were injured.
At 10:01 am, the accused was arrested for Careless Driving causing Death, contrary to section 130(3) of the Highway Traffic Act and was read her rights to counsel and caution, all of which she indicated that she understood and was transported to 22 Division. While lodged in cells the accused advised police that she suffers from blood clots and does not have her medication. Subsequently the accused was transported to Credit Valley hospital as a precaution.
Further investigation determined that the accused was operating her motor vehicle minutes prior to the collision, at Main Street and Neilson Street in the City of Brampton and had driven through a red light narrowly missing a pedestrian crossing the roadway.
At 4:00 pm, the accused was advised of the upgraded charges of Dangerous Operation Causing Death, section 320.13(3) of the Criminal Code of Canada and Failure to Stop after Accident Resulting in Death, section 320.16(3) of the criminal code of Canada. She was informed of her rights to counsel and cautions all of which she indicated that she understood and was later released on an Undertaking, while at the Credit Valley Hospital, with a court date of August 22nd, 2022 at 9:00am and a finger print date of August 19th, 2022 at 11:00 am.”
Current Diagnosis
- Schizophreniform Disorder (by history)
Evidence at Hearing
Dr. Mishra testified on behalf of the Hospital.
In preparing his Risk Assessment Report, Dr. Mishra first reviewed Dr. Wilkie's NCR Report. He subsequently met with Ms. Herbert to understand what treatment follow-up she had received so as to formulate a general understanding of her circumstances. He then applied the HCR-20 v3 criteria to assess her future risk and provide recommendations.
Ms. Herbert's initial diagnosis is Unspecified Schizophrenic Disorder and Major Depression. She was not taking psychotropic medications when first interviewed and presented as asymptomatic. Regarding insight, she acknowledged having symptoms at the time of the index offences, but now believes she could recognize early signs of her mental deterioration were it to re-occur. Dr. Mishra added that some patients do develop a level of insight, but this is uncommon following an initial decompensation and recovery.
A panel member inquired if Ms. Herbert now has any insight relating to the time of the index offence. Dr. Mishra responded that looking back, she realizes she was unwell at the time. Stressors in her life involved marital issues. Additionally, she was away at a retreat when her home burned down and therefore had to move from one place to another. As a result, she was becoming more depressed and psychotic. Dr. Mishra added that these stressors precipitated the index offence. Once that cycle had been triggered subsequent stressors need not be as severe to trigger another relapse. Asked if Ms. Herbert presents as someone who would decompensate quickly, Dr. Mishra responded that it is difficult to predict as the signs and symptoms of her possible relapse are unknown. He added that if she was mentally decompensated while driving this would definitely be a concern.
The treatment plan for Ms. Herbert going forward sees Waypoint Mobile Treatment Team, under Dr Ismail ,co-ordinating with Parry Sound’s CMHA Community Outreach and Support Team (COAST) program for which Dr A. Douglas consults. Ms. Herbert has already made contact with COAST and is receiving ongoing treatment. Dr Mishra indicated that the Waypoint team, being “forensic” is more alert to the risk Ms. Herbert may present to public safety. Further, the hospital is of course responsible in regards to this NCR client’s Disposition. It is anticipated that Dr. Ismail will initially see Ms. Herbert at least once a month and if things go well this can be decreased to as little as every three months. Dr. Ismail ordinarily works five days per week and would be available on short notice to see Ms. Herbert were she to relapse. She could also be taken to the nearest hospital under the authority of the Mental Health Act (MHA). Dr. Mishra added, that in the event of a rapid relapse, it was unlikely that Dr. Douglas could see Ms. Herbert as quickly as could Dr. Ismail.
A minimum two week forensic reporting requirement remains essential to ensure Ms. Herbert’s mental stability. Ms. Herbert lacks critical insight that a relapse could occur. The Forensic Mobile Team includes health care professionals trained to assess mental status and determine if Ms. Herbert may be decompensating. The Forensic Mobile Team has specialized training in forensic mental health whereas the local COAST team does not. Forensic contact is required every two weeks because it is essential for the Forensic Mobile Team to closely monitor Ms. Herbert and return her to hospital subject to the provisions of the MHA if she begins to decompensate. The MHA is deemed sufficient to return Ms. Herbert to hospital for assessment and possible admission because her mental state has remained relatively stable while she has been living in the community. Given her history, a change of mental state would be noted within a two-week period by the Forensic Mobile Team.
Dr. Mishra agrees that COAST is a good community support. However, in times of crisis, the intensity of support required and ability to recognize risk is assessed differently than the threat to public safety as seen through a forensic lens.
Dr. Mishra added that a clinician could come out to see her every two weeks and she could be seen in hospital once per month. He would not compel her to attend at Waypoint every two weeks unless necessary. Dr. Mishra reiterated that Ms. Herbert is not currently receiving antipsychotic medications.
Mr. Byers referenced the “Plan” heading at the end of Dr. Douglas’ December 11th 2024 Report, specifically Point 4, which states “no imminent safety risks or reporting obligations identified.”
Dr. Mishra responded that Dr. Douglas is implying that there was no need to complete a Form 1 under the Mental Health Act. Dr. Mishra added that Dr. Douglas’ management of risk is approached differently than by a psychiatrist with specialized forensic training who assesses risk from a longitudinal risk management forensic perspective.
The last sentence of Dr. Douglas’ report reads:
“This is the third time I have seen Denise, and the first time I have seen her in person, she was energetic, boisterous, and cheerful today, which I am interpreting in the context of the ongoing stressors with the ORB, her civil suits and her desire to remain well and could not appreciate any additional pathological symptoms. We will continue to monitor.”
Dr. Mishra testified that this sentence stands out to him in assessing Ms. Herbert’s responses from a forensic viewpoint. The doctor explained that Ms. Herbert’s presentation seems concordant for someone with elevated mood, potentially cycling to hypomania. Although Ms. Herbert’s psychosis initially responded well to antipsychotic medications these have since been discontinued by Dr. Douglas.
Dr. Mishra was asked by Mr. Byers for his interpretation of Dr. Douglas’ diagnosis. Specifically:
M DD with psychosis R/O Schizophrenia or affective psychosis (ie.Schizoaffective/Bipolar)
He responded that Dr. Douglas' opinion was in the moment, meaning within the next 48 hours. Thus, at that window in time, Ms. Herbert did not meet criteria under the Mental Health Act. Further, Dr. Douglas has not addressed Ms. Herbert’s level of significant threat to public safety. Nonetheless, Dr. Douglas’ report contains astute observations and raises concerns regarding the discordance between Ms. Herbert's presentation in the face of stressors and an absence of appreciation vis-à-vis the possibility of relapse.
Mr. Byers referenced the CMHA letter dated January 13, 2025, entered as Exhibit 3, which states in part:
“Denise has been off antipsychotic medication since February 2024. The team has not observed any symptoms of psychosis since that time, Denise has also reported no symptoms.”
Of note is that Ms. Herbert is currently prescribed amitriptyline, albeit at a low dose, which has the potential to trigger a mood episode. Her use of hydro chroxychloroquine may also trigger a mood episode. Therefore, in the event of decompensation Dr. Mishra believes it is essential to have ready access to this patient.
The following extract from the Hospital Report, under the heading Recent psychiatric history as narrated by Ms. Herbert in the interview for the risk assessment on August 27, 2024 was put to Dr. Mishra by Mr. Byers, to which he agreed:
Page 30: Her antipsychotic medication, haloperidol, was discontinued by Dr. Douglas at January 2024 as Ms. Herbert was experiencing severe side effects. Further treatment with antipsychotic medication was not recommended since then, and Ms. Herbert had been asymptomatic.
The following extract from the Hospital Report, under the heading Mental Status Examination was put to Dr. Mishra by Mr. Byers, to which he agreed:
Page 32: She was willing to cooperate with any conditions as laid out by the Ontario Review Board and keen to remain well. Her attention and concentration although not formally tested, appeared to be good. She was alert and oriented. She had good insight.
The following extract from the Hospital Report, under the heading Major Mental Illness was put to Dr. Mishra by Mr. Byers, to which he agreed:
Page 37: Monitoring for the recurrence of psychotic symptoms and early intervention will be the cornerstone of Ms. Herbert's risk management plan. She has remained engaged with the Early Psychosis Intervention service with the CMHA locally. She has expressed a wish to engage with any monitoring requirements that are stipulated by the Board and accept medication if recommended by a physician. There has been no indication of non-adherence to treatment in the past.
Mr. Byers questioned Dr. Mishra about the conclusory paragraph of the HCR-2-V3 findings for Ms. Herbert set out at page 37 of the Hospital Report. Dr. Mishra explained that this is an actuarial instrument scored at the time it was done. That sections concluding paragraph reads as follows:
“Reviewing the above risk factors, Ms. Hebert presented as low risk for future violence provided, she continued to receive supervision and psychosocial support. She did not display characteristics that indicated an antisocial personality organization. She did not have a history of violence prior to the index offense. There was no history of substance use. She was presently well supported by her family of origin. She had been compliant with treatment and remained engaged with the local mental health service to ensure that she was being adequately monitored. There had been no evidence of problems with treatment or supervision response. The index offense occurred purely in the context of her illness and driven by symptoms of her psychotic condition, which had resolved completely and did not recur despite being medication free for over 7 months.”
Mr. Byers inquired if in light of how well Ms. Herbert is doing if there is a need for her to report after 24 hours of absence from her residence. Dr. Mishra emphasized that 24 hours’ notice, absent consent of the hospital, is recommended whenever Ms. Herbert leaves her residence so it is known where she is. This is important in the event of relapse and particularly so if an unknown absence occurs as Ms. Herbert is not being closely monitored. This type of relapse management is intended to address the possibility of harm and is not particularly onerous.
Dr. Mishra was asked to comment as to whether Ms. Herbert should be allowed to operate a motor vehicle. He initially responded that this was not part of his risk assessment so he was not prepared to comment. Questioned by Mr. Byers, Dr. Mishra conceded he was aware that Ms. Herbert’s driver’s licence was reinstated in 2023 and that she has been operating a vehicle since that time. At page 39 of Dr. Mishra’s Risk Assessment Report, Ms. Herbert’s driving is referenced absent any requirement for an assessment. Dr. Mishra testified that at this time he sees no reason to report any inability to drive to the Ministry of Transport. He added that Drs. Hanby and Douglas would have been under an obligation to report Ms. Herbert to the Ministry of Transport if they considered her unfit to drive, which they did not. Dr. Mishra agreed with the suggestion that his patient’s societal reintegration is an important rehabilitative factor and her ability to operate a motor vehicle is essential for her rehabilitation as she lives in an isolated area. Dr. Mishra conceded his discharge recommendations did not include a driving prohibition.
There is an ongoing concern that Ms. Herbert is living in a residence containing firearms. Dr. Mishra added that there should be no weapons in her residence. Otherwise, prevention of access cannot be assured. Responding to questions from Ms. Curry, Dr. Mishra agreed that even if weapons are locked away this does not guarantee they cannot be used. He added that weapons in a house can be accessed quickly and can be used to cause death. The index offence involved the use of a motor vehicle as a weapon to cause death.
The recommended abstention from alcohol and substances provision is important because this is a first episode of illness and Ms. Herbert is not currently receiving any psychotropic medications.
Dr. Mishra opined that since Ms. Herbert is not receiving antipsychotics she could decompensate within days. This would be concerning if she were to leave the country on a travel pass for as long as 14 days. She would however be required to take psychotropic medications with her for use as needed and maintain contact with the treatment team by phone every few days.
In redirect from Ms. Curry, Dr. Mishra advised that 14 days would be the outer limit of time that he would be comfortable seeing Ms. Herbert leave the country for. In redirect from Mr. Byers, Dr. Mishra responded that the longer someone is well, the longer they are more likely to remain symptom free with a diminished need for oversight. Dr. Mishra emphasized that with Ms. Herbert, there are a lot of unknowns. Specifically, her inability to grasp that she may relapse requires caution as the consequences could be catastrophic. Dr. Mishra added that in the early stage of illness it is easier for a patient to conceal symptoms, and even more so for intelligent people like Ms. Herbert, who is able to advocate for herself. Further, she is not receiving antipsychotic medications but prescribed other medications that have the potential to precipitate a relapse.
Closing Observations
Hospital Representative Ms. Murdock maintained the Hospital's initial position while noting the concerns expressed with the 14-day duration of travel passes outside of Canada. She submitted that a conditional discharge is the least onerous and least restrictive disposition in the circumstances. Going forward it is essential to ensure that Ms. Herbert is adequately monitored. The hospital took no position vis-à-vis a driving prohibition.
Ms. Curry emphasized that the safety of the public as directed by s. 672.54 of the Criminal Code remains the primary consideration. A conditional discharge can only protect the public if proper supports and restrictions are in place. Therefore, the Board needs to consider Ms. Herbert’s future risk to public safety and craft the terms and conditions accordingly.
Reporting not less than every two weeks is essential, as is oversight by the Forensic Mobile Team, which is qualified to ascertain mental status and assess risk. The Forensic Mobile team can assess Ms. Herbert at her home, and if she is doing well, many of the monitoring visits can be done remotely. COAST is not forensically oriented, her participation is not mandatory, nor is Dr. Douglas a forensic psychiatrist; trained to determine and oversee the presence of a significant threat to public safety.
As regard firearms, the Crown requests that these be transferred to another person lawfully able to possess them. When well, Ms. Curry submitted that Ms. Herbert used a car as a weapon of opportunity and added that guns are only used for lethal purposes. Dr. Douglas’ Report noted that Ms. Herbert did not seem to appreciate her risk of relapse. Further, there is no history of psychosis that the forensic team can rely upon to predict what a future relapse may look like, and what stressors may be triggering. It was also noted that Ms. Herbert is facing multiple lawsuits.
Scores from actuarial testing appear to be on the lower end of the scale. However, Ms. Curry submitted that these tools do not include an assessment of how catastrophic a future offence could be. Dr. Douglas reported discordant reactions from Ms. Herbert as her affect is described as bright and energetic. Dr. Mishra is concerned that this presentation is an indicator of future decompensation.
Ms. Curry also submitted that 14-day travel passes outside of Canada are too long and too risky. She noted that this is an initial disposition and the first time Ms. Herbert is subject to monitoring. Additionally, Ms. Herbert is untreated with antipsychotics and a decompensation could occur within a matter of days.
With regard to a driving prohibition, Ms. Curry noted that the index offence occurred less than three years ago. Therefore, the Crown has significant concerns about her driving. Ms. Curry submitted that the Board should consider Ms. Herbert’s risk to the public when operating a motor vehicle. If it is determined that Ms. Herbert be permitted to operate a motor vehicle due to necessities of life and her remote location, it may be appropriate that she be required to drive in the company of her mother or father. Again she is pharmacologically untreated and may not be able to recognize the onset of another psychosis.
Mr. Byers reiterated that significant threat was not contested. He further conceded that having heard the Hospital’s evidence, reporting as recommended is no longer contested. He submitted that his client would be comfortable with a communication schedule as recommended by the forensic team during any absence from Canada.
Mr. Byers submitted that it was Ms. Herbert who initiated contact with COAST and that that organization can stay on top of her vis-à-vis her driving. Ms. Herbert has seen four doctors, none of which found her unfit to drive. Mr. Byers added that it is essential that Ms. Herbert be permitted to drive without her parents in the car. Her father is unable to accompany her on a regular basis as he is a triple amputee. Her mother is not always available to accompany Ms. Herbert, as at times, she must look after her husband. To prevent Ms. Herbert from driving independently would constitute a huge restriction on her liberties. Further, the forensic team can report Ms. Herbert to the Ministry of Transport if she is ever considered unfit to drive.
With regard to a firearms prohibition Mr. Byers submitted that only Ms. Herbert’s mother has a key to the gun cabinet. That key is hidden such that Ms. Herbert has absolutely no access to firearms. Additionally, new RCMP restrictions require that the family cannot move or sell firearms as they are registered.
Analysis and Decision
(a) Significant Threat
Ongoing significant threat to the safety of the public cannot be speculative. It must entail a real risk of serious physical or psychological harm arising from conduct that is both serious and criminal in nature.
In determining whether Ms. Herbert continues to represent a significant threat to the safety of the public the Board has carefully analyzed the evidence as it relates to the Supreme Court of Canada decision in Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
The Board unanimously finds that Ms. Herbert continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the joint position of the parties and accepted the uncontroverted evidence of Dr. Mishra that Ms. Herbert continues to pose a significant threat. The Board also relies on the Hospital Report and the Composite Assessment of Risk contained therein at page 41and reproduced below for ease of reference in determining that Ms. Herbert suffers from a major mental illness: Schizophreniform Disorder (by history).
According to R. v. Winko, a “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to the harm must be criminal in nature. Further, it is noted that evidence to determine whether an individual is a significant threat to the safety of the public can include the past and expected course of the NCR accused’s treatment, if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community, as well as other items.
It is my opinion that Ms. Herbert presents a significant threat to the public safety, based on the factors noted above. Acts of violence can be anticipated when she is experiencing symptoms of her illness, as was evident from the index offense. This could likely be related to her ability to drive safely. She has gained good insight into her mental illness, the symptoms arising and the relationship between her illness and the index offense. She was compliant with treatment and has remained engaged in follow-up with the mental health team and her psychiatrist. She had discontinued antipsychotic medication under the supervision of a psychiatrist and has been medication free for the past 7 months. She will need to be closely monitored going forward to detect any signs of relapse so that early intervention can be offered. The structure and support provided under the auspices of the Ontario Review Board that remains necessary to ensure supervision and support to monitor her recovery and manage his risk to public safety.
The Board would further highlight that Dr. Mishra’s comments that Ms. Herbert has good insight into her mental illness as referenced in the preceding extract and as referenced under the previously cited Mental State Examination heading at page 32 of the Hospital Report do not account for her inability to recognize signs of relapse. This lacuna to her insight is addressed at page 37 under the Clinical Scale Items heading, reproduced below for ease of reference:
Recent problems with insight: This related to Ms. Herbert’s understanding of the risk of relapse and the factor that had contributed to the index offense and the need for treatment. Her understanding and account of the onset of symptoms seem to differ from what was noted in various records. She was very adamant that she would be able to recognize any symptoms if they were to recur and seek help. This suggested a somewhat superficial understanding of the illness process i.e. that insight could be lost very early due to the nature of the symptoms. She attributed her problems to the stress of the relationship. She had insisted on a very rapid discontinuation of medication with her treating psychiatrist against the recommended duration.
Additionally, Dr. Douglas’ Report noted that Ms. Herbert did not seem to appreciate her risk of relapse.
The Board therefore accepts that absent its oversight, future acts of violence, that are criminal in nature, are likely. Symptoms of Ms. Herbert’s pharmacologically untreated mental illness, similar to those seen at the time of the time of the index offence, could re-emerge, to again cause serious physical harm to members of the public.
(b) Disposition
Flowing from the Board’s finding that Ms. Herbert continues to pose a significant threat to the safety of the public it must shape a Disposition for the year ahead. Its paramount consideration in doing so must be the safety of the public while also considering Ms. Herbert’s needs pursuant to s. 672.54 of the Criminal Code.
The necessary and appropriate disposition for Ms. Herbert provides her as much freedom as possible without subjecting the community to a real risk of dangerous behaviour. The parties jointly submitted and the panel unanimously accepts that a Conditional Discharge Disposition is both necessary and appropriate for the year ahead. The inclusion/deletion of a number of recommended provisions were nonetheless contested by the parties and this panel’s decision in regard to these follow:
travel outside of Canada with an approved itinerary and approved person for up to 14 days
The panel is not prepared to grant the proposed travel provision. These are very early days for Ms. Herbert under the jurisdiction of the Board and the care of a new treatment team. Dr. Ismail, Ms. Herbert’s assigned outpatient psychiatrist has yet to meet, assess, let alone have the opportunity to establish a therapeutic rapport with her, nor have any other members of his Forensic Mobile treatment team. Therefore, a more conservative duration of travel, as well as a more conservative geographic limitation for travel are necessary and appropriate to read as follows:
remain within the Province of Ontario except for passes up to 7 days upon first obtaining approval of her itinerary by the person in charge of the hospital or his or her designate.
Ms. Herbert is a primary care-giver for her senior parents, one of whom is a triple amputee. International travel in tandem with that responsibility may prove destabilizing. This concern is magnified as Ms. Herbert is currently not receiving any psychotropic medication that could delay a decompensation of her mental state outside the jurisdiction of this Tribunal. Further, she is also currently prescribed two medications that according to Dr. Mishra, have the potential to precipitate a relapse. Finally, an additional degree of caution is required as Ms. Herbert had never previously experienced a mental decompensation and does not fully grasp that a future relapse cannot be discounted, with the very real possibility of catastrophic consequences, similar to those seen at the time of the index offences.
refrain from having in her possession any firearm, ammunition of other offensive weapon, or being in the company of any person possessing a firearm other than a peace officer.
The panel sees no justification by which Ms. Herbert should be allowed to reside in a home with firearms close at hand, albeit locked in a gun cabinet with only the patient’s mother knowing where the key is kept. If in fact there are federal restrictions mandating that registered firearms cannot be moved or transferred then the specific provision reproduced above, contained within this Board’s Disposition, must be brought to the attention of the RCMP. Firearms, as submitted by Ms. Curry are weapons of opportunity, only used for lethal purposes and therefore must not be kept within the home of someone who previously used a car as a weapon of opportunity with catastrophic consequences. Additionally, the evidence before us is that Ms. Herbert:
is unable to fully grasp that a future relapse of her mental state may in fact occur,
has never previously experienced a mental decompensation,
prescribed two medications have the potential to precipitate a relapse,
not prescribed any psychotropic medications.
advise the Person-in-Charge of the hospital or his or her designate, in advance of any absence from her residence of 24 hours or more;
report to the Person-In-Charge of the Waypoint Centre for Mental Health Care or his or her designate, not less than once every 2 weeks;
Mr. Byers initially submitted that the above noted 24 hour reporting requirement should be extended to 72 hours whenever his client chooses to leave her residence for an extended period. The rationale buttressing this request was that Ms. Herbert was doing well in the community. Dr. Mishra on behalf of the hospital testified that a simple notice requirement within 24 hours of any absence from Ms. Herbert’s residence is not particularly onerous and should remain in place given that Ms. Herbert is not otherwise subject to close oversight. He categorized the proposed reporting requirement intended to mitigate the possibility of harm occurring. The Hospital’s recommendation was ultimately not addressed by Mr. Byers in his closing submissions. The panel is therefore prepared to accept the Hospital’s recommendation because it does not significantly impact Ms. Herbert’s freedom of movement while enabling a safeguard to public safety.
The hospital reporting requirement of a minimum of every two weeks was initially challenged by Mr. Byers as overly onerous to his client. Dr. Mishra subsequently testified that contact with the Forensic Mobile Team remains necessary every two weeks in order to monitor Ms. Herbert’s mental state and exercise the return to hospital provisions of the MHA if she decompensates. Mr. Byers withdrew his objection to the recommended frequency of reporting after hearing that a member of the Forensic Mobile Team could come to see Mr. Herbert at her residence every four weeks, as it was anticipated she would only have to be seen in hospital at the same frequency within two weeks of each home visit.
The panel accepts that a two weeks reporting requirement remains necessary and appropriate to oversee and monitor Ms. Herbert’s mental stability for essentially the same reasons as to why a firearms prohibition is deemed necessary and appropriate. Again, Ms. Herbert:
is unable to fully grasp that a future relapse of her mental state may in fact occur,
has never previously experienced a mental decompensation,
prescribed two medications have the potential to precipitate a relapse,
is not prescribed any psychotropic medications
refrain from driving a motor vehicle
Ms. Curry maintained the position that the Attorney-General was seeking either a driving prohibition or specific restrictions as to when and under what circumstances.
Panel members observed that that during the course of this hearing Ms. Herbert’s speech when communicating with Mr. Byers was quick and elevated and she was noted to be laughing when her lawyer’s questions to Dr. Mishra focused on her ongoing ability to drive.
However, the totality of the evidence does not support the addition of a driving prohibition. Information regarding this matter was gleaned from Dr. Mishra’s testimony notwithstanding that it was not addressed by him in his Risk Assessment Report. Of note is that a driving prohibition was not included among the Hospital’s recommendations. More specifically, Dr. Mishra testified that:
he sees no reason to report Ms. Herbert’s inability to drive to the Ministry of Transport,
Drs Wilkie, Hanby Douglas were under the same obligation to report Ms. Herbert to the Ministry of Transport if they considered her unfit to drive and did not do so,
Ms. Herbert’s ability to operate a motor vehicle is an important reintegrative and rehabilitative factor as she resides in an isolated area.
Ms. Herbert has been driving without incident since her license was reinstated in 2023.
The two week reporting requirement ensures the clinical team will have the ability to monitor and address any concerns that may arise regarding this patient’s entitlement to drive to the Ministry of Transport so that Ms. Herbert is not mentally decompensated while driving.
Ms. Herbert’s mother is a caregiver to her husband. She may therefore not always be available to accompany Ms. Herbert. Therefore, the panel finds that to restrict Ms. Herbert’s ability to drive, given the remote location of where she lives is overly onerous having regard to the forensic oversight and associated reporting requirements she is now subject to. Again, Drs. Mishra, Wilkie, Hanby and Douglas did not feel a need to report any concerns vis-a-vis Ms. Herbert to the Ministry of Transport and she has been driving without incident since 2023.
refrain from contact or communication by any means, direct or indirect with the victims but for incidental contact within a courthouse[emphasis added]
Finally, this panel of the Board is prepared to grant Mr. Byers’ uncontested request that there be an exception added to the above noted no-contact provision, bolded for ease of reference, to allow for incidental contact within a courthouse as a result of the civil suits that have been initiated against his client.
Conclusion
Therefore, the Board unanimously determines that the necessary and appropriate Disposition required to manage the threat Ms. Herbert poses to the safety of the public while still meeting her needs, is a Conditional Discharge Disposition with the amendments set out in these Reasons For Disposition.
In arriving at this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Mishra and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, Ms. Herbert’s mental condition, her reintegration into society and other needs.
DATED this 27th day of March 2025, at the City of Toronto, in the Toronto Region.
Mr. P. Capelle
Alternate Chairperson
Office of the Registrar
Ontario Review Board