Ontario Review Board
Re: Allen B. Durette
ORB File No: 4630
Hearing held on: Thursday, March 13, 2025
Place of hearing: Centre for Addiction and Mental Health
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. S. Clapp
Members: Dr. R. Sheppard Dr. S. Lessard Mr. D. Sandor Mr. J. Cyr
Parties Appearing:
Accused: Allen B. Durette Counsel: Ms. C. Whillier
The Person in charge of Hospital: Representative: Ms. A. Marshall
Attorney General of Ontario: Counsel: Mr. D. Brandes
REASONS FOR DISPOSITION
(Dated May 6, 2025)
Introduction:
On December 8, 2006, Allen B. Durette was found not criminally responsible by way of mental disorder on charges of assault, assault peace officer, utter threat to cause death or bodily harm, and mischief under $5000, all contrary to the Criminal Code of Canada. He is subject to a disposition of the Ontario Review Board, dated April 11, 2024, detaining him at the Forensic Service of the Centre for Addiction and Mental Health, Toronto (hereinafter referred to as “CAMH” or “the Hospital”) with privileges up to and including that of living in the community in accommodation approved by the person in charge of the Hospital. That disposition also subjects him to certain conditions, including that of abstaining absolutely from the non-medical use of alcohol or drugs or any other intoxicant and that of submitting sample for the purpose of monitoring his compliance with the abstention condition.
On March 13, 2025, a panel of the Ontario Review Board convened a hearing to review that disposition pursuant to section 672.81(1) of the Criminal Code. Mr. Durette was present for the hearing, represented by his lawyer Ms. Whillier.
The record for the hearing consisted of the Notice of Hearing dated September 11, 2024, the most recent Disposition (as mentioned, dated April 11, 2024) and the Reasons for that Disposition dated April 25, 2024. On the consent of all parties, a Hospital Report, dated March 7, 2025, was entered into evidence as an exhibit.
The parties were canvassed for initial positions. The Hospital’s representative took the position that Mr. Durette continued to represent a significant risk to the safety of the public as that term is defined in section 672.5401 of the Criminal Code and as it has been further explained by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. She also expressed the position that it was necessary and appropriate, having regard to the objectives set out in section 672.54 of the Criminal Code, for Mr. Durette to be detained with privileges and conditions identical to those found in the detention disposition under review.
The representative of the Attorney General agreed with the Hospital on all issues.
Counsel for Mr. Durette indicated that the threshold issue of significant threat to the safety of the public was in issue but submitted that if Mr. Durette were found to represent a significant threat, then it would be both necessary and appropriate to continue the reigning disposition. She indicated that this would assure the safety of the public as the primary objective and would also ensure that Mr. Durette’s mental health and other needs were met, including the ultimate objective of reintegration into the community.
For the following reasons, the Board has determined that Mr. Durette continues to represent a significant threat to the safety of the public. It has further concluded that it is necessary and appropriate to continue the existing detention disposition. In coming to this conclusion, the Board specifically considered the application of section 672.54 of the Criminal Code.
Evidence at the hearing
The evidence at the hearing came from the Hospital Report mentioned and from the live evidence offered by Dr. I. Swayze, Mr. Durette’s treating psychiatrist.
Turning first to the Hospital Report, it provides a summary of the index offences as contained in previous Reasons for Disposition:
On June 19, 2006, Mr. Durette attended an LCBO store in downtown Toronto. He was seen by store security attempting to steal a bottle of liquor by concealing the bottle down the front of his pants. After being escorted outside, he threatened to kill the security guards and spat on one of them. When they tried to arrest him, he struggled, further assaulting one of the officers. While later being transported by police to the local division, he kicked the back passenger door of the car, completely smashing its window. He then spat directly towards an officer’s face, nearly hitting him.
- The Hospital Report contains many details about Mr. Durette’s personal history, psychiatric history, and history of difficulties with alcohol and drugs. It also sets out the long history he has had under the jurisdiction of the Ontario Review Board. Mr. Durette is now 65 years old. He has limited education and employment history. Prior to coming under the jurisdiction of the Ontario Review Board, he experienced numerous admissions to hospitals for expressed suicidality, bizarre behaviours, and psychotic symptoms that could not be explained by personality or substance abuse factors alone. He began drinking at age 13 and has abused cannabis, cocaine, and heroin in the past. His drug use has figured prominently in his criminal history. That history includes both provincial and federal sentences dating back to 1975. He has a poor record of following through with probation and parole and over 100 convictions for offences that include assault, assault causing bodily harm, assault with a weapon, assault police, theft, robbery, threatening, breach of probation, break and enter and violating parole. The circumstances of his arrests are remarkably similar, involving aggressive, threatening or physically assaultive behaviour. While not always noted as a contributing factor, alcohol use has figured in several of those instances. His manifestations of rage and paranoid beliefs are also recurring themes in the commission of criminal acts targeting complete strangers. His current diagnoses are:
Schizophrenia, residual type
Alcohol Use Disorder
Antisocial Personality Disorder
He also struggles with an “Unspecified Cognitive Disorder.”
The Hospital Report’s update for the purposes of this annual review began on page 32, though there is also an important notation on page 5 of the report that states that, over the past reporting year, Mr. Durette consumed alcohol on at least 3 occasions, each correlating with an unauthorized elopement from his residence. He has had another problematic year. He continues to reside at the Pipe and Slipper home located in Keswick, Ontario. This approved accommodation is a 24-hour supervised residence under the administration of the Community Homes for Opportunity program. He is provided with significant support there. He receives supervised administration of meals, medication, and activities of daily living.
While Mr. Durette has been generally cooperative with the expectations and rules of his residence, including those that are in place regarding medication, there have been multiple incidents of concern, including the three abscondments mentioned above. On the first , occasion he bought alcohol and returned in an intoxicated state. On the second occasion he was coincidentally intercepted by residence staff and returned to the Pipe and Slipper home. He had significant funds with him and admitted his intention to purchase and consume alcohol. Three days later, on June 15, 2024, he left the residence again, refused to return with staff and was ultimately picked up by the police as he waited outside an LCBO for it to open.
Mr. Durette has not engaged in any episodes of distinct violence over this reporting period but has manifest a “short temper” towards staff. His major mental illness is treatment resistant. He has Hepatitis C, and his mood is described as labile with prominent irritability. He continues to show cognitive deficits. He declines treatment for the Hepatitis C but has been treatment compliant when it comes to his antipsychotic medications. His insight is nonexistent in spite of regular psychoeducation. He maintains that his actions at the time of the commission of the index offences were warranted and had no relationship to his schizophrenia or alcohol misuse illness. He does not link his history of substance misuse to periods of aggression, precipitation/exacerbation of psychosis or level of risk. He declines programming for alcohol misuse. Cognitively, he would find relapse prevention programming challenging.
Mr. Durette has few protective factors outside of the confines of the Ontario Review Board’s disposition and the supports and services provided by the treatment team and staff at the Pipe and Slipper house. He is socially isolated. He has no peer groups or relationships and has maintained no contact with family. He continues to decline referrals for local mental health services like the ACTT program. The treatment team has expressed concern that community mental health services may not be adequate to manage Mr. Durette’s risk. Mr. Durette disputes his schizophrenia diagnosis. He denies that his illness has had any impact on his history of aggression and does not believe that he is at risk of any aggressive behaviour in the future. If granted an absolute discharge, he has indicated he would go to the Seaton House (a homeless shelter in Toronto) and then find a place of his own. He has said that he would drink “socially.” He has said that he would not be willing to see a psychiatrist and that he does not believe that he would need to take antipsychotic medication.
The Hospital Report includes a Risk Assessment beginning at page 36. The sufficiency of both its analytical data and method of completion was not challenged at the hearing. It notes the importance of current supports and supervision being provided to Mr. Durette under the reigning ORB detention disposition. Mr. Durette’s current attitude towards authority supports him following his legal obligations. This helps him receive a high degree of professional support in a highly supportive living environment supported by the order of the Ontario Review Board. His risk is considered moderate. His re-offence scenario is described in the following terms:
Mr. Durette has a history of rapid relapse in the community. He remains at high risk of having difficulties coping with stressors, giving little forethought to decisions, and blaming others. If Mr. Durette is to re-offend, it will likely occur in the context of lack of support, supervision, and structure. He does not have a reliable social network and remains at high risk of isolation. Isolation has been a major trigger for his return to alcohol and drug use. In the past, substance use has led to criminal behaviours, violating curfews, and violent behaviour. Substance use has likely also compromised his compliance with medication. The latter has been associated with a relapse of his psychotic symptoms, increased risk of aggression and readmission to hospital.
- The Hospital Report goes on to outline Mr. Durette’s Risk Management factors. These include the continuation of negative symptoms of schizophrenia that continue to represent a significant barrier to his progress. He continues to struggle with Alcohol and Substance Use Disorders. His anti-social personality disorder requires consistent reinforcement of rules, as well as goal-oriented and reward-oriented strategies. In refuting the appropriateness of granting him an absolute discharge, the Hospital Report says:
Mr. Durette presents with an actuarial assessment of static long-term risk indicating a high risk of violent and sexual recidivism. He has, in addition, numerous, and significant dynamic or clinical criminogenic risk factors. As such, the clinical team does not support consideration of an absolute discharge.
Mr. Durette has, however, remained in the community since discharge from hospital in July of 2021 and should be commended as such. His successful placement in the community has occurred, however, in the context of significant supervision and support, specifically psychiatric follow up with the Forensic Outpatient Service at CAMH and placement in supervised residences, which have formed the cornerstone of Mr. Durette’s risk management and success to date, ensuring vigilant medication compliance and minimizing substance use.
Mr. Durette, however, consistently voices his intention, should he be discharged absolutely, to distance himself from all mental health supports, including pharmacological treatment. He also intends to resume alcohol and substance use. Should both, or either, of these occur it is predictable Mr. Durette would rapidly deteriorate and behavioural control [would be] lost.
In his oral evidence, Dr. Swayze adopted the contents of the Hospital Report and provided the panel with a helpful update. He explained that Mr. Durette’s mental status remained unchanged though there was a recent “epiphany” as Mr. Durette said that he does not want to use alcohol in the future and that the Naltrexone prescription he has been receiving has suddenly become effective. Mr. Durette has been taking Naltrexone to control his cravings for 5 years. Dr. Swayze expressed measured hope that Mr. Durette was being sincere in this regard.
After affirming the three mentioned abscondments Mr. Durette engaged in over this reporting period to obtain alcohol, Dr. Swayze said that, in the context of an absolute discharge, there is “very close to zero likelihood” Mr. Durette would take his prescribed antipsychotic medications. Dr. Swayze said that Mr. Durette does not believe that he has a major mental issue and does not believe that he has derived any benefit from his treatment. Dr. Swayze explained that there is no structure set up for Mr. Durette in the community for him to receive his Clozapine and that, even if there were, Mr. Durette is not interested in continuing with its use absent an ORB disposition. Dr. Swayze described the risk associated with Mr. Durette’s contemplated non-compliance with his antipsychotic medication. Dr. Swayze said that the efficacy of the Clozapine would wane quickly, and Mr. Durette would immediately use alcohol. He expressed concern of the effect of this on Mr. Durette’s mental stability, particularly when the alcohol abuse and schizophrenia are superimposed on significant neurological difficulties. Dr. Swayze predicted that there would be “immediate” involvement with the police and said that the risk would be “about as high as it could be.” He said that Mr. Durette has made it clear that he would not stay at the Pipe and Slipper house and that his cognitive impairments and psychiatric difficulties are so severe that Mr. Durette would not be able to access housing.
In response to questions from counsel for Mr. Durette, Dr. Swayze reiterated the concerns set out in the Hospital Report and gave further information as to how the Pipe and Slipper house is well-suited for the situation. He explained that the Pipe and Slipper is located in Belhaven where environmentally it is isolated from bars and restaurants where alcohol is served. Dr. Swayze was not confident there was a convenience store in the area. Dr. Swayze spoke of the important level of support and supervision provided at Mr. Durette’s residence and framed it in terms of necessity when it comes to Mr. Durette’s risk management. He also testified as to Mr. Durette’s risk of recidivism for sexual re-offending, which is placed at an 80% risk of recidivism in the Hospital Report. Dr. Swayze explained that there is a history of sexual offending with Mr. Durette prior to his coming under the Board’s jurisdiction. He referenced page 36 of the Hospital Report and pointed out that the sexual offending history is part of the over 100 convictions mentioned. He noted, however, that this risk is managed in the context of the Board’s detention disposition and while Mr. Durette is living at the Pipe and Slipper. He explained that this is because of the elevated level of control exercised by management in what is an all-male residence situated in a remote location that offers quick response to abscondments.
Submissions
At the end of the hearing the parties renewed their submissions as set out at the beginning. The Hospital and the Crown both argued that the evidence was overwhelming that Mr. Durette continued to represent a significant threat to the safety of the public and that a continuation of his detention disposition without change was necessary and appropriate to assure the safety of the public, which remains the Board’s primary objective.
Counsel for Mr. Durette expressed that Mr. Durette wanted the Board to know that he is a good man. She emphasized the positives from the past year under review, including that, since the June abscondment, Mr. Durette had not used alcohol. She argued that his risk could be managed under a community treatment order. She reaffirmed that, if the threshold were found to exist, Mr. Durette would be agreeing to a continuation of the existing detention disposition.
Analysis and Conclusion
As stated, the panel has concluded that Mr. Durette continues to represent a significant threat to the safety of the public. This threshold consideration is not made on the basis alone that Mr. Durette suffers from a major mental illness. Applying the standard set out in Winko, the Board is mindful that there must be a tie between an alleged factor (mental illness, lack of insight, lack of supports, etc.) and a serious risk the public will suffer serious physical or psychological harm such as is contemplated in section 672.5401 of the Criminal Code. There must be a significant likelihood that Mr. Durette will commit serious criminal acts that are significantly likely to result in serious harm. The threshold can only be described as “onerous.”
The threshold is met in these circumstances by virtue of several factors tied directly to Mr. Durette’s schizophrenia, alcohol and substance use disorder, and anti-social personality disorder. The index offence, while dated, is serious and comes in a context of over 100 other criminal offences the circumstances of which have been described as being remarkably similar. Mr. Durette’s major mental illness has contributed to his repeated acts of criminality that continued through to the point of his being placed under the jurisdiction of the Ontario Review Board. Mr. Durette has no insight into his mental illness, the way it, and use of alcohol contributed to the commission of the index offences, nor into his need for medication. He has not engaged successfully in any form of group or individual programming designed to address his problems with alcohol and substances. He denies that he has schizophrenia or any difficulties with alcohol, notwithstanding 3 abscondments for the purpose of consuming over the course of this past year.
While it is true that these abscondments took place almost 11 months prior to this annual review, it is also clear that this is not owing to the exercise of any insight or improvement on the part of Mr. Durette. It can only be accredited to the important level of support and supervision offered in a very controlled environment that is situated in a remote community. Absent a disposition, there is a very high likelihood that Mr. Durette will cease his medications, leave the supervised and supportive environment, become homeless, consume alcohol, and quickly begin to show the primary symptoms of his major mental illnesses that informed the index offences and appear to have figured in the commission of several other offences noted on a lengthy criminal record.
Counsel for Mr. Durette argued that he could be subject to a community treatment order as opposed to a detention disposition. Mr. Durette is not currently the subject of a community treatment order, and the Board did not receive any evidence that supported the conclusion that he would be granted one should the application be made at any time.
Turning to the issue of disposition and having made the threshold finding, the Board then benefits from the joint submission for the continuation of the reigning detention order without changes. This, in our view, is entirely appropriate.
Looking firstly at the primary objective of assuring the safety of the public, Mr. Durette suffers from major mental illnesses that have led to the commission of serious criminal acts including the index offences. He has no insight into his mental illness, need for medications, the impact that use of substances has upon his symptoms, or the link between all of these factors and the risk he poses to members of the public. It is only by virtue of the detention disposition and his placement at the Pipe and Slipper house that public safety is maintained. In this setting, medication is regularly administered, he is supervised, and he is in a male-only residence that answers concerns that are apparent in the Hospital Report and on the evidence offered by Dr. Swayze.
The detention disposition is also necessary and appropriate when considering Mr. Durette’s mental health and other needs, including the ultimate objective of reintegration into the community. Were it not for his current placement under the confines of the detention order, Mr. Durette would leave his residence, become homeless, and lose the supports provided that ensure his mental stability. He has no family, few peer friendships, and no structure set up in the community to support his mental wellness and need to abstain from the use of substances and alcohol absolutely for the rest of his life. The evidence of risk of violence, including violence with the police, is concerning not just for the safety of the public but in terms of Mr. Durette’s own mental health and other needs. Meanwhile, under the reigning detention disposition, Mr. Durette has access to a community, programming, and supports for medication and daily needs.
Asking the question “why is a lesser disposition insufficient to ensure that the objectives set out in section 672.54 of the Criminal Code are met”, the Board notes the evidence that Mr. Durette is resolute in his position that he does not suffer from a major mental illness, that he can live in a homeless shelter and then find himself a place in spite of his psychosis and cognitive difficulties, and that he neither needs medication nor should be required to abstain from drinking alcohol. All of this renders any form of discharge inappropriate having regard to the objectives set out in the Criminal Code and leaves the Board with only one conclusion, being that it is necessary and appropriate that a detention disposition be made.
An order will issue accordingly.
The Board thanks Mr. Durette and all who have assisted in this hearing.
DATED this 6th day of May, 2025 at the City of Toronto, in the Toronto Region.
Mr. D. Sandor
Legal Member
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Office of the Registrar Ontario Review Board