Re: Stephen N. Berard, 2025 CanLII 49368

Ontario Review Board

Re: Stephen N. Berard

ORB File No: 7773

Hearing held on: Monday March 31, 2025

Place of hearing: Royal Ottawa Mental Health Centre

Pursuant to: Section 672.81(1) of the Criminal Code

Before: Alternate Chairperson: Ms. C. Finley Members: Dr. S. Lessard Dr. S. Wiseman Mr. D. Sandor Ms. N. Lemieux-McKinnon

Parties Appearing: Accused: Stephen N. Berard Counsel: Ms. M. Munsterman

The Person in charge of Hospital: Representative: Dr. A. Sandhu

Attorney General of Ontario: Counsel: Mr. J. Wright

REASONS FOR DISPOSITION

(Dated: May 27, 2025)

Introduction:

1On September 9, 2020, Stephen Berard was found not criminally responsible on account of mental disorder on charges of aggravated failure to report to a probation officer, criminal harassment and secretly observing a person expecting privacy, contrary to the Criminal Code of Canada. He is subject to a disposition of the Ontario Review Board, dated February 23, 2024, discharging him on certain terms and conditions including to report to the person in charge of the Royal Ottawa Mental Health Centre (hereinafter referred to as “the Hospital”) not less than twice per month, and to abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant. He is also required, under the terms of that conditional discharge, to submit samples for the purpose of monitoring his abstention from drugs or alcohol, and to have no contact or communication with the victim of the index offence. On his consent, the conditional discharge also included a treatment condition.

2On March 31, 2025, a panel of the Ontario Review Board convened a hearing at the Hospital to review that disposition pursuant to section 672.81(1) of the Criminal Code. Mr. Berard was present for the hearing, represented by his lawyer Ms. Munsterman.

3The record for the hearing included the Notice of Hearing, the most recent Disposition (as mentioned, dated February 23, 2024) and the Reasons for that Disposition. On the consent of all parties, a Hospital Report, dated March 21, 2025, was entered into evidence as an exhibit.

4The parties were canvassed for initial positions. Dr. Sandhu, Mr. Berard’s treating psychiatrist spoke for the Hospital. He expressed the position that Mr. Berard no longer represented a significant threat to the safety of the public as that term has been defined by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, and that, as such, he was entitled to an absolute discharge.

5The representative of the Attorney General anticipated agreement with the Hospital, subject to questioning. Counsel for Mr. Berard indicated agreement with the Hospital. By the end of the hearing, all parties agreed that Mr. Berard no longer represented a significant threat and accordingly should be granted an absolute discharge.

6For the following reasons, the Board has concluded that the evidence does not establish that Mr. Berard represents a significant threat to the safety of the public to the standard required by the Supreme Court of Canada in Winko. He has been granted, accordingly, an absolute discharge.

Evidence at the hearing

7The evidence at the hearing came from the Hospital Report mentioned and from the live testimony offered by Dr. Sandhu. Turning firstly to the Hospital Report, it is cumulative in nature and includes a summary of the index offences.

In early 2020, Mr. Berard was on probation orders relating to previous convictions. He did not attend appointments with his probation officer in March 2020.

On the March 31, 2020, at 21:16 Mr. Berard was located by security trespassing inside of the TD bank vestibule located at 45 O'Connor Street. Ottawa Police Constables were called to remove the accused from this location. Upon police arrival, he was observed sleeping and appeared to be in an intoxicated state. The accused had an empty marijuana box beside him and was unable to identify himself. He had difficulty speaking and staying awake. After attempting to identify the accused, officers located various pieces of mail located on the accused, none of which were in his name. Inside the opened mail, there were numerous cheques totaling $5991.92, none of which were issued to Mr. Berard. A small iPad was located within the vicinity of the accused that was determined to not be his.

On April 1, 2020, Ms. Rachelle Gray returned to her home between the hours of 18:00 and 19:30. Mr. Berard was in the front vestibule of her building, and he identified himself to her as "Stephen". He asked for a lighter, then went on to ask her name, and how old she was. He told Ms. Gray she was cute and asked if she wanted to do something, he also told her that he was normally 'hotter' than he looked at that particular time. Ms. Gray was very uncomfortable and fearful and went directly to her unit. Once inside her unit she could hear Mr. Berard still in the front vestibule calling her name, this made her more fearful as she was alone in the unit during this time.

On April 2, 2020, Ms. Gray returned home from working a night shift at approximately 08:00. She and her boyfriend, Mr. Ryan Trudel, were both inside their apartment when Mr. Trudel noticed that there appeared to be someone leaning in and looking into their front window. Ms. Gray saw that it was Mr. Berard. Ms. Gray and Mr. Trudel went to the bathroom, turned off all the lights and called the police providing a description of Mr. Berard. At 08:46, an Ottawa Police Service (OPS) Constable walking close by placed Mr. Berard under arrest. This was the sixth time since March 27, 2020, that Mr. Berard had been dealt with by OPS for being on properties, looking into windows and being on balconies and fire escapes. He was not criminally charged in the previous incidents.

8The Hospital Report outlines Mr. Berard’s personal history, criminal history, history of substance use and course while under the jurisdiction of the Ontario Review Board on the index offences. He is now 42 years of age. He has three children from previous relationships with whom he has little contact. He began using substances as a teenager and became aggressive and threatening to family when actively using. His first use of cocaine was around the age of 15. He has used multiple substances including heroin, fentanyl, and intravenous drugs. He has a lengthy criminal record that runs from 2004 to 2019 and includes convictions for mischief, aggravated assault, arson, theft, uttering threats, break and enter, and failure to comply with a probation order and with terms of judicial interim release. He has a history of psychotic symptoms dating back to 2009. He is currently diagnosed with:

• Schizophrenia, in partial remission
• Stimulant, Opioid and Cannabis Use Disorders, severe, in sustained remission
• Antisocial Personality Traits.

9These are the same diagnoses that were noted in the most recent Reasons for Disposition. At paragraph 31 of those Reasons the panel stated the following:

Mr. Berard has a complex psychiatric profile where his primary diagnosis of Schizophrenia is longstanding, and it was exacerbated in the past by substance use and lack of adherence to prescribed anti-psychotic medication. His level of insight appears to be adequate, however there is evidence that suggests that it is only partially present, but that he is open to education. The main areas of concern are possible future problems with stress management, personal supports and treatment response or supervision. Although we also note that he has demonstrated a level of commitment to working with his case managers and his treatment team and he is consistently participating in group programs.

10In this context, the comments contained in the Hospital Report pertaining to each of Mr. Berard’s diagnoses are important. As to schizophrenia, the Hospital Report says that he has not demonstrated positive symptoms of schizophrenia over the course of the past reporting period. With regard to the stimulant, opioid and cannabis use disorders, Mr. Berard has not demonstrated any relapses in the past year, and all drug screens have come back negative. Finally, regarding his diagnosis of antisocial personality traits, the Hospital Report says that, as Mr. Berard has maintained his abstinence from substances, he has not demonstrated consistent aggression, rule-breaking behaviour or difficulties with antisocial influences and has more recently demonstrated ability to adhere to prosocial behaviours.

11Turning to evidence in the Hospital Report pertaining to his insight, it appears that Mr. Berard’s insight has continued to improve since the last review. He has provided insights that his prior patterns of substance use were associated with traumatic events. He has improved in his insight with respect to his diagnosis and its associated symptoms. He has demonstrated an improvement of negative symptoms of schizophrenia with increased activity and range of emotional expression. The Hospital Report also describes an array of pro-social activities undertaken by Mr. Berard and details an increased ability to manage significant stressors in appropriate ways. It details a positive therapeutic alliance with the treatment team and with group home staff. Mr. Berard did not display any signs of aggression when he learned that his mother had been the victim of an assault. He followed through with a referral to social work for help with his personal income taxes and benefits. He worked with the team social worker to reinstate his GST payments. He enjoyed prosocial activities at the group home and presented as stable both mentally and in terms of his ability to abstain from the use of substances. Throughout all of this, he did not display any aggression, forms of violence, or suicidal or self-harming ideations. He has been consistent and punctual for his appointments both in the Hospital and in the community. He has been engaged, polite and pleasant and has been able to set appropriate boundaries even when rules at his group home came into conflict with his mother’s interactions with him. He has successfully initiated and set out a plan for payment of outstanding tickets. He has expressed a willingness to continue his involvement with existing supports both in and outside of the Hospital.

12The Hospital Report includes a Violence Risk Assessment. Its contents and methodology were not questioned by the parties over the course of the hearing. After considering static historic factors that are unenviable, the Violence Risk Assessment concludes that Mr. Berard presents a moderate risk of future violence. In drawing this conclusion though, the Hospital Report says that

Mr. Berard presents with no clinical (current or recent) risk factors. I do not have evidence to support recent problems with violent ideation, recent problems with instability of thinking, emotional expression, or behaviour, recent problems with insight, recent problems with symptoms of major mental disorder or recent problems with treatment or supervision response.

Over the treatment year, he has improved in his insight with respect to a diagnosis of schizophrenia and the associated symptoms. He has also demonstrated an improvement in negative symptoms of schizophrenia with increased activity and range of emotional expression.

It also says, with regard to risk management factors, that

Mr. Berard’s stable housing in the form of his Upstream group home, commitment to working with professional support including psychiatric follow-up, medication and follow up adherence (self-report and urine drug screens) indicate that he has improved with his engagement in his treatment planning.

13In his oral testimony given at the hearing, Dr. Sandhu testified that he had taken over care of Mr. Berard a few months prior to the 2024 annual review from Dr. de Laplante. He said that, at that time, Dr. de Laplante had indicated that Mr. Berard was on a positive trajectory. Dr. Sandhu indicated that this positive trajectory had continued such that it cannot be said that these are recent developments in terms of Mr. Berard’s progress. He confirmed that Mr. Berard continued to live in the community, continued to report to the Hospital when asked, and that he was prompt and engaged in all of his appointments. Dr. Sandhu confirmed that Mr. Berard has consistently tested negative for all substances. Mr. Berard was assiduous in taking his antipsychotic medication Clozapine and would continue to be associated with the Hospital and Dr. Sandhu in the context of an absolute discharge for administration of this prescription. Dr. Sandhu confirmed that Mr. Berard has handled stresses well and that his sustained abstinence from the use of substances and alcohol contributed to his stability in the community. He spoke to Mr. Berard’s pro-social relationships and care for his own mother. He specified that, for Mr. Berard, the pro-social relationships were protective. He valued them and did not want to risk losing them by a return to substances or lapse into noncompliance with anti-psychotic medications.

14In response to questions from the representative of the Attorney General, Dr. Sandhu indicated that Mr. Berard has no association with or focus on the victims of the index offence. He does not display any persistent anti-social traits, most of which were manifest in the context of Mr. Berard’s attempts to fuel his substance use.

15In response to questions from Mr. Berard’s lawyer, Dr. Sandhu repeated that testimony and said that Mr. Berard had insight into his major mental illness, ongoing need for medications, the impact of substances on major mental illness and into the circumstances of the index offence. Mr. Berard has been able to identify that his use of substances was a major contributing factor to his homelessness, decompensations and to the commission of the index offences. Dr. Sandhu said that while Mr. Berard accepts that it was the schizophrenia that drove the index offences, this did not stop him from feeling remorse for the suffering those index offences caused. Dr. Sandhu said that this was a protective expression of Mr. Berard’s global insight.

16On the issue of housing, Dr. Sandhu testified that Mr. Berard’s accommodations will not be threatened by an absolute discharge. He testified that Mr. Berard likes where he lives and enjoys group and other pro-social activities. He is engagement in meaningful volunteering. No contacts in the community have raised concerns regarding Mr. Berard’s stability and mental health.

17Dr. Sandhu touched on a clinical difference between what Mr. Berard was showing when cared for by Dr. de Laplante and what he is showing now. Dr. Sandhu explained that Dr. de Laplante had been primarily concerned with the negative symptoms of Mr. Berard’s major mental illness. Dr. Sandhu said that over the past year, Mr. Berard has shown the full range of appropriate emotions, which suggests a good level of brain rehabilitation now that primary symptoms of psychosis have been addressed for a prolonged period. Dr. Sandhu said that this helps Mr. Berard identify negative symptoms of his psychosis and lets him address those symptoms appropriately.

18In response to questions from the panel, Dr. Sandhu testified that Mr. Berard had insight into his need for antipsychotic medications as well as the danger for him were he to abruptly stop taking the medication. Mr. Berard is aware that this could impact both his physical health and quickly decompensate his ability to exercise insight. Dr. Sandhu testified that the plan is that he would continue to function as Mr. Berard’s psychiatrist independent of any Board disposition and that he would be able to rely upon the provisions of the Mental Health Act should Mr. Berard become noncompliant with antipsychotic medications. Dr. Sandhu also expressed confidence that Mr. Berard would come to the Hospital voluntarily when asked, even in the context of an absolute discharge.

19Dr. Sandhu testified that Mr. Berard has internalized his insight with regard to the impact of substances on his major mental illness and, by extension, on his relationships with others. He testified that Mr. Berard values those relationships and finds meaning in his pro-social activities. He said that this, together with a lengthy period of abstinence from the use of substances contributes to his position that Mr. Berard no longer meets the Winko threshold of significant threat.

20Dr. Sandhu was asked specifically as to what has changed from what the previous panel expressed as justifying a finding of significant threat, referencing the above-mentioned paragraph 31 of last year’s Reasons. Dr. Sandhu testified that:

1. Mr. Berard now showed a level of insight that was globally strong and internally motivated.
2. Mr. Berard has managed stress well, including those associated with transition to the community and those experienced following the assault on his mother. Dr. Sandhu said that Mr. Berard dealt with these very well. He was open with what had happened and how he helped support his mother to find her a safer living situation. He did not demonstrate any decompensation through any of this. He maintained an ability to both manage his mental health and emotional health needs in a balance as he supported her. Dr. Sandhu said that this was largely independent.
3. Dr. Sandhu said that Mr. Berard had maintained personal supports to the point where they have become appropriately reciprocal. He said that this added to the protective nature of those relationships against the possibility of relapse into substance use.
4. Dr. Sandhu said that Mr. Berard has responded well to supervision and has engaged proactively with mental health supports.

Submissions

21At the end of the hearing, the parties submitted jointly that Mr. Berard no longer represented a significant threat to the safety of the public. The Hospital confirmed that it would follow Mr. Berard for a year following the granting of any absolute discharge and confirmed that Dr. Sandhu would be able to follow him after that. The representative of the Attorney General submitted that, while Mr. Berard does pose some dynamic risk factors that could be a challenge, he has done well abstaining from substances and deserves praise and encouragement. He commented that risk factors seem to have been addressed holistically and submitted that the evidence of significant threat did not attain to the standard set in Winko.

22Counsel for Mr. Berard joined in that submission, highlighting Mr. Berard’s efforts, improvement, and reliance on the treatment team. She pointed to evidence of his global insight and reliability in support of her submission that her client does not represent a significant threat to the safety of the public.

Analysis and Conclusion

23As stated, the Board agrees with the joint submission.

24The threshold conclusion that an individual represents a significant threat to the safety of the public has been described as an “onerous one.” It is insufficient to ground this threat solely in the fact that an individual suffers from a major mental illness. It is insufficient to ground it in an individual’s history of criminality or of risk associated with major mental illness. Historic, clinical and risk management factors must be connected by logic and experience in a substantive manner to a serious risk of physical or psychological harm to the public in the absence of a Board disposition.

25In Mr. Berard’s situation, the evidence fails to make that connection. Mr. Berard has made consistent progress for a number of years increasing and internalizing his insight, abstaining from substances, and developing pro-social relationships that are meaningful to himself and to others. He has demonstrated an ability to cope with significant stresses without relapsing into substance use or decompensating while on medication that he takes assiduously. He has not displayed aggressivity, irritability or any of the primary symptoms of his major mental illness. He has maintained a strong therapeutic alliance and housing that will not be changed by the granting of an absolute discharge. As Dr. Sandhu pointed out, this year has brought about several material changes with regard to Mr. Berard, his insight, his supports, and his reintegration into the public that paints a different picture today than what was seen at the time of the previous hearing.

26The Board congratulates Mr. Berard, his mother, and the treatment team, as well as all who have been supporting him in the community for the progress made and concludes that he no longer represents a significant threat to the safety of the public. He has been granted, accordingly, an absolute discharge.

27The Board thanks all who have participated in this hearing and wishes Mr. Berard the very best in his future endeavours.