Re: Nicholas Burnett
ORB File No: 8240
Hearing held on: Thursday, May 1, 2025
Place of hearing: Ontario Shores Centre for Mental Health Sciences 700 Gordon Street, Whitby
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. G. Beasley
Members: Dr. B. Sheppard (via Zoom) Dr. W. Loza Ms. C. Murray Mr. A. Bouvier
Parties Appearing:
Accused: Nicholas Burnett Counsel: Ms. L. Shafran
The person in charge of hospital: Counsel: Ms. A. Marshall
Attorney General of Ontario: Counsel: Ms. N. MacDonald
REASONS FOR DISPOSITION
(Dated May 27, 2025)
Introduction
On January 30, 2023, Mr. Nicholas Burnett was found not criminally responsible on account of mental disorder (“NCR”) on charges of assault and assault causing bodily harm, all contrary to the Criminal Code of Canada (the “Criminal Code”).
On May 1, 2025, a panel of the Ontario Review Board (“Board” or “panel”) convened to review Mr. Burnett’s current Disposition pursuant to s. 672.81(1) of the Criminal Code. At the time of the hearing, Mr. Burnett was ordered detained within the Forensic Program at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores” or “the hospital”), with privileges up to and including passes for up to 12 hours to enter the community, within a 150-kilometer radius of Ontario Shores, indirectly supervised.
Mr. Burnett was not present at the hearing. He was represented by counsel, Ms. Leah Shafran, throughout the proceedings. Ms. Shafran advised that Mr. Burnett did not wish to attend the hearing but had given her instructions to proceed in his absence. He also provided full instructions to Ms. Shafran regarding this hearing. Ms. Shafran requested an order permitting Mr. Burnett to be absent pursuant to s. 672.5(10)(a) of the Criminal Code. The Board granted this order, as requested.
A Hospital Report dated March 28, 2025, was entered as Exhibit 1.
The issues to be determined are whether Mr. Burnett continues to represent a significant threat to the safety of the public, and if so, the necessary and appropriate Disposition to manage that risk having regard to the criteria set out in s. 672.54 of the Criminal Code.
For the reasons set out below and based on the evidence and opinions before us, the Board found that Mr. Burnett continues to represent a significant threat to the safety of the public. The Board finds that a Detention Disposition within the Forensic Program of Ontario Shores is the necessary and appropriate Order having regard to the safety of the public, which is the paramount concern, and also having regard to Mr. Burnett’s mental health, reintegration into society, and his other needs.
Current Psychiatric Diagnoses
- Schizophrenia; Antisocial Personality Disorder; and Cannabis Use Disorder (moderate).
Position of the Parties
At the commencement of the hearing, the parties were canvassed for their without prejudice positions. The hospital, represented by Ms. Marshall, supported by counsel for the Attorney General, Ms. MacDonald, took the position that Mr. Burnett continues to represent a significant threat to the public and the necessary and appropriate Disposition is a continuation of the current Detention Order on the same terms as last year.
Counsel for Mr. Burnett conceded significant threat and agreed with the hospital’s recommendations.
Therefore, there was a joint submission on all issues.
Index Offence
- The Hospital Report describes the circumstances surrounding the index offences in detail. Briefly, on December 12, 2019, Mr. Burnett was living in shared accommodation that had been arranged by his mother. His mother was visiting that day with a church pastor who was also a friend of the family. They were at a table in the kitchen, and the landlord of the house was also present washing dishes.
In the course of the conversation with his mother and the pastor, Mr. Burnett attacked his mother without provocation. He grabbed his mother by the neck and swung her into the wall. They both fell to the ground and his mother struck her head and lost consciousness. Both the pastor and the landlord attempted to restrain Mr. Burnett. As the landlord was calling 911 Mr. Burnett struck him on the head and elsewhere on his body. Mr. Burnett fled.
The landlord changed the locks, and a warrant was issued for Mr. Burnett. He returned to the landlord’s house and was arrested on December 14, 2019
Background and History
The Hospital Report contains extensive information regarding Mr. Burnett’s background and history, the entirety of which need not be repeated here in detail. However, the following particulars are noteworthy.
Mr. Burnett is a 39-year-old single male. He has a criminal history starting in 2011. Criminal charges prior to the index offences include assault with intent to resist arrest, assault (x2), and aggravated assault.
In addition to these convictions and dismissed and withdrawn charges, the narratives summarized in the medical records in the Hospital Report disclose numerous incidents of physical aggression including a historical assault on ACT team staff, which resulted in a discontinuation of services. Medical record summaries disclose aggressive incidents when Mr. Burnett decompensated including aggression against his mother (2008), a fight with his brother-in-law (2010), assault on his psychiatrist (2011), threatening to kill his mother (2016), assaulting a police officer in a police station (2017), and assaulting a co-patient (2019).
Mr. Burnett has a history of over fifteen admissions to psychiatric admissions to hospital starting in 2008. The Hospital Report details each admission.
Mr. Burnett is one credit short of his high school diploma. He struggled to maintain employment and manage in the community between admissions to his deteriorating mental health, lack of self-care, and regular conflicts with co-tenants and family.
Mr. Burnett is supported by the Ontario Disability Support Program (“ODSP”). Since 2014 he has been deemed incapable to manage his finances. The Public Guardian and Trustee manages his estate.
Evidence at the Hearing
The Board had available to it the evidence and documents forming the Record, the Hospital Report, and oral evidence of Dr. Claire Harrigan who is Mr. Burnett’s psychiatrist and author of the Hospital Report.
The Hospital Report notes that Mr. Burnett’s brother, Simon Burnett, is currently acting as his substitute decision maker (SDM).
Mr. Burnett has remained on the secure Forensic Assessment and Rehabilitation Unit (FARU) for the entire reporting year. He spends most of his time secluded to himself in his room, with the exception of mealtimes.
Although he is superficially calm and cooperative, Mr. Burnett becomes more irritable and verbally aggressive with staff attempt to explore any symptoms that he may be experiencing in greater depth. His thinking also becomes increasingly disorganized during more probing conversations.
Mr. Burnett has used accompanied hospital grounds and community privileges without incident in this reporting year. He has refused to participate in any individual or group therapeutic programming other than occasionally meeting with the occupational therapist. He participates in select on unit activities such as attending courtyard, playing pool, and attending movie nights.
Mr. Burnett has remained extremely difficult to motivate to participate in any programming.
Mr. Burnett has attended monthly case conferences with the clinical team regularly. He has inquired about what he would need to do to move to a General Unit. However, he has consistently declined therapeutic programming as recommended.
Mr. Burnett has been compliant with his injectable and oral medications. His symptoms have, unfortunately, remained treatment resistant.
Dr. Harrigan testified that Mr. Burnett remains guarded when it comes to discussing symptoms of his mental illness. He continues to have persecutory delusions in relation to the index offence. When Mr. Burnett is asked in-depth questions about his illness, he becomes more irritable and seclusive.
Mr. Burnett’s brother, as SDM, consented to the increase of the Invega Sustenna to once every three weeks instead of once per month.
Dr. Harrigan testified that the focus of the treatment team for Mr. Burnett this year will be ongoing medication optimization. She stated that a reduction in Mr. Burnett’s symptom burden may make him more willing to engage in treatment programs and more transparent about his symptoms.
In the coming year, Mr. Burnett must use indirectly supervised privileges from the Secure Forensic Unit before the treatment team could trial him on the General Forensic Unit.
In response to a question of the Board, Dr. Harrigan said that the diagnosis of antisocial personality disorder may need to be revisited. She has not seen prominent antisocial personality traits. It was likely that the diagnosis was made in the context of Mr. Burnett being quite unwell.
Analysis and Conclusions
Having heard and considered the entirety of the evidence as well as the submissions from the parties, the Board independently finds that Mr. Burnett remains a significant threat to the safety of the public.
Mr. Burnett suffers from schizophrenia. He has limited insight into his mental illness and past incidents of violence.
The Hospital Report is clear that, based on the Risk Assessment, Mr. Burnett’s risk for future violence is determined to fall in the high range if awarded community living. Mr. Burnett continues to suffer negative symptoms of his illness. He also likely suffers positive symptoms of his illness that he is trying to conceal. He is in the early stages of building rapport and increasing engagement with his clinical team. He remains guarded, seclusive, and unwilling to participate in risk-relevant programming. Critical risk factors that have contributed to violent behaviour in the past have not yet been successfully targeted with treatment.
Mr. Burnett has a history of physical assaults against both family and community members that pre-dates his index offences. When he is acutely unwell, he displays disorganization of thought paranoid ideation and has engaged in serious physical aggression.
In light of the Board’s finding of significant threat, it is charged with shaping a Disposition for the coming year.
The Board accepts the uncontroverted evidence of Dr. Harrigan and the evidence contained in the Hospital Report.
Mr. Burnett has remained on a Secure Unit for the past year. There are steps to be taken to gradually and safely move him toward transfer to a General Unit in the next year, including utilizing indirectly supervised passes from the Secure Forensic Unit.
The addition of a community living provision to the Disposition is premature at this time. The Hospital Report points out that there are early signs of increased engagement in programming and rapport building with select staff members. However, there are several areas directly related to risk that remain underdeveloped.
Over the course of the coming year, the hospital intends to make efforts to gradually transition Mr. Burnett from a Secure Forensic Unit to a General Forensic Unit. He will be encouraged to use his privileges. It is hoped that optimization of his medications will further ameliorate his symptoms and allow him to be involved in group and individual therapy that is necessary to move forward in his rehabilitation.
The joint submission of the parties is that there be no change in Mr. Burnett’s Disposition for the coming year. The Board finds that there is ample evidence to support a finding consistent with the joint submission.
Therefore, the Board finds that the necessary and appropriate, least onerous and least restrictive Disposition is a Detention Order within the Forensic Program at Ontario Shores on the same terms as last year and as set out in our formal Disposition.
DATED this 27^th^ day of May 2025, at the City of Toronto, in the Toronto Region.
Ms. Christine Murray Legal Member
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Office of the Registrar Ontario Review Board