Man had history of escapes; not suitable for medium-security facility
Detaining a Quebec man at a highly-secure mental health facility in Ontario before his transfer to a similar Quebec facility balanced his need for a possible reset while also protecting public safety, the Ontario Court of Appeal has found.
The appellant in Ducharme (Re), 2022 ONCA 713 was twice found not criminally responsible on account of a mental disorder: first, in connection with several offences arising from his attempt to hijack a taxicab while armed with a steak knife in 2015, and second, relating to an assault on a health care attendant in 2016. His current diagnoses were unspecified schizophrenia spectrum, other psychotic disorder, and cannabis use disorder.
He was admitted twice to the Institute Philippe-Pinel de Montreal, a forensic facility in Quebec with a high-security division. Between committing the 2015 and 2016 offences, he had various hospital stays in both Ontario and Quebec. He thrice escaped from the hospital and often showed violent, aggressive, threatening, and sexually inappropriate behaviours.
After moving to Ontario, he committed the 2016 offence and entered Philippe-Pinel for a third time. The Quebec Review Board ordered his continued detention in that facility, and he eventually started stabilizing as he participated in therapeutic programming.
In February 2018, the appellant was transferred to the Ontario Shores Centre for Mental Health Sciences, a medium-security facility under the Ontario Review Board’s jurisdiction. However, he escaped from Ontario Shores and, when he returned, he stopped taking his antipsychotic medications. He was involved in various incidents of assaulting and threatening behaviour against patients and staff.
In October 2018, he was transferred to Waypoint’s High Secure Provincial Forensic Programs Division under s. 29 of Ontario’s Mental Health Act. He tried again to escape, and the Ontario Review Board found that he should stay at Waypoint instead of Ontario Shores.
The appellant was placed in seclusion at Waypoint, where he exhibited significant behavioural instability including violent behaviour toward himself and staff. He continued to refuse antipsychotic medications and, in June 2020, his attending psychiatrist found that the appellant deteriorated to the point that he could not make treatment decisions.
The appellant appealed to the Consent and Capacity Board, the Ontario Superior Court of Justice, and the Ontario Court of Appeal. In February 2021, the psychiatrist obtained an interim order allowing him to treat the appellant with antipsychotic drugs with his substitute decision-maker’s consent. The appellant’s mental status and behaviour improved, though a relapse occurred following a change in medication.
During a hearing before the Ontario Review Board, the psychiatrist did not consider the appellant a suitable candidate for transfer to a medium-security facility, although his prognosis was described as “quite good.” The psychiatrist made the following findings:
- the appellant recently showed improvements due to the antipsychotic drugs but this situation was in its “early days”
- he would likely discontinue antipsychotic medications and would likely revert to a psychotic state and violent behaviours upon regaining competency
- the same decompensation would likely occur if he could obtain and use illicit drugs in a medium-security unit
The Ontario Review Board ordered the appellant’s detainment at Waypoint. The review board recommended, at his request, that he be transferred to Philippe-Pinel, but it rejected his request to be transferred to any medium-security forensic facility in Ontario except Ontario Shores, pending his potential transfer to Quebec. It found that transferring him to a less secure setting would lead to an “unacceptably high” risk.
Review board’s order reasonable: appeal court
The Ontario Court of Appeal dismissed the appeal. The Ontario Review Board reasonably concluded, in the circumstances, that the necessary and appropriate disposition was to detain the appellant at Waypoint, which was the only high-secure forensic facility in Ontario, the appellate court said.
The appellate court noted that the review board gave thorough reasons recognizing the appellant’s difficult history at Waypoint and the challenges that this history posed to his future treatment.
The Court of Appeal ruled that the appellant’s history, which included escapes from secure facilities, showed that he presented a high level of risk while untreated and that he was difficult to manage even in a highly-secure environment.
The review board made unchallenged findings that the appellant remained a significant threat to public safety and that there was presently no air of reality to the possibility of a conditional discharge, the appellate court held.
The review board was entitled to accept the psychiatrist’s opinions that the appellant was not suitable for a transfer to a medium-security unit and that he would likely refuse antipsychotic medications if he regained his capacity for consent, the appellate court said.
