



COURT OF APPEAL FOR ONTARIO

CITATION: Duquette (Re), 2018 ONCA 357

DATE: 20180412

DOCKET: C63784

Feldman and Benotto JJ.A. and Sachs J. (
ad hoc
)

IN THE MATTER OF:  Danielle Duquette

AN APPEAL UNDER PART XX.1 OF THE
CODE

Daniel G. Duquette, acting in person

Suzan E. Fraser, appearing as
amicus curiae

Peter Fraser, for the Ministry of the Attorney General

J. Zamprogna, for the
Southwest Centre
    for Forensic Mental Health Care

Heard: March 29, 2018

On appeal against the disposition of the Ontario Review
    Board, dated May 9, 2017, as amended by the order of the Ontario Review Board,
    dated May 26, 2017.

REASONS FOR DECISION

[1]

In 2010, the appellant was found not criminally
    responsible on account of mental disorder on two charges of uttering a threat
    to cause death or bodily harm. The appellant is diagnosed with delusional
    disorder, persecutory type, and alcohol use disorder in sustained remission. Following
    his annual review hearing on May 1, 2017, the Ontario Review Board found that he
    continues to represent a significant threat to the safety of the public. It
    continued his existing disposition detaining him at Southwest Centre for
    Forensic Mental Health Care, modifying it only to increase the reporting
    requirement should the appellant ultimately return to the community.

[2]

The appellant appeals the Boards disposition
    and seeks an absolute discharge. He and the
amicus
submit that: (i) there was no evidence the appellant posed a
    significant threat to the safety of the public; (ii) the Boards reasons are
    insufficient because they fail to articulate its reasons for finding the
    appellant posed a significant threat to the safety of the public; and (iii) the
    appellant has been off his medication for over a year and has not issued
    threats similar to those underlying the index offences.
[1]

[3]

The index offences arose out of a series of 153
    emails. The emails contained both idle and criminal threats, some of which were
    disturbing and graphic. The emails were turned over to the police and two became
    the subject of the charges.

[4]

For the two years preceding this Board hearing,
    the appellant resided on his own. In January or February 2016, he discontinued
    his treatment sessions with his psychologist, reported that he had stopped
    taking his antipsychotic medication and began demonstrating an increase in
    delusional-based conversations. He was readmitted to hospital on October 20,
    2016. The appellant continued to be hospitalized at the time of the May 1, 2017
    hearing.

[5]

We do not agree that there was no evidence the
    appellant posed a significant threat to the safety of the public. Dr. Prakash,
the
    psychiatrist responsible for the appellants daily clinical management
, testified that the appellant continued to demonstrate symptoms of
    his mental illness. He stated that the appellants symptoms had worsened, and they
    now approached the severity of his symptoms at the time he first entered the
    forensic system. Dr. Prakash explained that the appellants decompensation over
    the last year (which resulted in his re-hospitalization) was likely the result
    of the appellant stopping his medications.

[6]

Dr. Prakash recognized that the appellant had
    not been physically violent. However, he stated that the appellants conduct,
    while not criminal, was threatening. This conduct involved intimidation using threats
    to sue and issue complaints to professional organizations. Dr. Prakash testified
    that the appellants risk to the public had increased from low to moderate in
    2015 and from to moderate to high in 2016. He described the risk the appellant
    posed as being psychological in nature and stated the re-offence scenario would
    be similar to the index offences.

[7]

It was reasonable for the Board to rely on this
    evidence to find that the appellant posed a significant threat to the safety of
    the public. To accept the appellants submission that his current situation did
    not pose a risk of significant psychological harm would be to conclude that his
    threatening conduct at the time of the index offences did not pose a risk of
    such harm (which, given the nature of the emails that were sent, we do not
    accept).

[8]

Similarly, the Boards reasons are not
    insufficient. They demonstrate that the Board relied on the evidence of Dr.
    Prakash and the hospital to conclude that the appellants continued decline
    posed a moderate to high risk of psychological harm to others, which was
    criminal in nature.

[9]

Lastly, we address the appellants submission
    that he has been off his medication for over a year and has not resumed his
    prior conduct. In his evidence, Dr. Prakash acknowledged that the hospital had
    not been contacted regarding any letters sent by the appellant during the year
    he has been untreated, and that he expected the hospital would be contacted if
    the appellant was sending letters of a criminal nature. While it may have been
    preferable for the Board to engage more fully with Dr. Prakash concerning the
    ongoing likelihood of the appellant causing significant psychological harm
    given the passage of time without incident, its acceptance of Dr. Prakashs
    evidence without doing so did not constitute a legal error and was not
    unreasonable: see
Medcof (Re)
, 2018 ONCA 299,
    at para. 55. However, at the next annual review hearing, currently scheduled
    for April 19, 2018, it would be helpful for the evidence and the reasons to
    more clearly address this issue.

[10]

For these reasons, the appeal is dismissed.

K.
    Feldman J.A.

M.L.
    Benotto J.A.

Sachs
    J.





[1]

The parties agree on the standard of review applicable on
    appeal. According to s. 672.78(1) of the
Criminal Code
, this court may
    allow an appeal against a disposition of the Board where it is of the opinion
    that the disposition is unreasonable or cannot be supported by the evidence, is
    based on a wrong decision on a question or law, or there was a miscarriage of
    justice.


