



COURT OF APPEAL FOR ONTARIO

CITATION: Durant (Re), 2022 ONCA 86

DATE: 202202
01

DOCKET: C69605

Strathy C.J.O.,
    Harvison Young and Zarnett JJ.A.

IN THE MATTER OF: Bernard Durant

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

Jeff Marshman, for the appellant

Jacob Millns, for the Attorney General of Ontario

Gavin S. MacKenzie, for Ontario Shores Centre for Mental
    Health Sciences

Heard: January 19, 2022 by video conference

On appeal against the disposition of the Ontario Review
    Board, dated June 23, 2021.

REASONS FOR DECISION

Overview

[1]

This is an appeal from the disposition of the
    Ontario Review Board [the Board] dated June 2, 2021, ordering the appellant
    Bernard Durants continued detention in forensic custody at the Ontario Shores
    Centre for Mental Health Services [the Hospital]. The only disputed issue
    between the parties before the Board was whether Mr. Durants detention order
    should include the possibility that community living privileges could be
    extended to him in the course of the 2021-2022 reporting year at the discretion
    of the Hospital.

[2]

The appellant argues that the Boards refusal to
    include such a provision was unreasonable and a reversible error because it
    resulted in a disposition that was neither the least onerous nor the least
    restrictive one available. The respondent, on the other hand, submits that given
    the record before the Board and the recommendations of the treatment team, the
    disposition was reasonable and is owed significant deference. For the reasons
    that follow, we are of the view that the Boards decision was reasonable, and
    the appeal should be dismissed.

[3]

Bernard Durant was 31 years old at the time of
    the subject hearing. He has been under the jurisdiction of the Board since
    being found not criminally responsible on account of mental disorder (NCR) on
    May 27, 2013, of a number of charges. These charges all arose as a result of a
    series of incidents over about 6 hours, including the robbery of a convenience
    store while threatening to kill the attendant, stealing a car after threatening
    the driver, driving erratically and colliding with a parked car, and evading
    the police and ramming a number of police vehicles when he was boxed in. He was
    finally apprehended after being shot in the leg.

[4]

The appellant has been diagnosed with schizophrenia and a polysubstance
    abuse disorder, including cocaine, marijuana and alcohol. In early 2020, he was
    also diagnosed with borderline personality disorder. Although he has been under
    the jurisdiction of the board since 2013 when he was found NCR in relation to the
    index offences, he has not been continuously subject to a detention order.

[5]

After he began taking medication to manage his schizophrenia, his
    condition rapidly improved. He began living in the community in May 2015, first
    in a group home, and later in an independent Canadian Mental Health Association
    (CMHA) apartment. He was conditionally discharged in 2016, but after a period
    of decompensation the Board ordered his detention in November 2018. He was
    charged with assault and assault with a weapon after he had engaged in an altercation
    with a friend, hitting him over the head with a television. He has remained in detention
    at the Hospital since. It is clear from both the Hospital report and the Board
    decision that the appellants treatment team has, and continues to, work with him
    toward the goal of community reintegration.

[6]

The last reporting year was not a good one for Mr. Durant. In October
    2020, he eloped from a sleep clinic while alone in his room. He called the police
    and was returned to the institution a number of hours later, having consumed
    both cocaine and alcohol in the meantime. In April 2021, he eloped a second
    time, this time barging through the unit door, attempting to steal a vehicle,
    stealing a bicycle and assaulting a security guard who was trying to stop him after
    he rode it to the nearby GO station. Mr Durant continued to hit the guard,
    having pinned him against a car with the bicycle, until he was tasered by
    police.

[7]

The appellant acknowledges that he presents a significant risk to the safety
    of the public and needs to remain detained at this point at the Hospital. The
    sole dispute is whether the Board erred by failing to include a provision in
    the detention order permitting the Hospital to grant the appellant community
    living privileges over the current reporting period if it becomes feasible.

[8]

On his behalf, Mr. Marshman argues that such a disposition would have
    had the benefit of rendering it possible during the 2021-2022 reporting year
    that in the event of dramatic improvement, the appellant could be granted some
    community living privileges. This would be entirely within the discretion of
    the Hospital. He also argues that this would have been beneficial because a
    community living provision would have provided the appellant with some hope as
    well as an incentive to work toward this goal. This would alleviate the
    appellants sense of frustration, which has, he submits, contributed to his elopement
    attempts. He submits that because of the failure to include the possibility of
    community living, the Board failed in its duty to make the least onerous and
    least restrictive disposition possible.

[9]

We disagree. The Board carefully reviewed the appellants personal,
    psychiatric and criminal history, considering the incidents occurring within that
    context. It began by accepting the undisputed position of all parties that the
    appellant remained a significant risk to the safety of the public, going on the
    state that the risk flows from his diagnosis of a major mental illness (schizophrenia),
    substance use disorder, and his personality disorder. When he decompensates, he
    is prone to environmental aggression as the incidents occurring in the previous
    year illustrated.

[10]

The
    Board relied on the uncontroverted and expert medical opinion of Dr. Chapman, whose
    opinion was that the appellant requires an inpatient admission at this time and
    that a conditional discharge would be premature. The Board accepted the Hospitals
    view that his ongoing elopement risk required his continuing detention within the
    forensic program.

[11]

In
    addition, the Board credited the appellant with the positive steps he has been
    taking recently, noting his willingness to participate in and contribute to
    various therapy programs. It also commended him for his insight into his illness
    and his recognition of the fact that his illness requires that he take his
    medication in perpetuity.

[12]

In
    considering the appellants request for a community living provision, and in view
    of the record before it, the Board found no air of reality to the possibility that
    the appellant could be an appropriate candidate for community living within the
    current reporting year. That was because of the ongoing elopement risk and
    associated risks of substance abuse and decompensation. It noted that if his
    clinical presentation were to improve significantly, an early hearing could,
    and should, be convened. His next annual hearing has been scheduled to take place
    in June 2022.

[13]

Moreover,
    there was no evidence to support the appellants argument that a community
    living provision would help alleviate his ongoing frustration and provide an incentive
    for him in the course of the current reporting year. Rather, the only evidence on
    the point was specifically provided by Dr. Chapman at the hearing in which he
    disagreed with the appellants submission on this point:

[A] committee recommendation,
    (indiscernible) thats not going to happen, will only increase his frustration,
    and therefore also increase the tendency to take advantage of a situation where
    he can elope.

[14]

In
    short, the Boards refusal to include a community living privilege provision in
    its disposition was amply grounded in the record before it, as was its conclusion
    that its disposition was the least onerous and least restrictive appropriate at
    this time. The decision was reasonable, and the appeal is therefore dismissed.

G.R. Strathy C.J.O.

A. Harvison Young J.A.

B. Zarnett J.A.


