



COURT OF APPEAL FOR ONTARIO

CITATION: Ducharme (Re), 2020 ONCA 712

DATE: 20201109

DOCKET: C68051

Gillese, Lauwers and Benotto
    JJ.A.

IN THE MATTER OF:  Christopher Ducharme

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Maya Kotob, for the
    appellant

Mark Luimes, for the respondent
    Attorney General of Ontario

James P. Thomson and Julia L. Lefebvre,
    for the respondent Person in Charge of Waypoint Centre for Mental Health Care

Heard: November 5, 2020, by video
    conference

On appeal from
    the disposition of the Ontario Review Board dated January 29, 2020, with
    reasons dated February 10, 2020.

REASONS FOR DECISION

[1]

The appellant is currently being detained at the Waypoint Centre for
    Mental Health Care. He appeals the disposition of the Ontario Review Board
    dated January 29, 2020 requiring his continued detention because he continues
    to pose a risk to public safety. He appeals on the basis that the Board erred
    in rejecting an absolute discharge or, in the alternative, a conditional
    discharge.

[2]

The appellant has a history of violent behaviour. He has been found NCR
    twice. The first index offences were committed in March 2015 when he had been
    charged with failure to comply with a promise to appear, fraudulently obtaining
    food, possession of property obtained by crime, dangerous driving, failing to
    stop at the scene of an accident and uttering death threats. The second index offence
    was committed in December 2016: assault with a weapon. Both sets of index
    offences involved violence: one included threatening a taxi driver with a
    knife.

[3]

While in detention there have been many occasions where staff have been
    threatened, kicked, scratched and subjected to sexually inappropriate conduct.
    He has assaulted co-patients and held a knife to a staff members throat
    intending to take her hostage. The appellant admits the behaviour but submits
    that his aggression is caused by his frustration with the rules and regulations
    he is required to abide by.

[4]

Dr. Hudson testified that, if the appellant were to be released from the
    hospital, he would likely return to drug use and the likelihood of aggressive
    behaviour is almost certain. Dr. Choptiany testified that the appellant has
    limited insight into the risk posed by lack of treatment and a history of not
    taking his medication.

[5]

The appellants violent episodes have, at times, required that he be put
    in restraints. He attended the hearing before the Board in restraints. Dr.
    Hudson testified that this was necessary for the safety of the appellant and
    for the others in the room. He explained that the appellant suffers from
    recurrent psychotic disorder and recurrent explosive anger where others are harmed
    seriously. The restraints at the hearing were necessary because of his
    agitation and threatening behaviour in the days leading up to the hearing and
    the morning of the hearing. Dr. Hudson testified that there is no way to
    consistently predict the outbursts because the appellant is regularly calm
    immediately before an eruption.

[6]

Both Dr. Hudson and Dr. Choptiany testified that if released, the
    likelihood of aggressive behaviour is almost a certainty and the risk of
    violence is high. On this basis, we conclude that the Boards decision
    rejecting an absolute discharge was reasonable.

[7]

The appellant submits, in the alternative, that he should have been
    granted a conditional discharge. He submits that the Board erred in concluding
    that there was no air of reality to the disposition of a conditional
    discharge.

[8]

The evidence establishes that the appellant is not willing to follow
    conditions. He made it clear that he would not follow the terms of a
    conditional discharge. He suffers delusions involving conspiracies against him.
    He has no plan for re-integration into society and continues to pose a risk to
    the public. He has expressed a continued resolve to escape.

[9]

It was open to the Board to accept this evidence and reasonably conclude
    that a conditional discharge was not appropriate. In the circumstances, a
    detention order was the least restrictive disposition.

[10]

The
    appeal is dismissed.

E.E.
    Gillese J.A.

P. Lauwers J.A.

M.L.
    Benotto J.A.


