the difficult decisions in the growing numbers of ncr cases

the sliding door of an isolation cell at a high-security mental hospital was propped open a few inches, just wide enough for the man inside to take a zoom call on a computer, placed out of reach on a desk pushed in front of his cell.fearful staff won’t let him out unless he’s strapped down. he is prone to explosive violence and has a history of escapes.on his video call, he told an ontario superior court judge he can prove he’s not mentally ill — just give him access to a recording studio to record a demo track of his music and dancing. if his song isn’t a huge hit, he will acknowledge he has been living with delusions and agree to take anti-psychotic medication.christopher ducharme, 29, believes he is a talent the likes of which the world has never seen, a national treasure worth hundreds of millions of dollars.“better than michael jackson, better than elvis,” he declared.ducharme is being held at waypoint centre for mental health care in penetanguishene, ontario’s only high-security mental health facility, after twice being found not criminally responsible (ncr) for his crimes because of a mental disorder. it’s what used to be called not guilty by reason of insanity.his dramatic case presents a conundrum.ducharme denies he is mentally ill and refuses medication, which is a decision the province says he isn’t capable of making. he is asking the court to prevent forced anti-psychotic injections, but his hearing is months away.his psychiatrist at waypoint wants ducharme’s injections to begin now — once ducharme feels better he may no longer even want to appeal, court heard — and asked a judge to allow forced treatment while waiting for ducharme’s appeal to prevent that from happening.if a person before the criminal court is considered innocent until proven guilty, should someone insisting they’re not mentally ill be assumed sane until proven otherwise? or is forcing psychiatric drugs designed to improve the patient-inmate’s health like refusing bail, which means locking someone up before they’ve even had a trial proving guilt?ducharme’s case offers rare insight into the difficult decisions, terrifying experiences and tragic situations involving the growing number of ncr cases in canada, as well as the systems in place to respond to them.the issue usually comes to public attention through shocking violent acts, such as last month’s verdict denying alek minassian’s ncr claim for killing 10 people in the toronto van attack, or vince li, who beheaded and cannibalized a fellow passenger on a greyhound bus in manitoba in 2008 and was released after seven years of treatment.there has been a steady increase in the number of people found ncr in canada in the past 20 years, and most don’t make headlines. murder and attempted murder accounted for less than seven per cent of crimes leading to ncr verdicts and offences that caused a death were rare, at 3.2 per cent.as an indictment of canada’s mental health system, researchers found it is significantly easier for someone to get mental health treatment after a criminal charge than from outside the criminal justice system.

a 2015 study, one of the few detailed analyses of ncr cases in canada, found 1.7 criminal cases in every thousand ended with an ncr verdict in ontario, 9.27 in a thousand in quebec and 0.8 in a thousand in british columbia.one of those cases was christopher ducharme.born in toronto, ducharme lived on his own from the age of 14, struggling through repeated run-ins with police for shoplifting, trespassing, cannabis, lsd, alcohol and disturbances. after one arrest, he said he was homeless but involved in the music industry recording his compositions.in montreal, in 2014, ducharme left the keg restaurant with a stolen steak knife and a stolen meal in his belly. he ran to a taxi, held the knife to the driver’s throat and ordered him out of his cab. ducharme jumped behind the wheel and drove only a few metres before getting mired in traffic. reversing, he crashed into the car behind him. turning, he smashed into a wall next to le saint-sulpice hotel.ducharme scuffled with the cabbie and the hotel’s receptionist over control of the knife and the car keys. after a police officer arrested him, ducharme said he should have cut his throat.he was deemed ncr for several charges from those events and entered mental health treatment, during which he escaped back to toronto.he was returned to quebec by police and, while being admitted to montreal general hospital, he punched a hospital attendant in the head, leading to more charges and a second ncr finding, after which he was transferred to a psychiatric facility in whitby, ont., from which he promptly escaped.it took months for police to return him to hospital, after he was charged in toronto with robbery, assaulting two police officers and attempting to break out of the cells at old city hall courthouse.ducharme, at 6-foot-2 and 200 pounds with martial arts training, can be hard to handle.when he was back in hospital, he grabbed a nurse and held a shiv, an improvised knife, to her throat. several staff members were injured wrestling him to the ground.ducharme was moved to the high-security waypoint facility, 160 kilometres northwest of toronto. less than two weeks after arriving, he managed to climb out of the hospital onto the roof and jump to the ground. he made it to the perimeter fence before being caught.his stay at waypoint is enforced by the ontario review board, which acts like the parole board, but handling people found ncr rather than those found guilty.an ncr verdict does not mean an accused is free to go. it is not the same as an acquittal. anyone found ncr has their case diverted to a provincial or territorial review board. the system recognizes many of those found ncr need treatment, and the public also needs protecting. review boards assess each case once a year.in a landmark ruling in 1999, the supreme court said that unless an ncr accused poses a significant threat to the safety of the public, they must be discharged. even so, slightly more than half of all ncr cases lead to some form of detention, according to data from canada’s department of justice.ducharme’s current legal conundrum began on jan. 29, 2020, at his ontario review board hearing. the hearing started poorly. he arrived in restraints and wanted them removed.his treating psychiatrist at waypoint, dr. craig hudson, advised against it, and said they were needed to protect everyone in the room. the restraints remained.while the hospital and the attorney general of ontario said ducharme posed a significant threat and needed to remain in secure care, his lawyer argued he was no longer dangerous and should be released.the board deemed him a significant public risk, saying his aggressive behaviour was “almost a certainty.” the board also questioned his plan for reintegration.“he has no plan for release other than to make immense amounts of money with his music although there is no evidence that he has ever done so in the past,” the board said.the review board ordered his detention at waypoint, where hudson diagnosed ducharme with unspecified schizophrenia spectrum and other psychotic disorders and wanted to administer anti-psychotic drugs, but ducharme objected.last summer, the province’s consent and capacity board ruled ducharme lacked the ability to make his own decisions about his treatment. that’s when ducharme turned to the court, appealing the capacity board’s decision.the trouble is, the court can’t schedule his appeal until late april at the earliest, and more likely in late may or june, and ducharme has already gone many months without medication. once given an anti-psychotic injection, he will likely feel better within two or three weeks, hudson said.the case fell to judge fred myers, who recognized the gravity of the question and the nature of the conundrum.“should i authorize dr. hudson to treat mr. ducharme now or wait for the outcome of the appeal?” myers asked when weighing the decision before him in february. “i recognize that the order i am asked to make will infringe upon mr. ducharme’s physical, bodily integrity as well as his personal autonomy.”ducharme told court he couldn’t find a suitable lawyer he could trust so myers appointed a third-party lawyer to help the court and consider ducharme’s interests.over the video link from his cell, ducharme spoke earnestly, articulately and provocatively.he claimed staff at waypoint are criminals who are torturing him. he claimed many patients have been killed inside, and the facility was run by the mafia to launder money and steal millions in government funding. he has written letters to every government body he can think of, but no one pays attention to someone in a psych hospital.“for what it’s worth,” myers told ducharme, his allegations would be put into the record of his court case. they will be made public in that way, myers said. and now they are.(in response to questions from national post about ducharme’s claims, waypoint said the centre “is committed to providing quality and safe patient care and has a no-tolerance policy for misconduct involving patients. allegations and patient complaints are promptly investigated.”)ducharme had previously made the offer about recording a sure-fire hit song to hospital staff to prove he isn’t delusional. when the doctor didn’t get back to him on it, he had a “nervous breakdown,” he said.he makes specific threats to kill and maim staff and their families, he admitted. he blames it on the abuse he is suffering. anyone being tortured would eventually fight back, he said.ducharme said several staff at waypoint have confided in him that he is not really mentally ill, and he called two of them as witnesses at the hearing. neither supported his version in their testimony.he burst into tears at one point; spontaneously started singing at another.ducharme’s state has declined over the months, hudson told court. his rapid swings into threats of violence led to his strict confinement. his mental health will improve with anti-psychotic meds, as it did in the past, hudson said.“the most striking piece of the hearing to me, was how very unhappy mr. ducharme is,” myers wrote after the hearing. “he is confined to a small cell. when he comes out, which is rarely, he has to be restrained. he is angry. he feels threatened physically and emotionally. he calls for help from everyone he can speak to or write to. he feels that he is being tortured and kept from experiencing his music.“it seems apparent that the benefits to mr. ducharme (of being treated immediately) outweigh the risks to him.”myers also turned to case law for guidance, and on a matter like this, that means the case of “professor starson.”scott starson’s case went to the supreme court of canada in 2003 to deal with the issue of whether someone is incapable of weighing the relative risks and benefits of medication meant to help them because their illness blinds them to the existence of the illness.

exceptionally intelligent, starson, in years past, did remarkable work in physics, but also had spectacular delusions, including being immortal, a world-class skier and arm-wrestler, in communication with extra-terrestrials and engaged to joan rivers. he was in and out of mental hospitals for years. he insists on being called professor starson, although he is not a professor.starson refused his medication because he felt it dulled his creativity. like ducharme, doctors treating starson went to the ontario consent and capacity board to confirm a decision to force treatment. like ducharme, he appealed the decision in court.in starson’s case, court found the capacity board’s decision unreasonable.the supreme court said a person’s best interests did not have much relevance on the issue of whether they are capable of consenting to treatment.ducharme’s case is different from starson’s, myers said. starson recognized his brain wasn’t normal but wanted to keep it that way; ducharme flat out denies he is mentally ill. that leaves little chance his eventual appeal will be successful.“i cannot in good conscience leave mr. ducharme suffering one day longer than necessary,” myers said, granting the doctor’s request to inject ducharme with anti-psychotic medication while ducharme is waiting for the court to hear his appeal to not allow them to do it.to be safe, however, myers gave five days for ducharme to appeal before his order took effect. ducharme took that opportunity.on march 2, ducharme’s appeal was heard on an urgent basis by the court of appeal for ontario.ducharme told judge alison harvison young the same thing he tells others: there is no need for needles, just put him in a recording studio. once he becomes a music sensation, ducharme said, he “would have a platform to expose this scam along with the mistreatment of patients.”at the court of appeal, ducharme narrowed his complaint. it was mainly the medication he objected to.life wasn’t so bad inside — he “had a floor to dance on, has people who do his laundry,” he said. he would rather spend the rest of his life in that cell than be injected with drugs that make him “dumb” — and prevent him from dancing.“our law takes the right to bodily integrity very seriously,” said harvison young. “but the law recognizes that in certain cases, this right must give way to permit some intrusion upon that bodily integrity in order to allow that person a better quality of life when they are unable to comprehend the need for or benefits of treatment because of their mental illness.”she ruled that ducharme would not suffer irreparable harm by allowing the injection while waiting for his day in court.“mr. ducharme is an intelligent and articulate man in a tragic situation,” harvison young said.“he clearly has potential that is currently untapped, although i cannot know whether that potential extends to the realm of music and dance. however, he has been a prisoner not only because of the small cell he has lived in for at least two years, but also because of the psychosis from which he suffers.”waypoint declined to say whether ducharme has now received his anti-psychotic injection.“we cannot comment on any patient’s specific situation based on confidentiality and privacy laws, or matters that are before the court,” said laurene hilderley, waypoint’s director of communications.while it is hard to say precisely how unusual ducharme’s case is within the forensic mental health system, it certainly offers a startling view of what can happen after an ncr verdict is made.the national trajectory project studied ncr cases in the three most populous provinces in 2015 and found about 84 per cent of accused were men, and on average were 36 years old. half of the accused had a high school diploma, more than three-quarters were single and 10 per cent were homeless; two-thirds were canadian born, nearly three per cent had aboriginal status.before being declared ncr, 72 per cent of accused had at least one previous psychiatric hospitalization and half had a previous criminal conviction or ncr finding.the most common medical diagnosis among the ncr cases was a psychotic spectrum disorder, such as schizophrenia. that is also ducharme’s diagnosis. • email: ahumphreys@postmedia.com | twitter: ad_humphreys