Court of Appeal for Ontario

Date: November 14, 2025

Docket: COA-25-CR-0295

Judges: Trotter, Zarnett and Rahman JJ.A.

In the Matter of: Stephen E. Jones

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Anita Szigeti, for the appellant
• Julia Cappellacci, for the respondent Attorney General of Ontario
• Jonathan Nadler, for the respondent Person in Charge of Royal Ottawa Mental Health Centre

Heard: November 5, 2025

On appeal from: The disposition of the Ontario Review Board, dated February 27, 2025, with reasons dated March 10, 2025.

Reasons for Decision

Background and Facts

[1] On October 5, 1998, the appellant was found not criminally responsible on account of mental disorder ("NCRMD") (Criminal Code, R.S.C. 1985, c. C-64, s. 16) on charges of arson and assault with a weapon. The appellant has remained under the jurisdiction of the Ontario Review Board ("the Board") ever since.

[2] The appellant is 69 years old and suffers from the following mental disorders: schizoaffective disorder, pedophilic disorder, and borderline intellectual functioning.

[3] The appellant was previously treated at Ontario Shores Centre for Mental Health Sciences ("Ontario Shores"). His most recent stay there began in 2019. The appellant had ups and downs at Ontario Shores. Although he is generally medication-compliant, his behaviour has been very difficult to manage. He is impulsive, easily agitated, and can be both verbally and physically abusive to staff and other patients. Towards the end of his time at Ontario Shores, the appellant was permitted daily access to hospital grounds and quarterly supervised community visits. He was also permitted to eat a range of solid and liquid foods.

[4] On November 19, 2024, after years of asking, the appellant was transferred to the Royal Ottawa Mental Health Centre ("the Royal Ottawa"). Unfortunately, the transfer has not been a success – not from the appellant's perspective, nor that of the Royal Ottawa. The appellant's behaviour continues to be very difficult to manage.

Conditions at the Royal Ottawa

[5] Compared to Ontario Shores, the appellant's liberty restrictions are significantly enhanced at the Royal Ottawa. This is due to the organizational structure of that hospital. The appellant has not been allowed off his ward, let alone permitted community access.

[6] There have also been serious issues with respect to the appellant's diet. The appellant is at risk for choking. This is due in part to his impulsivity, which manifests itself when he eats. Consequently, at the Royal Ottawa, he is only fed pureed food. This is a significant point of frustration for the appellant, who is aware that other patients enjoy solid food that he is denied. The appellant is isolated in a room when he consumes his meals, being given one item at a time to minimize his opportunities to throw what he considers to be unpalatable food at others. There were brief stints at Ontario Shores when the appellant was only allowed to eat pureed food; however, by and large, he was allowed to eat solid food and could access food to his liking during community visits. Indeed, this would appear to be a theme of his outings.

The Board Hearing and Decision

[7] After a few months at the Royal Ottawa, the appellant requested that the Board convene an early hearing to consider his request to be returned to Ontario Shores. The appellant's continued detention was not an issue; all parties acknowledged that the appellant remains a significant threat to the safety of the public: Criminal Code, s. 672.54(a).

[8] In terms of the appellant's transfer request, the Attorney General for Ontario consented to the transfer. Representing the Royal Ottawa at the hearing, Dr. Julian Gojer, the appellant's treating psychiatrist, did not oppose the transfer. However, Ontario Shores filed a Rule 13 Response in which it opposed the appellant's return to that hospital. Ontario Shores stressed the appellant's unfavourable treatment track record at their hospital and encouraged the Board not to indulge the appellant's whims merely because of his frustration with his current situation.

[9] The Board refused the appellant's request to be returned to Ontario Shores. In its Reasons for Disposition, the Board noted that, by the time he left Ontario Shores, the appellant's therapeutic relationship with his treatment team had deteriorated. Moreover, the Board expressed concern that the appellant had only been at the Royal Ottawa for a brief period of time. As the Board wrote:

At this early juncture, the panel agrees that it is not in Mr. Jones' long-term best interest and rehabilitation to acquiesce to his transfer request which appears to be driven, to an extent, by his impulsivity and low frustration tolerance. It may be more therapeutic for him to remain for a longer period of time at the Royal Ottawa, engage with his treatment team and learn to better adapt to his new environment.

In our assessment, Mr. Jones' transfer back to Ontario Shores after such a brief period of detention at the Royal Ottawa is not necessary or appropriate, nor is it likely to be least restrictive or least onerous, given his history at that institution. We are aware from the record that Mr. Jones can be a difficult patient to forge a therapeutic alliance with; however, in our assessment, this is a process that takes time. He has only been at the Royal Ottawa for three months.

[10] The Board also agreed with the Ontario Shores' position that a "lateral move to Ontario Shores is not necessary or appropriate, particularly bearing in mind the paramount goal of public safety." The Board also stated that there was no guarantee that the appellant would receive the same privileges if he were to return to Ontario Shores.

The Appeal

[11] The appellant appeals the Board's refusal to transfer him back to Ontario Shores. He contends that the decision of the Board is unreasonable in terms of crafting a disposition that is least onerous and least restrictive, especially in light of the lack of opposition from the Attorney General for Ontario and Dr. Gojer.

[12] The Attorney General for Ontario and Royal Ottawa submit that the decision of the Board is reasonable and entitled to deference, despite their previous submissions to the Board in which they did not oppose the transfer.

Court's Analysis

[13] In our view, the Board's decision was unreasonable: Criminal Code, s. 672.78(1)(a). Although the Board stated the correct legal test, it appeared to focus on whether the transfer would be in the appellant's "best interests" and his "long-term interests" to remain where he is and to work with the treatment team at the Royal Ottawa. Not only did the evidence not support this approach, this was also not the question before the Board.

[14] Dr. Gojer confirmed that the appellant has remained compliant with his medication both at Ontario Shores and the Royal Ottawa. His manageability challenges stem from his compromised level of intellectual functioning. During questioning by a Board Member, Dr. Gojer testified:

He's, he's untreatable, in my opinion. Whether you have him in our hospital, the treatment is going to be purely behavioural and containment. It's not medication.

[15] There was no evidence that the appellant's behaviour would improve at the Royal Ottawa. In fact, Dr. Gojer was resolute in his evidence that it was inevitable that the appellant's behaviour would continue to deteriorate while at the Royal Ottawa, such that he might seek a transfer of the appellant to a more secure hospital setting. This is substantially linked to the frustration caused by the appellant's pureed food regime, something that is "not going to change" at the Royal Ottawa, according to Dr. Gojer.

[16] There was also no evidence that the conditions at the Royal Ottawa and Ontario Shores would be equally restrictive. The Board's observation that the appellant may not receive the same level of off-ward privileges he previously earned at Ontario Shores was purely speculative. In his evidence, Dr. Gojer suggested the opposite. The same goes for food. The appellant had access to non-pureed foods at Ontario Shores in the past, and there was no evidence that, if he were to return to Ontario Shores, the appellant would not have access to those foods again.

[17] Focusing on the "least onerous and least restrictive" standard (see Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498), and notwithstanding Ontario Shores' objection to the transfer, the evidence established that the appellant's liberty would be, or would have the real potential to be, significantly enhanced at Ontario Shores, both in terms of his access to palatable (i.e., non-pureed) food and his physical liberty. As Dr. Gojer testified, the treatment approach for the appellant is limited to containment and behavioural modification. Nonetheless, within this approach, the appellant is entitled to a disposition that is least onerous and least restrictive. That clearly is not available to the appellant at the Royal Ottawa.

Disposition

[18] Accordingly, we set aside the order of the Board and order the appellant's transfer to Ontario Shores at the earliest opportunity, subject to the terms and conditions of the Board's previous order, dated December 4, 2023, with necessary modifications to reflect a transfer to Ontario Shores from the Royal Ottawa.

"Gary Trotter J.A."

"B. Zarnett J.A."

"M. Rahman J.A."