Re: Andrew Sky
ORB File No: 8094
Hearing held on: Monday, September 15, 2025
Place of hearing: Thunder Bay Regional Hospital
Pursuant to: 672.48(1) and 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. C. Fromstein
Members: Dr. L. Ramshaw Dr. C. Rose Mr. J. Goldenberg Mr. A. Bouvier
Parties Appearing:
Accused: Andrew Sky Counsel: Mr. D. Shannon
The Person in charge of Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Mr. T. Jukes
REASONS FOR DISPOSITION
(Dated October 3, 2025)
Introduction
On May 6, 2022, Andrew Sky was found unfit to stand trial on charges of sexual assault, sexual interference, committing an indecent act (x2), arson, assault with a weapon, assault causing bodily harm (x2), utter threats to cause death or bodily harm (x2), and assault with intent to resist arrest, all contrary to the Criminal Code of Canada. Mr. Sky is currently subject to a Disposition of the Ontario Review Board (the “Board”, “ORB”) dated September 25, 2024, detaining him at the Secure Forensic Unit at the Thunder Bay Regional Health Sciences Centre (the “hospital”) with the outer limit privileges ‘to enter the community of Thunder Bay accompanied by staff.
On September 15, 2025, a panel of the Board convened in person at the hospital to conduct Mr. Sky’s annual hearing. The purpose of the hearing was to determine the issue of Mr. Sky’s fitness to stand trial and to make the appropriate order to follow pursuant to section 672.48 and 672.81(1).
Mr. Sky was present at the hearing and represented by counsel, Mr. Shannon. Ms. Davidson represented the hospital and Mr. Jukes was counsel for the Attorney General.
Position of the Parties
At the outset of the hearing, the parties were canvassed as to their initial positions.
Ms. Davidson indicated the hospital’s position that Mr. Sky is currently fit to stand trial and should be returned to court for the court to make a finding regarding fitness. The hospital is requesting a keep fit order pursuant to s. 672.49(1) of the Criminal Code.
Mr. Jukes, counsel for the Attorney General, agreed with the position of the hospital.
Counsel Mr. Shannon, on behalf of Mr. Sky, also agreed with the hospital position. In the result, the Board was presented with a joint recommendation.
For the reasons which follow, the Board unanimously finds that Mr. Sky is fit to stand trial. With that finding, the Board makes the order pursuant to section 672.48(2) ordering that the accused be sent back to court and the court shall try the issue and render the verdict (on fitness). Mr. Sky will be continued on his current disposition, without change pending the decision of the court.
Outstanding Charges:
- The details of the seven sets of outstanding charges are taken from last year’s Board reasons of September 25, 2024 as follows:
a) On October 17, 2020, Mr. Sky was admitted to TBRHSC pursuant to a Form 1. He was in the emergency department awaiting a mental health assessment when he became verbally aggressive and allegedly threatened to kill a nurse and a security guard.
b) On February 4, 2021, Mr. Sky attended a laneway behind 343 Harold St. N. He allegedly lit a fire and threw it behind a small shed. He then allegedly lit a pile of papers at the front entrance of an apartment building. No damage resulted.
c) On March 30, 2021, Mr. Sky allegedly threw a hot cup of coffee at a worker at a community agency when she refused him entry.
d) On April 1, 2021, the victim gave Mr. Sky his debit card to buy pop and a lighter. The victim alleges that his account was depleted an additional $100. When he confronted Mr. Sky, Mr. Sky allegedly punched him in the face three times and then picked him up by the legs, slamming his upper body into the ground. The victim sustained a severe shoulder injury requiring surgery, two broken ribs and several cuts and bruises to his face.
e) On April 2, 2021, Mr. Sky allegedly punched a police officer in the head in the course of resisting a lawful arrest. The officer sustained a minor bump.
f) On May 8, 2021, the 85-year-old victim was walking in the park with his wife when Mr. Sky aggressively ran up to him and shoved him forcefully with two hands, causing the victim to fall backwards onto the pavement. The victim sustained a laceration to his head, pain in his clavicle and a shattered left hip that required surgery.
g) On June 29, 2021, the victim was with her mother in a group attending for ice cream. Mr. Sky allegedly grabbed her by her buttocks and put his fingers between her cheeks. He then pulled out his penis and began masturbating.
Background and Course Since Last Hearing
Mr Sky’s personal background and psychiatric history are set out in detail in the hospital report dated September 4, 2025, which was made an exhibit at the hearing. The full details of this information need not be repeated in these reasons, but the following information is highlighted for context.
Mr. Sky is presently 38 years of age. His current diagnosis is chronic schizoaffective disorder and substance use disorder. He is treatment capable for the purpose of psychiatric decisions but incapable for property matters, for which the Public Guardian and Trustee is his substitute decision-maker.
Mr. Sky has been under the jurisdiction of the Board since the unfit finding in May 2022. All of his criminal charges remain outstanding and the allegations are untested.
Mr. Sky suffers from a chronic disorder which has been, for a lengthy period of time, treatment refractory. At the time of last year’s hearing, he had been started on the medication clozapine with good results. He was less anxious and agitated. The treatment team concluded at that time that he was fit to stand trial and could return to court to deal with the charges.
As noted in last year’s hearing reasons by the Board, Mr. Sky has an extensive history of mental illness with the onset of his disorder taking place in his late adolescence. He has had over 30 psychiatric admissions to hospital since 2010 and had never experienced meaningful remission of his symptoms. He showed poor medication compliance. A common feature of Mr. Sky’s admissions was a comingling of substance use including cannabis, cocaine, stimulants, and alcohol with medication noncompliance. Mr. Sky had refused his then team’s recommendations for treatment with clozapine for a period of time up until several months before his hearing of 2024. He then agreed to a trial of the medication. Dr. Sheppard noted last year that there had been limited improvement in his mental status and he continued to suffer from his severe illness and remained symptomatic. The introduction of clozapine led to a gradual improvement in his mental status.
In the past, Mr. Sky had been treated with clozapine but had developed neutropenia, a known side effect of clozapine medication, and for this reason his continuation on clozapine necessitated close management to avoid adverse effects. In the past, Mr. Sky had also stopped taking clozapine because he believed it had made him feel suicidal, though that has not occurred in the recent introduction of the medication.
At the time of last year’s hearing, Dr. Sheppard noted that Mr. Sky was far from well, remained anxious, and had occasional bizarre thoughts. He was, however, less belligerent and aggressive.
The ORB. panel at last year’s hearing unanimously found that Mr. Sky remained unfit to stand trial. It was their view that, on the evidence, Mr. Sky could not likely sustain the marginal level of fitness that Dr. Sheppard had recently observed. Dr. Sheppard had stated, “The limited improvement in his mental status has only just recently been observed (2 months) with the introduction of clozapine to his treatment plan.” It is worth noting that in the past, Mr. Sky has on four separate occasions tried clozapine for a time, then stopped.
The Board found that over the course of Dr. Sheppard’s testimony, it became clear to them that Dr. Sheppard did not have a high level of confidence in Mr. Sky being able to deal with the seven sets of criminal charges, some of which are complex. Relying on the decision of Bharwani at the Court of Appeal level, the Board viewed the charges Mr. Sky was facing as complex and serious.
The Board was of the view that the introduction and relative stability of Mr. Sky was of too short a duration to express any degree of confidence in his stability being maintained over a long period of time and that that stability would be necessary for Mr. Sky to meaningfully participate in the several criminal court proceedings. The Board was not overall satisfied that Mr. Sky's level of fitness at that time was likely sustainable based on the relatively short period of stability he had experienced and that a more sustained period of stability was required, stating:
“Applying the test set out in Bharwani, nothing in the evidence before this Board allows us to conclude on a balance of probabilities that Mr. Sky meets the test for fitness. While the Board appreciates the assessment of fitness is a point in time evaluation, there has only been a very short period where Dr. Sheppard expressed some confidence that Mr. Sky was potentially fit to stand trial.”
Evidence at the Hearing
The hospital report of September 4, 2025, sets out the updated circumstances regarding Mr. Sky’s fitness. In the course of the year, there were medication adjustments wherein his dose of clozapine was gradually titrated. His initial side effects were managed. He improved but continued to have significant ongoing symptoms even after the clozapine was increased to a relatively high dose. As his clozapine was increased, his Seroquel medication was decreased and he was started on valproic acid in April 2025, which seemed to help with irritability and mood lability. He, however, continued to have ongoing symptoms of psychosis on this treatment regimen. The team applied for use of medication Amisulpride for clozapine-resistant psychosis through the Health Canada Special Access Program. Though a lengthy process, Mr. Sky was able to begin treatment with Amisulpride at the end of June 2025. The dose of Amisulpride was gradually titrated up, which was tolerated well. The treatment team observed substantial improvements in Mr. Sky’s mental health with the addition of this medication. After the amisulpride was started, the Haldol medication was discontinued.
The hospital report sets out that it is the opinion of the treatment team and the hospital that Mr. Sky is now fit to stand trial. This has been continually assessed by the treatment team. There has been an improvement noted in his ability to engage in these assessments, especially over the past 2-3 months after introduction of Amisulpride. Mr. Sky has been able to tolerate relatively lengthy conversations about his legal situation and has been able to engage in a calm and coherent manner. He has been utilizing an online education program to further develop his understanding of court proceedings. The hospital report sets out at page 25 the Taylor questions that were asked of Mr. Sky and his responses. These support the view that he has at least a rudimentary understanding of the roles and procedures in the courtroom and the potential outcomes of the proceedings. Mr. Sky confirmed that he has defence counsel with whom he would be willing to work. It was reported that he had at least at that time one meeting with his attorney which went well. Mr. Sky has not expressed any delusions about the legal system nor any self-defeating motivations even though he continues to have some degree of fluctuating symptoms of psychosis, particularly disorganization of his thought process. He has been able to have reasonably coherent and reality-based conversations about his legal situation. It is noted that at times when he may become frustrated, he responds well to reassurance and redirection.
Mr. Sky’s improvements clearly are due to the introduction of Amisulpride in combination with his other antipsychotic medication. The hospital recommends a Keep Fit Order pursuant to section 672.49 in the event that the court finds him fit to stand trial so that he can remain in hospital pending any future court proceedings.
Dr. Leinonen testified, echoing the contents of the hospital report. He noted that Mr. Sky’s mood is now more stable. He is less anxious, less stressed, and there are less mood swings. He is able to tolerate longer discussions including about his legal situation. Mr. Sky’s ability to understand the nature and object of the charges and ability to discuss these in calm and appropriate manner have been consistent over the past few months. Though there have been some fluctuating symptoms of psychosis, these are not overwhelming. Mr. Sky understands the reality of his legal situation and in Dr. Leinonen’s opinion is able to be meaningfully present and participate in court proceedings.
Dr. Leinonen took over Mr. Sky’s care in August 2024. He testified that since that time, Mr. Sky has remained fit to stand trial. Thus, for over a year, Mr. Sky has remained fit to stand trial, but Dr. Leinonen noted the improvements in the past months. Dr. Leinonen reassessed Mr. Sky’s fitness last week.
Dr. Leinonen also discussed with Mr. Sky the possibility of an NCR (“not criminally responsible”) defence and the meaning of same and indicated that Mr. Sky can understand these issues. He noted to Mr. Sky in this regard that if he were found NCR, he would remain under the jurisdiction of the ORB and, if so, there could be restrictions on his liberties with likely a similar disposition to that he has now.
Dr. Leinonen clarified that should the court find Ms. Sky fit to stand trial that the hospital is maintaining an available bed for him. The hospital’s plan to ensure Mr. Sky remains fit is to keep him admitted on the current course of treatment. Dr. Leinonen testified that he believes that Mr. Sky could participate even in a prolonged legal process if he stayed on his medication. Mr. Sky might need additional time in court for concepts to be explained to him and absorb the information and make decisions.
Mr. Shannon, Mr. Sky’s counsel at this hearing, is not Mr. Sky’s trial counsel.
Final Submissions:
- All parties maintained their initial positions and were of the view that nothing needed to be added in submissions.
Analysis and Conclusion:
- Section 2 of the Criminal Code defines unfit to stand trial as follows:
“Unfit to stand trial means unable, on account of mental disorder, to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and in particular unable on account of mental disorder to:
a) understand nature and object of the proceedings
b) understand the possible consequences of the proceedings, or
c) communicate with counsel.”
The test for fitness was addressed by the Court of Appeal in R. v. Bharwani, 2023 ONCA 203, and more recently by Supreme Court of Canada in Bharwani, 2025 SCC 26 .
- The summary set out by the Court of Appeal at paragraph 167 to assess fitness included the following:
(1) There is one fitness test for all accused, whether represented by counsel or not. This test is applied contextually.
(2) The test for fitness is set out in the statutory definition of “unfit to stand trial” in s. 2 of the Criminal Code.
(3) A person is unfit to stand trial if, on account of mental disorder, the person is unable to conduct a defence or to instruct counsel to do so.
(4) The purpose of the s. 2 fitness test is to ensure that the accused can be meaningfully present and meaningfully participate at their trial. These touchstones inform a purposive interpretation and application of the s. 2 fitness test and do not themselves constitute a stand-alone test.
(5) The Taylor test questions are not a sufficient surrogate for assessing fitness but are helpful in providing insights into an accused’s abilities in relation to the s. 2 criteria. Applying the fitness test is more nuanced than the questions recognize.
(6) The accused must have a reality-based understanding of the nature and object and possible consequences of the proceedings.
(7) The accused must have the ability to make decisions. This involves the ability to understand available options, the ability to select from those options, the ability to understand the basic consequences arising from those options, and the ability to intelligibly communicate to either counsel or the court the decision arrived upon.
(8) The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests.
- The Supreme Court of Canada, in their decision of January 25, 2025, noted at paragraph 78:
“While the Criminal Code defines unfit to stand trial with reference to the inability to conduct a defence at any stage of the proceedings, this incapacity must be assessed holistically, recognizing that an accused’s mental state may fluctuate. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. A momentary delusion that prevents an accused from making reality-based decisions does not render the accused unfit so long as the trial judge and other courtroom participants can help the accused get back on track to meet the capacity threshold when decisions in their defence must be made. The primary consideration is always assessing the extent to which the accused’s mental disorder impairs their understanding of reality when making decisions in their defence.”
They continued at paragraph 84:
“Mental health is a fluctuating concept and the accused’s capacity may differ over time. This does not mean that a new fitness inquiry is necessarily required for each fluctuation. The trial judge, the Crown, and amicus may be able individually or collectively to impress the reality of the situation upon an accused who experiences occasional delusions such that they meet the fitness standard for making decisions in their defence.”
Paragraph 85:
“A trial judge who observes an accused is drifting from the reality-based capacity threshold can also exercise their inherent trial management powers to give the accused an opportunity to get back on track.”
On the evidence before us, Mr. Sky has at this time a reality-based understanding of the charges that he is facing. He is able to understand the roles of the parties in a trial. He has shown he is able to calmly and appropriately discuss his legal situation. He has counsel with whom he has met and with whom he indicates he will continue to work with in representing him on the charges before the court. The evidence before us is that Mr. Sky has remained fit for over one year. He has, as a result of the Amisulpride medication begun several months ago, made significant progress. Even with his symptoms of his illness not being fully resolved, his mood is more stable, less anxious, and he is able to tolerate longer discussions with regards to his legal situation. This improvement has been consistent over the past few months. The evidence before us is that he can understand the reality of his legal situation and is able now to meaningfully be present and participate in his legal proceedings.
On the evidence before us, we are of the opinion that Mr. Sky is fit to stand trial. It is the position of the Board that, as a result of our opinion as to his fitness, Mr. Sky must be returned to court for a trial of the issue of fitness pursuant to s. 672.48(2). The Board does not in our view have jurisdiction in these circumstances to make any disposition and the pre-existing disposition made pursuant to s. 672.54. As a result, Mr. Sky’s detention order of 2024 at Thunder Bay Regional Health Sciences Centre with the included conditions remains in place in full.
We note for the assistance of the court that will review this matter the position of the hospital that, if the proceedings continue, Mr. Sky requires a Keep Fit Order to maintain him in hospital on his current treatment, in order for him to remain fit to stand trial. Clearly, his recent progress is founded on his medication regimen. Therefore, we make the order for his return to court pursuant to section 672.48(2). Mr. Sky will be continued on his current Disposition without change.
DATED this 3rd day of October 2025, at the City of Toronto, in the Toronto Region.
C. Fromstein
Alternate Chair
Office of the Registrar
Ontario Review Board