Re: Franco Leal-Hernandez, 2025 CanLII 111822

Re: Franco Leal-Hernandez

ORB File No: 8815

Hearing held on: Monday, September 8, 2025

Place of hearing: St. Joseph’s Healthcare Hamilton, West 5th Campus Hamilton, Ontario

Pursuant to: Section 672.47(1) of the Criminal Code

Before: Alternate Chairperson: Ms. L. Maunder Members: Dr. P. Prendergast Dr. G. Nexhipi Mr. C. MacIntyre, KC Mr. A. Mete

Parties Appearing:

Accused: Franco Leal-Hernandez Counsel: Mr. P. Boushy

The Person in charge of Hospital: Counsel: Ms. L. Barney

Attorney General of Ontario: Counsel: Mr. B. Adsett

REASONS FOR DISPOSITION

(Dated: October 29, 2025)

Introduction

1On June 16, 2025, Franco Leal-Hernandez was found not criminally responsible on Criminal Code charges of sexual interference, criminal harassment and sexual assault. The Court did not make a disposition but referred the matter to the Ontario Review Board to do so. On September 8, 2025, the Board convened at St. Joseph’s Healthcare Hamilton to conduct an initial hearing and make a disposition pursuant to s.672.47(1).

2The parties jointly submitted that the evidence before the Board established that Mr. Leal-Hernandez represented a significant threat to the safety of the public and that the necessary and appropriate disposition was a detention order with privileges up to and including community living in approved accommodation. For the reasons that follow the panel accepted the joint submission.

The Index Offences

3The following summary of the index offences comes from the transcript of the NCR proceedings. The facts were read in, based on the police synopses, and Mr. Leal-Hernandez’s counsel indicated they were not contested.

4On July 1, 2023, Mr. Leal-Hernandez followed a sixteen-year-old girl from a school into a coffee shop. Inside he “got in her face” and asked her if she had a boyfriend “numerous times”. The girl was concerned and called a friend. This was the basis for the criminal harassment charge. Mr. Leal-Hernandez then approached a twelve-year-old girl inside the coffee shop and put his hand on her waist before slowly dragging his hand across her mid-section and asking for her phone number. The girl yelled and he stopped touching her. This was the basis of the sexual interference charge.

5Mr. Leal-Hernandez was charged and released the next day on an undertaking.

6On March 17, 2024, Leal-Hernandez was in the emergency room at St. Joseph’s Hospital when he approached a female from behind, placed his hands on her hips, slid his hands underneath and down her pants, and touched her buttocks. This was the basis for the sexual assault charge.

Background / Context

7Mr. Leal-Hernandez’s personal and psychiatric history was summarized in Exhibit 2, a Report dated August 21, 2025, prepared by Dr. Aaron Wu pursuant to a Board’s Order for a 60 day out of custody risk assessment. (Dr. Wu had also prepared the Report for the Court that was the basis for the finding of NCR – Exhibit 1.)

8Mr. Leal-Hernandez is a 26-year-old man. He was born in Cuba but moved to Canada when he was two with his mother. He struggled socially and with attention in school. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Throughout his youth, he travelled to Cuba to visit his father during the summer and also went to Cuba for Grade 10. He left school altogether the next year.

9Mr. Leal-Hernandez first showed signs of developing mental illness when he was 15 years old. He had trouble concentrating and sleeping. He began hallucinating the next year. His behaviour led to conflict at home. Mr. Leal-Hernandez broke items in the home and police were called more than once due to Mr. Leal-Hernandez’s “violent behaviour” towards his mother. He was sometimes asked to leave the home and stayed with his mother’s partner.

10Mr. Leal-Hernandez was not psychiatrically assessed until his first psychiatric admission to hospital in 2020 (at 21 or 22 years old). His mother reported that Mr. Leal-Hernandez had tried to strangle her and she was afraid of him. He was experiencing auditory hallucinations and paranoid and grandiose delusions. He was diagnosed with schizophrenia. His condition improved with antipsychotic medication over the course of his four-and-a-half-month admission.

11In subsequent years, when Mr. Leal-Hernandez was subject to a Community Treatment Order (CTO) he was treated and was relatively stable. When he was not on a CTO, he stopped antipsychotic medication and his mental state deteriorated until he was rehospitalized. He had lengthy admissions to hospital in 2021, 2022 and two in 2023. When unwell he was noted to be aggressive and, driven by delusional thoughts, sexually inappropriate.

12Although not diagnosed with autism spectrum disorder, during an assessment, Mr. Leal-Hernandez scored on the Autism Quotient “consistent with others” with the diagnosis.

13The first index offences occurred shortly after Mr. Leal-Hernandez was discharged after a two-month hospital admission. A few weeks after, Mr. Leal-Hernandez (with his mother) sought a voluntary admission. He was experiencing breakthrough symptoms of psychosis despite being on a long-acting injectable antipsychotic medication. He remained in hospital for four months but eventually improved with some medication adjustments.

14Mr. Leal-Hernandez was again seeking help at the hospital for his deteriorating condition when the last of the index offences took place. His resulting admission lasted six months.

15Mr. Leal-Hernandez was admitted to hospital one more time, for three months in early 2025, because he continued to experience paranoia and delusions. He was started on clozapine, which he tolerated. On clozapine, Mr. Leal-Hernandez was somewhat less paranoid and reported that he felt better but he still believed he was being monitored by intelligence agencies (a lesser version of earlier paranoid delusions) and continued to feel compulsion to approach young females in response to messages he was receiving. His insight into his need for antipsychotic medication was improved.

16By the time of the hearing, the first index offence had occurred 26 months earlier. Mr. Leal-Hernandez spent half of that time in hospital and the other half in the community subject to an undertaking.

17Mr. Leal-Hernandez has no criminal history. He did have a history of using cannabis and alcohol but not such that he was diagnosed with a substance use disorder.

Significant Threat

18The panel accepted Dr. Wu’s unchallenged opinion that Mr. Leal-Hernandez posed a significant threat to the safety of the public. Mr. Leal-Hernandez has a diagnosis of schizophrenia, and his illness has proved to be treatment refractory. He has a lengthy history of poor insight into his need for medication, non-compliance with recommended treatment, and, at times, active resistance to treatment. When unwell in the past, Mr. Leal-Hernandez has been aggressive. He has acted on delusions, including by being sexually aggressive.

19We noted (as did Dr. Wu) that Mr. Leal-Hernandez has seen some improvement in his symptoms and insight since starting treatment with clozapine. Importantly, however, he continued to experience symptoms of his psychosis, some of which were “offence-paralleling”. He continued to have delusions related to intelligence agencies although they were somewhat less paranoid and less distressing to him. He continued to receive messages (“No woman in Hamilton will turn me down”) that made him want to sexually engage with young females in his proximity.

20A psychological risk assessment report included in Dr. Wu’s Report (Exhibit 2), noted that Mr. Leal-Hernandez’s risk for sexual recidivism was “above average”. On average, the sexual recidivism rate for those with his combined Static-99R and STABLE-2007 score was 7% after one year, 16% after three years, and 18% after five years.

21We also noted that Mr. Leal-Hernandez was living in the community for many months, prior to our hearing, on an undertaking, without reoffending (or engaging in other behaviours that would suggest significant threat). It was clear on the evidence, however, that this occurred with various supports – the supervision offered by Mr. Leal-Hernandez’s mother and his mother’s partner, the outpatient program that was following Mr. Leal-Hernandez, and lengthy hospital admissions – and might have gone otherwise.

22Ultimately, we viewed it as likely that without the oversight of the forensic service, Mr. Leal Hernandez would, in time, reoffend. He would either act driven by his residual symptoms (which he has so far avoided) or he would stop treatment as he had done in the past and decompensate such that he was even more likely to act on his delusions. We concluded that there was a real risk of Mr. Leal-Hernandez causing serious physical or psychological harm to others from conduct that was criminal in nature.

Necessary and Appropriate Disposition

23The panel also accepted Dr. Wu’s evidence that a detention order was necessary and appropriate. Dr. Wu opined that Mr. Leal-Hernandez needed inpatient support and rehabilitation to “modify and manage” his risk. He identified three specific interventions that needed to take place in an inpatient setting. First, Dr. Wu wanted to monitor and optimize Mr. Leal-Hernandez’s clozapine medication in an effort to address his remaining symptoms of psychosis to whatever degree possible. Second, Mr. Leal-Hernandez needed rehabilitative programming and education to build skills that would reduce his risk –specifically, cognitive behavioural therapy for psychosis, and other therapies to help him with coping, social interactions and healthy relationships. Third, although it is likely that Mr. Leal-Hernandez’s problematic sexual behaviors were driven by his psychotic illness (delusional beliefs, in particular), there are other potential risk factors that ought to be investigated and, if relevant, addressed, including paraphilia and poor psychosexual development. These investigations needed to happen after Mr. Leal-Hernandez’s symptoms were further stabilized.

24The entirety of the evidence before the panel supported the opinion of Dr. Wu that these interventions needed to happen in hospital and were necessary and appropriate to ameliorate the risk that Mr. Leal-Hernandez currently poses to the safety of the public. They would also increase his chances of having a successful, long-term reintegration into the community.

25Dr. Wu did not offer an opinion as to how long he expected Mr. Leal-Hernandez might need to remain an inpatient but did recommend that his disposition include community living in approved accommodation. We viewed this as entirely appropriate given Mr. Leal-Hernandez was in the community from the time of the first index offence until the hearing (sometimes in hospital under the Mental Health Act), during which time his insight improved, he sought voluntary admissions to hospital, and he cooperated with a trial of clozapine. If all goes well, Mr. Leal-Hernandez may well be discharged to live in the community over the course of the year.

26The disposition also includes other terms sought by the hospital and agreed to be necessary and appropriate by the parties, including the full range of passes, prohibition on use of substances, and submitting urine samples. After discussion at the hearing (and again with the agreement of all parties) we added a prohibition on communicating with the victims of the offences and a prohibition on being in the presence of anyone 16 years of age or younger unless in the presence of staff or an approved person. Regarding this last term, we were assured that it was very unlikely to negatively impact on his ability to find community housing when the time came. If the term nonetheless does prove to be an impediment to housing, I urge the hospital to consider asking the Board to convene an early hearing to consider the term in the context of an updated record.