Re: Kenneth E. Burns, 2025 CanLII 111832

Ontario Review Board

Re: Kenneth E. Burns

ORB File No: 7788

Hearing held on: Tuesday, September 2, 2025

Place of Hearing: Brockville Mental Health Centre

Pursuant to: Section 672.81(1) of the Criminal Code

Before: Alternate Chairperson: Mr. P. Capelle Members: Dr. R. Kunjukrishnan Dr. W. Loza Ms. M. den Haan Ms. R. MacIntyre

Parties Appearing:

Accused: Kenneth E. Burns Counsel: Mr. G.C. MacLellan

Person in charge of hospital: Representative: Dr. A. Adiele

Attorney-General of Ontario: Counsel: Mr. A. Findlay

REASONS FOR DISPOSITION

(Dated October 29, 2025)

Introduction

1. On October 9, 2020, the Court found Kenneth Burns not criminally responsible (“NCR”) on account of mental disorder on charges of assault with a weapon, assault, and uttering threats to cause death or bodily harm, all contrary to the Criminal Code of Canada (“Criminal Code”).

2. Mr. Burns is currently subject to a Disposition of the Ontario Review Board dated September 3, 2024 which detains him at the Forensic Services of the Brockville Mental Health Centre - Member of the Royal Ottawa Health Care Group with privileges up to and including to live in the community in 24 hour a day supervised accommodation approved by the person in charge.

3. On September 2, 2025, a panel of the Ontario Review Board (“the ORB” or “the Board”) convened a hearing at the Brockville Mental Health Centre (“BMHC”) to conduct Mr. Burns’ annual hearing. Mr. Burns was not in attendance at his hearing but was represented by counsel, Mr. Carey MacLellan.

4. Dr. Adiele informed the Board that Mr. Burns had been telling him (Dr. Adiele) that he did not want to attend the hearing. Mr. Burns did not attend his pre-Board case conference; he is comfortable at the Hospital, and he does not want a discharge or to be moved from where he is in the Hospital. Mr. MacLellan informed the Board that he met with his client, and although Mr. Burns had previously come to hearings, he is not interested in being removed from the facility and is satisfied with his privileges. He stated that he had instructions to proceed in his client’s absence. Parties agreed that the hearing could proceed in Mr. Burns’ absence, and he was excused from attending pursuant to s. 672.510 of the Criminal Code.

5. A Hospital Report dated August 11, 2025 was filed as Exhibit 1 at the hearing.

Positions of the Parties

6. At the outset of the hearing, the parties were canvassed for their initial recommendations to the Board. On behalf of the Hospital, Dr. Adiele submitted that the existing Detention Order without changes remains the necessary and appropriate Disposition.

7. Counsel for the Attorney General agreed with the Hospital’s position but noted that he had some concerns with the possibility of a treatment impasse.

8. Counsel for Mr. Burns reiterated that Mr. Burns has no desire for change. In his view there was no progress from his presentation at the time of the last Board hearing. He indicated that for the purposes of the hearing the issue of significant threat was not contested. Therefore, the Board was presented with a joint recommendation which the parties maintained at the conclusion of the hearing.

9. For the reasons that follow and based on the expert evidence and opinions before us, the Board independently concluded that Mr. Burns continues to represent a significant threat to the safety of the public. The Board further ordered that a continuation of the existing Detention Order is the necessary and appropriate Disposition in the circumstances.

Index Offences:

10. The circumstances are set out in last year’s Reasons for Disposition as follows:

“On June 15, 2020, Ken Burns had an altercation outside 256 King Edward Avenue (the Shepherds of Good Hope shelter in Ottawa). When requested to leave, he refused and began threatening security officers, stating he would follow them and cut off their heads as well as rape their wives and children.

While being detained by security, Mr. Burns spat on one officer’s forehead; there was enough saliva that it ran down his face. He continued to threaten security guards.

Mr. Burns was brought to the hospital for Mental Health evaluation. While being triaged he told the nurse that he knew when she was off work and that he was going to hurt her, then followed by stating he was going to kill her.

On July 20, 2020, Mr. Burns was at the Byward Market Square in Ottawa. A clerk working with the Country Bush Maple Syrup store saw him littering in front of their business. She asked him to pick it up. He became verbally abusive, calling her a bitch and a whore. He then threw a black steel fan rake with a wooden handle through the open window of the store, narrowly missing her head.

Current Diagnoses

11. Mr. Burns’ current diagnoses are:

• Schizoaffective Disorder, Bipolar type, most recent episode manic
• Stimulant Use Disorder - Cocaine and Amphetamine-type substances - in remission while in a controlled environment
• Alcohol Use Disorder, in remission while in a controlled environment
• Opioid use disorder, in sustained remission, in a controlled environment
• Cannabis use disorder, in early remission, in a controlled environment

Background

12. Mr. Burns’ personal history is set out in detail in the Hospital Report (Exhibit 1). Briefly summarized, he is 61 years old, separated from his ex-spouse, and is the father of three adult sons. Before the index offences, he had been ill for some time and was living “in the woods” on the Quebec side of the Ottawa border. Mr. Burns was transient between Ottawa, Montreal, and Winnipeg, while essentially homeless the entire time. He had previously been employed as a general contractor but has been financially supported by social assistance for some time.

13. Mr. Burns has a lengthy criminal record that is set out in the Hospital Report. He has convictions beginning in 1992 for driving while impaired and possession of a prohibited weapon. Further charges beginning in 2003 include carrying a concealed weapon, assaults, obstruct peace officer, theft under $5,000.00, break and enter, and failure to comply with recognizances and a probation order.

14. Mr. Burns was previously diagnosed with bipolar disorder by a psychiatrist in Winnipeg when he presented to the emergency department. He recalled being prescribed Lithium (mood stabilizer), Olanzapine (antipsychotic), Trazodone (sleeping aid), and Clonazepam (benzodiazepine) at one point, which he felt helped. However, due to his travels among the various cities, he lost contact with these mental health professionals and could not get refills on his medications. He noted that he has attempted to attend the emergency departments in Ottawa to go back on his medications, but he was seemingly turned away, which made him lose trust in the medical system and feel that nobody wanted to help him. He clarified that he attended a clinic in Ottawa stating that he was suicidal, but he only had bloodwork done and was told to return in a week, which he did not find helpful.

15. Collateral psychiatric history records from the Ottawa Carleton Detention Centre (“OCDC”) included a consult note by Dr. Brathwaite dated November 19, 2018, where Mr. Burns was referred due to his “mental state.” Mr. Burns reported having made a suicide attempt in jail by overdosing on his anti-psychotic medications.

16. In March 2019, Dr. Brathwaite again saw Mr. Burns shortly after he was returned to the jail. He was pleasant and polite while stating he did not need psychiatric services because “Jesus is my psychiatrist.” On that occasion, Mr. Burns was not taking medications. He was released and did not attend for psychiatric follow up.

17. Following his arrest on the index offences of June 15, 2020, the police took Mr. Burns to the emergency department at the Queensway-Carleton Hospital from the Shepherds of Good Hope due to aggressiveness and assaulting people, including two women. He admitted to drug use but would not elaborate. It was felt that he was too uncooperative, aggressive, and belligerent to benefit from medical admission. The hospital released him back to the police.

18. On June 18, 2020, Mr. Burns was brought from OCDC to the Montfort Hospital emergency department for an involuntary psychiatric assessment. Dr. Klar documented odd behaviour, threatening gestures, verbal profanity, spreading feces and urine all over his cell, painting with his feces and being uncooperative. It was also reported that Mr. Burns was asking for food in the emergency department because he had been three days without eating and drinking due to not trusting the jail food and liquids. Mr. Burns reported he had been raped by a police officer during his arrest. However, Mr. Burns also emphatically stated he did not want to talk to the psychiatrist; he was repeatedly threatening to kill, rape, and punch the staff. It was acknowledged that he was irate and angry, but there were no delusions or evidence of suicidal ideation, so he was sent back to OCDC.

19. In July 2020, Dr. Woods saw Mr. Burns and assessed him as fit to stand trial. Dr. Woods believed Mr. Burns was presenting with an Unspecified Schizophrenia Spectrum and Other Psychotic Disorder. Dr. Woods also noted, from a report dated June 25, 2020, that the patient could be suffering from either Schizophrenia or a schizoaffective disorder, bipolar type. Complicating the presentation was Mr. Burns’ Cannabis Use Disorder as well as an Unspecified Substance Use Disorder (regular use of multiple drugs) … “which could be a major factor on his endorsed psychotic and manic symptoms.”

20. Mr. Burns was released to the Royal Ottawa Mental Health Centre and declined all offers and recommendations for rehabilitative programming. Because of his lack of engagement and refusal to be discharged to supportive accommodation, Mr. Burns’ care was transferred to Brockville in July 2022.

21. Mr. Burns continued to have minimal interaction or involvement with peers or staff or engagement in programming. He reconnected with an adult son who lives in New Brunswick and regularly sends him money.

22. During the 2023-2024 treatment year, Mr. Burns used his privileges to walk on Hospital grounds and to go shopping at Walmart. In May 2024, Mr. Burns was charged with sexual assault due to an interaction with a female co-patient. Although a functional assessment was not done, Dr. Adiele believed Mr. Burns was very independent with activities of daily living.

Evidence at the Hearing

23. Dr. Adiele is Mr. Burns’ attending psychiatrist and adopted the contents of the Hospital Report. He testified as follows:

(a) Mr. Burns refuses to engage in therapeutic programming. He was offered 1:1 programming to accommodate him, but he did not want to do this. The current situation could carry on for years with no end.

(b) He accepts his medication but does not engage further. At page 70 of the Hospital Report, there is a list of programs to which Mr. Burns has been invited but has refused. He states that he does not need treatment programs because he is content to remain in the Hospital.

(c) Incidents of concern during the reporting year are listed at page 75 of the Hospital Report. For example, approximately one month prior to the hearing, Mr. Burns threatened staff. The staff member was upset, and Mr. Burns was moved to a more restrictive ward.

(d) Mr. Burns is currently on probation because of the May 2024 sexual assault charge. The victim has moved out of the Hospital and returned to her residence in the Yukon.

(e) Mr. Burns expresses fear of being discharged from the Hospital and would find it difficult to cope. As a result of his sexual assault charge, he is scared that he would be killed in jail.

(f) Mr. Burns uses his privileges to go to Walmart and to shop. He does not have a desire to do anything else.

(g) Dr. Adiele stated that Mr. Burns feels that he has all that he needs, and that he is quite comfortable. He refuses to undergo cognitive assessment.

(h) Mr. Burns’ medications help to keep his mental state stable.

24. In response to questions from counsel for the Attorney General, Dr. Adiele testified as follows:

(a) Currently Mr. Burns exercises no privileges due to the move to the more restrictive ward following the threat to staff. Mediation with the staff member occurred recently, at which time Mr. Burns apologized to the staff member and was permitted to move back down to the less restrictive unit. He has access to the yard and recreational activities. The suspension of his privileges was temporary.

(b) Mr. Burns continues to demonstrate a lack of motivation. Paragraph 25 of last year’s Reasons notes that Mr. Burns was transferred from the Royal Ottawa because of a lack of engagement.

(c) Because of the threats that Mr. Burns made during the reporting year, Dr. Adiele feels that Mr. Burns continues to represent a significant threat to the safety of the public. Mr. Burns is also still on probation.

(d) At page 74 of the Hospital Report, it notes that the treatment team is considering making it clear that participation in core programs is mandatory. Dr. Adiele stated that he could make attending programs a pre-requisite to exercising privileges. However, Dr. Adiele stated that Mr. Burns would say “fine” and “then lie down and refuse to do it.” The Hospital has tried temporary suspension of privileges and enforced the idea that programming is part of his treatment. However, Mr. Burns’ response was to go to bed, have his meals, and then wait for privileges to be reintroduced. He has been offered the opportunity to go fishing, which he enjoys, but he declined.

(e) Mr. Burns continues to have some form of relationship with a son who Dr. Adiele believes is homeless. Mr. Burns sends him money.

(f) The treatment team has considered a Rule 13 transfer but does not know where they would send Mr. Burns and the concern is that the same scenario would happen at another hospital.

25. Counsel for Mr. Burns inquired of the Crown about the status of Mr. Burns’ sexual assault charges. Counsel indicated that Mr. Burns had pleaded guilty to assault, and the facts were that he admitted to sexual assault on a co-patient, having touched her and kissed her mouth. He pled guilty in order that the victim would not have to testify.

26. In response to questions from the panel, Dr. Adiele testified:

(a) Mr. Burns is capable of making treatment decisions.

(b) As noted at page 75 of the Hospital Report, Mr. Burns made an odd sexually inappropriate comment four weeks ago.

(c) Mr. Burns appeared to be overly sedated, and his dosage of Olanzapine was decreased.

(d) When asked if the Hospital had a plan other than to keep Mr. Burns in Hospital, Dr. Adiele stated that Mr. Burns does not want to do anything else and he has what he needs in Hospital.

(e) It appears that there is cognitive deterioration and that it is becoming worse.

(f) Despite a 2014 suicide attempt and an episode in 2020 when Mr. Burns was not eating, in Dr. Adiele’s opinion Mr. Burns is not depressed, he is generally cheerful, he experiences no distress, “nothing bothers him,” and he eats and sleeps.

(g) When asked if he feels that Mr. Burns is manipulative, Dr. Adiele testified that Mr. Burns is content and does not want the stress of moving. Mr. Burns sees himself as at risk of assault in the community.

(h) There were sexual offences in the past for which Mr. Burns may not have been charged, but these are not new tendencies in Dr. Adiele’s opinion.

(i) When asked if he had considered having Mr. Burns re-evaluated by another treating psychiatrist, Dr. Adiele stated that at weekly meetings all the doctors are present, and he does not know what else another doctor would suggest that hadn’t already been thought of.

(j) A panel member referred Dr. Adiele to the Gonzalez case¹ which concerned treatment impasse. In that case, forward progress impeded by the patient’s refusal to engage was deemed to be a treatment impasse. Dr. Adiele stated that Mr. Burns’ refusal to engage is not a new thing, he does not refuse everything, and he takes his medication. He has not stopped all engagement; he just does not want intensive psychological treatment and refuses cognitive assessment. He complains about his memory and does not contribute in a group setting. When asked again by the panel member if he feels there is a treatment impasse, Dr. Adiele stated that he does not believe so. Mr. Burns has engaged in some treatment, but he has refused treatment that would lead to discharge because he does not want to be discharged. When asked if Mr. Burns is institutionalized and does not want to progress, Dr. Adiele replied that that is the case.

27. No further evidence was presented.

Final Submissions of the Parties

28. At the conclusion of the hearing, the parties maintained their initial positions.

29. Counsel for the Attorney General noted that Mr. Burns has a complicated and difficult to treat illness. Dr. Adiele’s evidence is clear that Mr. Burns does the bare minimum, takes his medication, but is not progressing through the forensic system. He does not even attend his ORB hearings and shows a complete lack of interest. As Dr. Adiele testified, Mr. Burns has become institutionalized. It appears that there is a treatment impasse and unless an independent assessment is completed, it is likely that there will be no change again next year.

30. Counsel for Mr. Burns submitted that he has noted a steady decline in Mr. Burns’ motivation, and he agrees that Mr. Burn is institutionalized. Although he also agrees that there is likely a treatment impasse because Mr. Burns is not inclined to do therapeutic programming, he is unsure how another assessment would change this.

Analysis and Conclusion

31. Based on the evidence and joint position of the parties, the Board has no difficulty reaching the independent conclusion that Mr. Burns continues to present a significant threat to the safety of the public.

32. In Winko, the Supreme Court outlined that, in coming to the conclusion on the issue of significant risk, the Board should closely examine a range of evidence, including: the circumstances of the original offence; the past and expected course of the accused’s treatment; the present state of the NCR accused’s medical condition; the NCR accused’s own plans for the future; the support existing for the NCR accused in the community; and most importantly, the recommendations provided by experts who examine the NCR accused. In coming to our conclusion in this matter, the Board relies on the uncontroverted expert evidence of Dr. Adiele, in addition to the documentary evidence before us.

33. Although Mr. Burns is adherent to his medications, there were 12 noted incidents of concern during the treatment year, as described at page 75 of the Hospital Report. These included possession of contraband, sexual inappropriateness, and a threat to staff to harm her and her family.

34. Mr. Burns has not progressed over the treatment year. In Gonzalez, the Court of Appeal referenced the Supreme Court of Canada decision in Mazzei² and stated at paragraphs 22 and 23:

22The careful wording of the Supreme Court's decision in Mazzei, in dismissing the [hospital’s] appeal, pays close attention to the legislative division of powers in the Criminal Code. The Supreme Court noted, at para. 42, that the board is obliged to identify and address treatment impasses, "where no progress has been made or is likely to be made", on the evidence before it, in light of the board's responsibility "to provide opportunities for appropriate and effective medical treatment with a view to controlling and reducing that risk, to work towards the ultimate goal of rehabilitation and reintegration, and to safeguard the liberty interests of the accused in this process". In doing so, the board may require the "hospital authorities to justify their position regarding any treatment impasse".

23Where the board finds a treatment impasse has been reached, it is Mazzei, supra, at para. 42 "entitled to order a re-evaluation of current or past treatment approaches, and an exploration of alternatives" as part of its "supervisory powers". It may "supervise the medical treatment provided thus far, and to suggest or explore alternative approaches". In doing so, "it is necessary and essential for a Review Board to form its own independent opinion of the accused's treatment plan and clinical progress".

35. At paragraph 44 the Court states: “The board has authority to order an independent assessment under [page464] s. 672.121 of the Criminal Code: Mazzei, para. 39; Runnalls (Re), [2012] O.J. No. 2011, 2012 ONCA 295, at para. 14.”

36. Given the foregoing, the Board orders the Hospital to obtain an independent opinion of Mr. Burns under s. 672.121 of the Criminal Code. It has been some time since Mr. Burns was last assessed, and he should therefore be independently assessed, even if it does not ultimately change anything. This assessment is to be conducted by a specialist not affiliated with the Hospital.

37. In consideration of all the evidence, submissions of the parties, the criteria set forth in s. 672.54, the paramount consideration being the safety of the public, in addition to the mental condition of Mr. Burns, his reintegration into society and his other needs, the necessary and appropriate Disposition is the continuation of the existing Disposition without changes.

Footnotes

1. 12017 ONCA 102, “Gonzalez”
2. 2Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7