Ontario Review Board
Re: K. (A.)
ORB File No: 8220
Hearing held on: Monday, April 7, 2025
Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. C. Fromstein
Members: Dr. L.E. Cappe Dr. C. Young Hon. C. Nelson Ms. B. Naegele
Parties Appearing:
Accused: K. (A.) Counsel: Ms. M. Addie
The Person in charge of Hospital: Counsel: Ms. M. Warner
Attorney General of Ontario: Counsel: Mr. M. Feindel
REASONS FOR DISPOSITION
(Dated June 2, 2025)
Introduction
On January 17, 2023 Mr. K. (A.) was found not criminally responsible on account of mental disorder on the charge of second-degree murder. He is currently subject to a disposition dated April 29, 2024, detaining him on the Forensic Service of the Centre for Addiction and Mental Health (CAMH or Hospital) with privileges up to and including to live in the community in approved accommodation. Of note, this disposition appears to contain a type-written error as the Reasons for Disposition dated June 10, 2024, specified the residence privilege as residing in ‘supervised’ (not ‘approved’) accommodation in the community. The disposition also contained residual privileges pending K. (A.)’s transfer to CAMH.
On October 8, 2024, K. (A.) was transferred to the Centre for Addiction and Mental Health on to the general forensic unit.
On April 7, 2025, a panel of the Board convened at CAMH to review that disposition. K. (A.) did not attend at the hearing. His counsel, Ms. Addie, informed the panel that she had met with K. (A.) on today's date prior to the hearing. He instructed her that he did not wish to attend the hearing but provided her with instructions for her to proceed in his absence. None of the other parties objected to K. (A.) remaining absent. The Board made the order to permit K. (A.) to be absent at the hearing.
At the outset of the hearing, the parties were canvassed as to their initial positions. Ms. Warner, on behalf of the hospital, indicated that she was seeking no change to the current disposition, but that should it read community residence in ‘supervised’ accommodation. She added that the residual provisions referring to Syl Apps should be removed from the disposition. Mr. Feindel, on behalf of the Crown, joined the hospital position. Ms. Addie, on behalf of K. (A.), indicated that she has instructions to concede the issue of significant threat and to agree to a joint position on the current disposition as it is written. She had not specifically received instructions for the re-worded provision of ‘supervised’ accommodation.
Index Offence
- The details of the index offence can be summarized as follows. On March 9, 2021, K. (A.) assaulted his mother resulting in her death. She was shot with wounds to her back and her head. He telephoned police to indicate “my mother is dying”.
Evidence at Hearing
The evidence at the hearing was comprised of the Hospital Report dated March 29, 2025, and the testimony of Dr. Swayze. K. (A.)’s background is set out in detail in the Hospital Report so need not be repeated here. Briefly summarized, he is presently 18 years of age. He has six siblings and was raised by his parents, who separated when he was young. He completed grade 9 in the community but was reportedly enrolled in grade 12 during his incarceration. K. (A.) has a criminal record for robbery. He has a history of substance use beginning at 14 years of age. He had been incarcerated since 2021, initially at Sprucedale Youth Detention Centre and thereafter at Syl Apps Youth Centre since January 2023 prior to his transfer to CAMH in October 2024.
Dr. Swayze reported that K. (A.) has had significant issues since his transition to CAMH with respect to sleep management. He has recently agreed to a plan to give up his cell phone to nursing staff in the evening. His phone has been interfering with his clinical engagement. As a result of this recent agreement the treatment team applied for an increase in his hospital privileges to provide him with escorted community passes. If K. (A.) maintains 70 percent compliance with this voluntary telephone plan for a two-week period it will be left in place. If he does not comply then the team will reconsider the new privileges and consider possibly confiscating his phone. As noted in the Hospital Report, K. (A.) has overused his phone so that it disturbs his wake/sleep cycle. He sleeps in the day and is awake in the night. As a result, he misses his team reviews and is unable to participate in activities. Dr. Swayze noted that passes which would otherwise be afforded to him are not available in the evenings. He is unable to participate in programming which is not available in evening/night hours when he is awake.
K. (A.) shows a fairly significant limitation in his insight and it is the hope of the treatment team that that can be addressed with programming. Dr. Swayze testified that K. (A.)'s first psychotic episode has been reasonably treated with medication. K. (A.) is able to recognize his diagnosis and can speak about the symptoms of his illness at the time of the index offence. However, K. (A.) believes that his psychosis was only a one-time event and that there is no future risk of it returning. He has no insight about his risk as related to substance use.
K. (A.) is presently on an oral medication, paliperidone. Two months ago when there was a resurgence of residual symptoms his paliperidone level was tested and found to be low. His medication compliance is now more rigorously monitored. It has been recommended to him that he receive his medication through injections. With this specific medication, if he responds to monthly injections, they could be increased to every three months. K. (A.) has at this point rejected the suggestion of injectable medications. It is the hope of the treatment team that he will reconsider his position.
The focus in the next year will be on getting K. (A.) back to a normal sleep cycle so that he can move forward with privileges and passes. At that point he could enter into the therapeutic neighborhood program that encompasses psychoeducation, substance relapse prevention. K. (A.) has agreed to 1:1 psychological counseling but this has not yet begun. It is hoped that he will cooperate with psychological testing to better assess his cognitive level of functioning, which will assist in developing future programming. To date K. (A.) remains oppositional.
Dr. Swayze testified that K. (A.) is exceptionally guarded with the treatment team. This impacts his risks. He has declined to see Dr. Swayze on several occasions. It is reported that his father is supportive of his son. Dr. Swayze has not met his father but K. (A.) has been taken on escorted visits to his father's home. Dr. Swayze noted that the father’s residence houses a large number of people in limited space and it appears that his father struggles with providing the basics. His father works at several jobs, has not attended at the hospital and does not own a mobile phone. Dr. Swayze testified that his father’s home would not be an appropriate residence to be considered for future accommodation in the community.
K. (A.) remains overly confident with respect to his progress, as was reported in the Reasons of last year. He believes he has been cured and will not consider the possibility of relapse, so he avoids treatment. It is hoped that programming will be able to take place to focus on supporting improvement in this area. K. (A.) did receive therapy from Dr. Cordoza at Syl Apps. He has just agreed to a referral for psychological treatment. K. (A.) still experiences hallucinations. Cognitive testing will assist the team.
Dr. Swayze was asked as to whether he would make a referral for a medication assessment. He noted that K. (A.) would have to agree. He added that it is something he would consider if K. (A.) still has symptoms on his current medication. He notes that K. (A.)'s view is that he can wait the treatment team out. K. (A.) believes he will go up the ladder path of passes and be discharged. He was not willing to move to CAMH from Syl Apps. The move has been a dramatic change for him as he previously had extensive liberties while residing at Syl Apps.
Ms. Addie questioned Dr. Swayze as to why K. (A.) is still permitted access to his phone when it is clear that it is preventing him from moving forward. Dr. Swayze explained that there are policies with respect to the removal of an individual's personal property such as a phone. The supervising nurses also are not comfortable taking away an individual’s personal property. Dr. Swayze noted, however, that it would appear to be headed that way if K. (A.) does not follow the current agreed plan. Dr. Swayze agreed that the possession of the phone is the major contributor to this issue.
K. (A.) is taking a course at understanding a disposition and the team hopes that will rectify his misperception that he will be discharged without attendance at any programming or engagement with the treatment team. Dr. Swayze testified he does not feel that K. (A.) is presently suboptimally treated. He is currently assessed as capable to consent to medication. Despite K. (A.) trying to avoid taking his medication and having no belief that he needs it, Dr. Swayze testified that he skims the level of capacity. He stated further that if he found K. (A.) to be incapable, K. (A.) would challenge it and the CCB would likely find him capable. If he was found incapable and his father were to become his substitute decision maker that would cause further difficulties because in Dr. Swayze’s view, his father is not supportive of medication and his father does not speak English. Ms. Addie suggested that in the past K. (A.)'s uncle, who has a phone, had been a source of communication.
Dr. Swayze noted that Syl Apps has still not provided the records that have been requested of them.
Dr. Swayze was asked about comments made by K. (A.) to counsel that “he has been told by nursing staff that he need not attend the team review because his doctor is not attending”. Dr. Swayze testified that that is not correct as he is present at all reviews.
Dr. Swayze was asked about his views as to whether the term “supervised” is necessary with respect to provision for community housing. He testified that at such time as K. (A.) is moved into the community it will be to “supervised” housing. Dr. Swayze testified that he does not need the term included in the disposition for him to make that decision. On that basis he stated that it would make virtually no practical difference whether the term “supervised” was included or not as the decision with respect to housing placement is up to the treatment team.
Dr. Swayze was asked whether it is likely that K. (A.) will be able to be discharged into the community within the next 12 months or whether he might resent the inclusion of that privilege in the disposition and it not being granted. Dr. Swayze said it is the hope that K. (A.) will engage with the team. The treatment ladder has been explained to him and he has been given a copy of that. He expressed the hope that as suggested it is possible that K. (A.)'s uncle might possibly be able to reinforce these issues. At this point, despite the encouragement of the team, it is virtually impossible to get K. (A.) to accept this or participate.
K. (A.) presents as wearing a hoodie and sitting quietly so that he cannot actually be seen. He stays in his room and does not interact. He only speaks to Dr. Swayze if there is something that he wants to discuss which makes it very difficult to determine his present mental status. He has the firm goal to return home to his family. K. (A.) has shown him an article that he found on his phone about the danger of the medication which is being administered to him.
Dr. Swayze responded to questions about the reasonable prospect of community living stating that K. (A.) has now agreed to a voluntary plan. If he continues on this, he could begin to have passes escorted into the community for up to 60 minutes a day. Perhaps having the experience of greater privileges will encourage K. (A.) to further co-operate and expand his goals. He expressed that removal of community living privileges would possibly be detrimental to K. (A.)’s progress as it would remove his hope for future goals. He expressed that he hopes that the tedium that K. (A.) has presently experienced will dissipate as he has more interesting things accessible through greater passes. He currently has no indirectly supervised privileges.
Dr. Swayze indicated that he had been unaware that K. (A.) was not willing to attend today's hearing. Had he known this, he would have tended to encourage him to attend.
Submissions
Ms. Warner submitted that K. (A.) has been at CAMH for six months since the time of his transfer. It appears he is in the early stage of getting settled and becoming invested in his rehabilitation. There is a significant amount of work to be done to ensure his medication compliance, his engagement in appropriate programming and therapeutic activities and optimizing his medication. These are the key aspects in managing his risk and supporting his rehabilitation. The disposition proposed provides a large degree of latitude with room to grow. The hospital supports maintaining the provision for community living as either supervised or approved accommodation. She noted that this takes into consideration Dr. Swayze’s evidence that whatever is written in the disposition, supervised accommodation is the first type of accommodation that will be considered. Ms. Warner also provided recommendations for the framing of the disposition to conform to the normal layout of inclusion of passes, escorted, accompanied and indirect on the hospital grounds, community passes into the GTA and escorted, accompanied and indirectly supervised and the community living as is proposed.
Mr. Feindel further stipulated that the 100-kilometer radius in the privileges should be varied to the GTA (Greater Toronto Area). He submitted that supervised accommodation is the necessary and appropriate level of community living. He noted last year’s panel dissent where the Board struggled even with the inclusion of community living. The majority had agreed to community living based upon it being in supervised accommodation. Based on the evidence at the hearing, should he be able to transition to community living, it would require supervised accommodation (not necessarily 24/7). Residing with his family is not plausible on the evidence. He noted that it would have been beneficial for K. (A.) to have attended at this hearing so that he would have heard the evidence and the issues before the Board.
Ms. Addie submitted that she will not oppose a joint submission of a condition for supervised accommodation. However, she noted that Dr. Swayze’s evidence is that it will make no difference in reality whether the term “supervised” is included or not. She submitted that it would therefore meet the definition of least onerous and least restrictive to have that condition stated as simply residence in “approved” accommodation in the community. Ms. Addie noted that K. (A.)'s transition from Sly Apps to CAMH has not gone well, though no one is to blame. He was, on the evidence, more engaged when he was a resident at Sprucedale and at Syl Apps. The lack of receipt of records by CAMH from Syl Apps is a problem because it makes it difficult to know what worked and what did not. Clearly, the most immediate problem that must be addressed is K. (A.)'s lack of participation because he is not sleeping. She queried whether this was possibly a negative symptom of his illness or a medication issue. It has been six months since his transfer to CAMH and this has been an ongoing and very detrimental problem.
Analysis and Conclusion
On the evidence, the Board finds that K. (A.) represents a significant threat to the safety of the public. We recognize that this is a joint position, and we make this finding independently. K. (A.) engaged in the most serious of criminal acts. He is currently not participating in any rehabilitative programs at the hospital and has been resistant to engagement with the treatment team. This appears to be the direct result of his waking/sleep issues. It is his possession of his cell phone, on the evidence, that is the foundation of this as he is on the phone all night and he sleeps in the day. Positively, he has very recently agreed to surrender his phone to the nursing staff in the evening. As part of this agreement he will be afforded escorted community privileges. It is hoped that he will comply with this plan and that this will provide an opening for his rehabilitation.
The issue of contention at the hearing was regarding the specification between “approved” accommodation and “supervised” accommodation in the community living privilege. The Board understands the evidence of Dr. Swayze that any move to community living that takes place in the upcoming year must be to be “supervised” accommodation, and that that is the decision the treatment team would make regardless of the wording of the disposition. It is the obligation of the Board to create the necessary and appropriate, as well as least onerous and restrictive, disposition that takes into account the factors of s. 672.54, including the primary factor of the safety of the public as well as K. (A.)’s mental condition, his reintegration into the community and his other needs. In exercising this duty we must on the evidence stipulate that K. (A.)’s community accommodation will be in ‘supervised’ accommodation.
With respect to the privilege of indirectly supervised privileges that will be contained within the disposition, the Board includes that is for the intended purpose of allowing K. (A.) trial placements at any perspective housing.
It is of concern to the Board that K. (A.) has not been able to move forward in the six months that he has been at CAMH because of the sleep difficulties and his lack of engagement. It is our view that it would have been helpful to K. (A.) if he had appeared in person before the Board and have heard the evidence. This may have enabled him to better understand the role of the Board and his trajectory towards his future goals. We strongly encourage K. (A.) to attend both at team meetings with his treatment team as well as at future hearings before the Ontario Review Board. We hope that there will be future progress wherein K. (A.) engages with his treatment team which will support his reintegration and his accessing greater privileges.
We include the privilege of residing in supervised accommodation in the hope that K. (A.) will proceed up the privilege ladder to the point that he can be considered for community residence within the upcoming year.
DATED this 2nd day of June, 2025, at the City of Toronto, in the Toronto Region.
Ms. C. Fromstein Alternate Chairperson
Office of the Registrar Ontario Review Board