Re: Joshua Van Den Assem, 2025 CanLII 120425

Ontario Review Board

Re: Joshua Van Den Assem

ORB File No: 8023

Hearing held on: Monday, September 22, 2025

Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before: Alternate Chairperson: Mr. G. Beasley Members: Dr. T. Verny Dr. R. Chandrasena Ms. K. Tomaszewski Ms. M. McKinnon

Parties Appearing: Accused: Joshua Van Den Assem Counsel: Mr. T.R. McIver

The person in charge of hospital: Counsel: Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Mr. D. Rows

REASONS FOR DISPOSITION

(Dated November 20, 2025)

Introduction

[1]. On December 22, 2021, the accused, Joshua Van Den Assem, was found unfit to stand trial on charges of failing to comply with probation order (x3), theft not exceeding $5000 (x3), possession of property obtained by crime under $5000, resisting or obstructing public or peace officer, mischief not exceeding $5000 (x2) and mischief over $5000, all contrary to the Criminal Code of Canada. By reason of a Disposition of the Ontario Review Board (“ORB”), dated July 19, 2024, Mr. Van Den Assem was ordered to be detained at the Southwest Centre for Forensic Mental Health Care – St. Joseph's Health Care (“Southwest”), London, Ontario. The Disposition ordered that Mr. Van Den Assem be permitted hospital and grounds privileges accompanied by staff, entering the community accompanied by staff or person approved by the person in charge and to live in the community in 24-hour per day supervised accommodation approved by the person in charge. When the Disposition was ordered, Mr. Van Den Assem was detained at the Waypoint Centre for Mental Health Care, in Penetanguishene, Ontario. On April 8, 2025, Mr. Van Den Assem was transferred to Southwest pursuant to the terms of the Disposition.

[2]. On September 22, 2025, the ORB convened a hearing at the Southwest Centre for the purpose of the annual review of Mr. Van Den Assem’s Disposition pursuant to ss. 672.48(1) and 672.81(1) of the Criminal Code. Mr. Van Den Assem was in attendance at the hearing and represented by counsel, Mr. Tom McIver. Counsel for the hospital was Ms. Julie Zamprogna and counsel for the Attorney General, Mr. David Rows.

Alleged Index Offences

[3]. The circumstances of the alleged index offences are as follows:

“The accused resides at 50 David Street in Ridgetown, Ontario. This residence is owned by Sean David, DOB 12 DEC70. This residence is operated as a primary care facility for VANDENASSEM. He is the only tenant that resides there. VANDENASSEM has resided at this residence for approximately 3 years. VANDENASSEM has been diagnosed with Fetal Alcohol Syndrome and Schizophrenia.

VANDENASSEM functions at approximately a 12-year-old level. Currently, Nikisha BLACKWOOD DOB 21 JUL 74 resides there with her 14-year-old son as a caregiver for VANDENASSEM. DAVID is the primary caregiver for VANDENASSEM. There are certain rules that VANDENASSEM is required to follow while residing there. VANDENASSEM has his own separate living quarters that consist of the front living room and the bedroom upstairs. The living quarters of the caregiver Blackwood and her son are in the back of the house with the kitchen. The door from VANDENASSEM’S living quarters is locked. Also, the side door to the house that gains access to the kitchen is locked, preventing VANDENASSEM from entering these areas.

Mr. Van Den Assem is permitted to have one cigarette per hour. The cigarettes are kept in a kitchen drawer, and he wanted to gain access to the kitchen to obtain cigarettes and to look for alcohol.

COUNT #1 MISCHIEF UNDER $5000 SECITON 430(4) CC

At approximately 1800 hrs BLACKWOOD was in the kitchen making supper. At this time, she hear noises at the side door. She heard the breaking of the small screen that is in the upper part of the door. The accused had pulled and damaged the screen to unlock the side door. This caused approximately $100.00 damage to the small window in the door. The accused entered the kitchen area and opened the fridge, looking for alcohol. When BLACKWOOD confronted him about what he was doing he yelled at her to “fuck off” and ran towards her. BLACKWOOD went outside at this time with her son and called police. The accused located cigarettes in the kitchen drawer and went outside to have a cigarette.

COUNT #2 BREACH OF PROBATION SECTION 733.1(1) CC (KEEP THE PEACE AND BE OF GOOD BEHAVIOUR)

On 19 JUL 21, the accused entered into a probation order signed by Justice P. KOWALYSHYN. One of the conditions of the probation order is to keep the peace and be of good behavior. It is obvious by the above charges that the accused is not exhibiting good behaviour. This probation order expires on 18KJUL23.

On October 26, 2021, the Chatham-Kent Police responded to a theft complaint at the Ridgetown LCBO. The following charges arose from Mr. Van Den Assem’s actions: Theft Under $5000, Section 334(b) CC; Possession of Property Obtained by Crime Under $5000, Section 355(b) CC; Possession of Property Obtained by Crime Under $5000, Section 355(b) CC; and Fail to Comply with Probation Order, Section 733.1(1) CC.

The accused entered the LCBO and selected a 750ml bottle of Conundrum red win (value $25), removing it from the shelf and exiting the store, bypassing all points of sale, and making no attempts to pay. The accused then proceeded to open the bottle and chug it as he was walking through the downtown Ridgetown area.

The following two counts arose when Mr. Van Den Assem was located and arrested; Mischief Under $5000, Section 430(4) CC and Resist Peace Officer, Section 129(a) CC.

Upon being located by the police in the Circle K parking lot, the accused revealed his penis and began to urinate on the driver’s side wheel of CKPS police cruiser 201, later requiring sanitation.

When police initiated the arrest of the accused, the accused shoved the officer in the chest and was grounded as a result. The accused continued to struggle, actively resisting officer’s commands and physical apprehension before the arrest was successfully completed.

Due to the accused’s medical state of being COVID-19 positive and having been under quarantine, careful consideration was given, and he was released unconditionally to his caregivers with a criminal summons issued for a future court date.”

Current Diagnoses

[4]. The current diagnoses are taken from the Hospital Report:

Schizophrenia

Fetal Alcohol Spectrum Disorder

Intellectual Disability, mild

Position of the Parties

[5]. At the outset of the hearing, Ms. Zamprogna submitted that in the opinion of the hospital, Mr. Van Den Assem is now fit to stand trial and should be returned to court for that purpose. In the alternative, if the Board were to find Mr. Van Den Assem remains unfit to stand trial, then the hospital submitted that Mr. Van Den Assem should be detained at the Southwest Centre on a Detention Order with privileges outlined in the Hospital Report. Both Mr. Rows and Mr. McIver supported the recommendations of the hospital as to fitness and the alternative disposition.

Background and Personal History

[6]. Mr. Van Den Assem’s personal history is comprehensively reviewed in the Hospital Report which was filed as an exhibit at the hearing. Accordingly, the details will not be repeated in these Reasons. Mr. Van Den Assem was one of four children born to a couple in the Sarnia area. Due to issues of neglect, he was apprehended by the Children's Aid Society. After being placed in several foster homes he and his sister were eventually placed with the Van Den Assems who adopted him when he was five years old. As a child, Mr. Van Den Assem exhibited challenging behaviours including aggression, anger, and noncompliant behaviour. He was developmentally delayed in language and had poor memory and comprehension issues. On examination at the London Health Sciences Centre, he was diagnosed as presenting with the clinical symptoms of Fetal Alcohol Syndrome. Although his overall intellectual functioning is well below average, his non-verbal reasoning abilities are much better developed than his verbal reasoning abilities. As a result of his diagnosis, he qualified for support with Developmental Services Ontario (DSO). Mr. Van Den Assem struggled in secondary school and was eventually expelled from grade 9. He obtained employment, working part-time hours at a goat farm. He also worked at a grocery store with the help of a full-time job coach through Community Living.

[7]. Mr. Van Den Assem reported a significant substance use history which included cannabis, crystal methamphetamine, cocaine, opiates, LSD, and ecstasy. He also began using alcohol in his early teens and was consuming two bottles a day of liquor prior to the index offences. He refused to participate in treatment for alcohol abuse. Mr. Van Den Assem also had a long history of mental health issues. In November 2010, at age 18, he admitted to his adoptive mother that he was experiencing auditory and visual hallucinations including command hallucinations to harm himself. He was diagnosed at Blue Water Health with suffering from a drug-induced psychosis. Following the allegations leading to the alleged index offences, Mr. Van Den Assem was detained at the Southwest Centre before being transferred to Waypoint as a result of his ongoing aggressive behaviour and risk of violence.

Evidence

[8]. The evidence at the hearing was presented by Dr. Mokhber. She is Mr. Van Den Assem’s attending psychiatrist and the author of the Hospital Report. Dr. Mokhber testified that she began treating Mr. Van Den Assem on April 8, 2025. In her opinion, Mr. Van Den Assem suffers from the major mental illness of schizophrenia with intellectual disabilities. He also suffers from substance use disorder which is currently in remission in a controlled environment. Dr. Mokhber stated that Mr. Van Den Assem arrived from Waypoint with a very restrictive Disposition. As a result of the terms of the Disposition, he was not permitted to have indirectly supervised passes within the hospital. Dr. Mokhber said that although there were severe restrictions on his privileges within the hospital, the Disposition did provide for him to reside in the community in a residence approved by the person in charge. The treatment team, however, were not prepared to assume that all other levels of privileges were subsumed by the permission to reside in the community. Dr. Mokhber stated that Mr. Van Den Assem has DSO funding which can be of great assistance to him in transitioning to community living. However, the treatment team are unable to permit him to utilize the indirectly supervised passes which are necessary for Mr. Van Den Assem to meet with the organisations responsible for arranging community living.

[9]. Dr. Mokhber stated that at the present time, Mr. Van Den Assem is symptom free of his schizophrenia. She testified that his cognitive limitations were “mild to moderate.” Dr. Mokhber said that in her opinion Mr. Van Den Assem’s nonverbal abilities are better than his verbal abilities. The importance of this is in assessing his fitness to stand trial. Dr. Mokhber said that Mr. Van Den Assem needs time to verbalize his thoughts and cannot give spontaneous answers. She stated that she had assessed Mr. Van Den Assem’s fitness to stand trial the morning of the hearing. In her opinion, Mr. Van Den Assem was able to answer all the necessary questions with the exception of a lack of understanding of the oath. He did not display any psychotic symptoms during her assessment. Dr. Mokhber said that in her opinion, Mr. Van Den Assem showed a reality-based appreciation of the legal process. She was aware that he had been found permanently unfit in the past.

[10]. Dr. Mokhber said that there were three important factors to be considered in assessing Mr. Van Den Assem. The first was the presence or absence of environmental stressors. She stated that at the Southwest Centre, unlike Waypoint, Mr. Van Den Assem feels safe and calm. He has the ability to concentrate on programs and can attend programs when escorted by staff. He is able to concentrate during the entire program. Second, Mr. Van Den Assem’s mental health is much improved. His dose of the antipsychotic clozapine has been adjusted which has resulted in resolving his symptoms of schizophrenia. He is amenable to participating in 1:1 programs. His disorganization has improved. Third, there have been no instances of substance use at Southwest Centre. This helps Mr. Van Den Assem’s understanding and has resulted in improved brain function. With reminders and support, in her opinion, Mr. Van Den Assem is fit to stand trial.

[11]. Mr. Rows did not have any questions for Dr. Mokhber.

[12]. In response to a question from Mr. McIver, Dr. Mokhber stated that Mr. Van Den Assem is capable to consent to his treatment with antipsychotic medication. He is compliant with his prescribed medications at this time.

[13]. In response to questions from the panel, Dr. Mokhber confirmed that in her opinion the restrictive wording of the existing Disposition was preventing Mr. Van Den Assem from receiving the full benefit of the DSO funding which is already in place for him. He was being denied the opportunity to participate in programs due to the unavailability of staff to provide 1:1 accompaniment. Dr. Mokhber agreed that the person in charge of the Southwest Centre did not interpret the community living clause as thereby subsuming all other privilege levels below it. She agreed that by way of example, were Mr. Van Den Assem to be residing in approved accommodation in the community, he could have indirectly supervised access to the community although he did not enjoy a similar privilege to indirectly supervised access to the hospital. Dr. Mokhber agreed that it was detrimental to Mr. Van Den Assem’s mental status to deny him the opportunity to even begin the process of accessing DSO-supported programs.

[14]. Dr. Mokhber reiterated the significance of her assessment of Mr. Van Den Assem that allowing him the time and opportunity to consider his answers to the fitness test questions was a crucial component of her ultimate opinion. Dr. Mokhber stated that she had considered the decision of the Supreme Court of Canada in Regina and Bharwani and that Mr. Van Den Assem was meaningfully able to participate in his defence.

[15]. Neither Mr. Rows nor Mr. McIver called evidence at the hearing.

Submissions

[16]. At the conclusion of the evidence, all counsel reiterated the submissions made at the outset of the hearing that Mr. Van Den Assem was fit to stand trial and that he should return to court for a trial of that issue.

Analysis and Disposition

17. For many years, the assessment of an accused to stand trial has utilized what became known as the Taylor Test, often summarized as the “limited cognitive capacity test.” The test was essentially a series of questions about the role of the parties to the trial, the meaning of an oath and the potential consequences. In 2023 the Ontario Court of Appeal released a decision of a five justice panel in R. v. Bharwani 2023 ONCA 203. This decision was in turn appealed to the Supreme Court of Canada which released its judgment in R. v. Bharwani, 2025 SCC 26 on July 25, 2025. In upholding the decision of the OCA, Justice O’Bonsawin, writing for the majority in a 6:3 decision stated:

6I disagree. As I will explain, an accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence

And in summary:

77To conclude, the text, statutory context, and purpose of the definition of “unfit to stand trial” support an interpretation of the capacity threshold that requires an accused to be able to make reality-based decisions in the conduct of their defence and intelligibly communicate these decisions to counsel or the court. This necessitates a reality-based understanding of the nature or object and possible consequences of the proceedings, as well as an ability to understand the available options and their consequences, and to select between those options when making decisions. The accused is not required to make decisions in their best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating these decisions.

[18]. The Board is unanimous in accepting the opinion of Dr. Mokhber as supported by all parties that Mr. Van Den Assem is fit to stand trial and should be returned to court. Dr. Mokhber’s opinion is succinctly summarized on page 35 of the Hospital Report in the following paragraph:

“Mr. Van Den Assem demonstrates a sufficient factual and rational understanding of the nature and purpose of the legal proceeding. He is able to communicate with his attorney in a simple but functional manner. He can express his version of events and ask questions. He shows the ability to make basic legal decisions, such as expressing whether he wants to plead guilty or not guilty, although his reasoning is often based on immediate outcomes (“I want to go,” “I didn’t take it”). With proper explanation and patience, he can comprehend the concept of a plea deal and is capable of weighing basic options when information is repeated. He does not currently suffer from any psychiatric condition that would interfere with his capacity to work with legal counsel. He is also capable of testifying, recalling relevant events in his own words. His statements are clear and responsive to questions. While he might struggle with complex questions in court, with proper preparation and support, he is able to describe his experiences meaningfully.

Finally, Mr. Van Den Assem is familiar with general courtroom procedures. He knows that he must remain quiet unless asked to speak, that he must listen to his lawyer, and that there are rules he must follow, including taking an oath and telling the truth. He may benefit from occasional reminders or accommodations, but he is capable of following the flow of proceedings, focusing for limited periods, responding to questions, and tolerating the courtroom environment.

In summary, Mr. Van Den Assem has the present ability to consult with his attorney with a reasonable degree of rational understanding and to meaningfully participate in his own defense. He is not experiencing any symptoms of psychosis or mood disorder that would interfere with his connection to reality. He is aware of the seriousness of the charges and can distinguish between fantasy and reality. There are no indications of delusional beliefs or impaired perception that would impact his ability to stand trial.

Mr. Van Den Assem presents cognitive limitations consistent with a diagnosis of intellectual disability. Despite these challenges, he possesses sufficient factual and rational understanding of the legal proceedings and the capacity to assist counsel in his defense. Overall, Mr. Van Den Assem is fit to stand trial.”

[19]. In her evidence, Dr. Mokhber highlighted the difficulties faced by the treatment team in light of the highly restrictive terms of the Disposition dated July 19, 2024. Notwithstanding a term of the Disposition that would allow Mr. Van Den Assem to reside in the community in 24-hour a day supervised accommodation approved by the person in charge, the terms of the Disposition did not specifically provide for indirectly supervised privileges of any kind while residing in the hospital. As a result, Dr. Mokhber testified that Mr. Van Den Assem has been denied the opportunity to participate in programs otherwise available to him. Significantly, Mr. Van Den Assem has been approved for DSO funding, but this has been unavailable to him due to the restrictive nature of the Disposition. As a result of the unanimous finding that Mr. Van Den Assem is fit to stand trial, the result of this hearing will be an Order that he be returned to court. The Board has no jurisdiction to alter the terms of the current Disposition. However, the Board wishes to advise the parties that in its opinion, the privilege of residing in the community in 24 hour a day supervised housing subsumes in it all other privileges including indirectly supervised access to hospital and grounds and to the community.