Re: B. (L.J.), 2025 CanLII 126050

Re: B. (L.J.)

ORB File No: 8834

Hearing held on: Wednesday, November 5, 2025

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

Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code

Before: Alternate Chairperson: Mr. G. Beasley Members: Dr. J. Ferencz Dr. G. Stones Mr. D. Sandor Ms. M. McKinnon

Parties Appearing: Accused: B. (L.J.) (virtual attendance) Counsel: Ms. A. Mamo

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

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

REASONS FOR DISPOSITION

(Dated December 2, 2025)

Introduction

1. The accused, B. (L.J.), is charged with sexual assault, sexual interference, invitation to sexual touching and luring a child and sexual assault, sexual interference invitation to sexual touching, two counts of anal intercourse and luring a child, all contrary to the Criminal Code of Canada. The charges relate to a time period between 2008 and April 6, 2012. On July 8, 2025, Justice M. Garson of the Superior Court of Justice found that Mr. B. (L.J.) was unfit to stand trial. Justice Garson did not conduct a disposition hearing and referred Mr. B. (L.J.) to a hearing before the Ontario Review Board (“ORB”) pursuant to s. 672.47(1) of the Criminal Code. At the time of his arrest on the charges and throughout the criminal court process, Mr. B. (L.J.) had been released on a promise to appear with an undertaking.

2. On November 5, 2025, the ORB convened a hearing at the Southwest Centre for Forensic Mental Health Care (“Southwest Centre”) in St. Thomas, Ontario pursuant to s. 672.47(1) of the Criminal Code. As a result of his medical condition, Mr. B. (L.J.) was permitted to appear virtually from his home in Toronto, Ontario. He was represented at the hearing by counsel, Ms. Alex Mamo. Counsel for the hospital was Ms. Julie Zamprogna and counsel for the Attorney General of Ontario, Mr. David Rows.

Index Offences Allegations

3. The allegations against Mr. B. (L.J.) relate to a time period between the first day of September 2008 and the 6th day of April 2012. The alleged victims are two females, both under the age of 16 years. The details of the allegations are set out in the Crown Synopsis which was filed as an exhibit at the hearing.

Current Diagnoses

4. The current diagnoses are taken from the Hospital Report as follows:

Metastatic Lung Cancer (Stage IV, non-small cell adenocarcinoma)

Severe degenerative disc disease of the spine

Criminal History

5. Mr. B. (L.J.) has no history of criminal convictions.

Background

6. The materials provided to the Board at the hearing do not contain a full chronology of the court process leading up to the fitness hearing on July 8, 2025. As set out above the allegations concern a time frame between 2008 and 2012. The Case Synopsis created by the Chatham Kent Police Service is dated August 5, 2019. The inference to be drawn from that is that these allegations were reported to the police sometime in 2019. Mr. B. (L.J.) was indicted to stand trial on November 2, 2022. Between November 2, 2022 and July 8, 2025, there were a number of appearances in the Superior Court of Justice. The endorsements found on the indictment materials, which were filed as an exhibit at the hearing, indicate that Mr. B. (L.J.) suffered a significant decline in his health due to a diagnosis of metastatic lung cancer. As a result of his worsening medical condition, the court ordered an assessment be conducted for the purpose of the anticipated fitness hearing. This assessment was completed by Dr. Komer on May 12, 2024. Dr. Komer concluded that Mr. B. (L.J.) was unfit to stand trial.

Position of the Parties

7. At the outset of the hearing counsel for the hospital, Ms. Zamprogna, stated that in the opinion of the hospital and the treatment team, Mr. B. (L.J.) is unfit to stand trial, and that the necessary and appropriate disposition was a conditional discharge with minimal conditions. Counsel for the Attorney General of Ontario and counsel for Mr. B. (L.J.) supported the opinion and recommendations as outlined by Ms. Zamprogna.

Evidence

8. The evidence at the hearing was presented by Dr. Ajay Prakash. Dr. Prakash was the author of the Risk Assessment Report prepared for the purposes of the initial ORB hearing.

9. Dr. Prakash testified that since completing his Assessment Report on October 2, 2025, he had the opportunity to meet virtually with Mr. B. (L.J.)'s partner, T., on October 29, 2025. Dr. Prakash said that by way of update Mr. B. (L.J.) had had a recent MRI of his spine and skull, a consultation with a neurosurgeon and a CT scan. Dr. Prakash was advised that although Mr. B. (L.J.)’s illness continues to develop, his condition is stable at this point in time. Dr. Prakash stated that he asked Mr. B. (L.J.)'s partner if there had been any change in Mr. B. (L.J.)'s ability to communicate. She stated that it was not possible to have a logical back-and-forth conversation with him. She said that this had been the case since his first treatment for the tumor in his brain approximately five years ago. Since then, there had been a steady decline in his ability to communicate. She noted that Mr. B. (L.J.) is only awake for about three or four hours during the day. Dr. Prakash stated that he did not speak directly to Mr. B. (L.J.) on October 29, 2025.

10. Dr. Prakash was asked if he had made a mental health diagnosis with respect to Mr. B. (L.J.). Dr. Prakash stated that in a general sense Mr. B. (L.J.) has a history of trauma and of hearing voices which might be related to that trauma. However, Dr. Prakash emphasized that this was not relevant to his conclusion and that Mr. B. (L.J.)'s medical condition was the reason for his conclusion that Mr. B. (L.J.) was unfit to stand trial. Dr. Prakash said that there was no history of substance use and no criminal record prior to the allegations of the index offences. Mr. B. (L.J.)’s personal support at this time comes from his partner, T. Dr. Prakash stated that in his opinion Mr. B. (L.J.) is not a significant threat to the safety of the public.

11. Dr. Prakash stated that in his opinion Mr. B. (L.J.) is not able to rationally communicate for extended periods of time and could not meaningfully participate in a criminal trial. Finally, Dr. Prakash stated that as a result of Mr. B. (L.J.)'s medical condition he would consider him to be permanently unfit at this time.

12. In response to a question from Mr. Rows, Dr. Prakash reiterated that in his opinion Mr. B. (L.J.)'s unfitness is a direct result of the manifestations of his metastatic cancer and other physical health conditions. He stated that although he had not independently reviewed any medical reports, his opinion was based on information received from Mr. B. (L.J.)'s partner and from a review of Dr. Komer’s report prepared for the court. When asked about Mr. B. (L.J.)’s prognosis, Dr. Prakash stated that according to Tina it is “guarded.”

13. In response to questions from Ms. Mamo, Dr. Prakash confirmed that his opinion about Mr. B. (L.J.)'s medical condition was based on the information gathered from Dr. Komer’s report. Dr. Prakash confirmed that in his opinion Mr. B. (L.J.)'s condition was permanent and his fitness to stand trial could not be restored. Dr. Prakash stated that he only interviewed Mr. B. (L.J.) on one occasion and as a result of that telephone interview and his review of the materials, he did not see pattern of violent behaviour. With respect to the proposed conditions of the discharge, Dr. Prakash stated it would not be necessary for Mr. B. (L.J.) to report in person to the hospital. The hospital would arrange virtual appointments similar to the technology being used for the hearing. Dr. Prakash stated that in his opinion it would not be possible for Mr. B. (L.J.) to participate in the trial and to evaluate evidence in order to participate in his defence. He stated that the issue was Mr. B. (L.J.)'s ability to communicate with counsel.

14. In answering questions from the panel, Dr. Prakash stated that to his knowledge there had not been any neurocognitive testing done to determine if there was a possibility of malingering. Dr. Prakash said that all the assessments he was aware of had been done virtually. He did not see that there would be any benefit to in-person assessments. When asked if Mr. B. (L.J.) was ambulatory, Dr. Prakash stated he is able to take a few steps with assistance. Dr. Prakash stated that it is possible that there is a psychiatric diagnosis, but he had not undertaken any assessment to confirm if there was an underlying mental illness. Dr. Prakash stated that in his opinion Mr. B. (L.J.) was suffering from a neurological condition qualified as a “disease of the mind,” meeting the definition of mental disorder. He did not believe that the delusions expressed by Mr. B. (L.J.) represented a major mental illness.

15. Dr. Prakash said the primary concern was one of cognitive dysfunction. Dr. Prakash stated that in his interview of Mr. B. (L.J.) they were unable to have a meaningful back-and-forth conversation. He stated that it was illogical and disjointed. Dr. Prakash testified that in his opinion Mr. B. (L.J.) would not be able to follow the discussions which might take place between the parties to a criminal trial. Dr. Prakash said that Mr. B. (L.J.) appeared to be willing to speak to him and communicated to the fullest extent possible for him. Dr. Prakash stated that it was not his intention to conduct any further testing for Mr. B. (L.J.).

16. Neither Mr. Rows nor Ms. Mamo called evidence at the hearing.

Submissions

17. At the conclusion of the evidence all counsel reiterated the joint submission made at the outset of the hearing that the necessary and appropriate disposition was a Conditional Discharge.

Analysis and Disposition

18. 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. The decision revisited the Taylor Test and expanded the factors to be considered in assessing fitness to stand trial. 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 at paragraph 6:

6[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.

19. The Board is unanimous in accepting the evidence of Dr. Prakash in support of the joint submission made by counsel. The allegations against Mr. B. (L.J.) are of serious sexual misconduct involving two female victims under the age of consent. The alleged incidents occurred between 2008 and 2012. The materials filed at the hearing appear to indicate that the complaints were made to police some time in 2019. Although there was no further information about the court process immediately thereafter, in 2022 Mr. B. (L.J.) was indicted to stand trial in the Superior Court of Justice. The endorsements to the indictment indicate that it was expected that there would be a six to seven-day jury trial. The scheduled trial dates were ultimately abandoned when Mr. B. (L.J.)'s medical condition was sufficiently serious to prevent him from attending court. Ultimately, it became apparent that Mr. B. (L.J.)'s fitness to stand trial had been compromised as a result of his ongoing medical struggles. As a result, the Court ordered an assessment of Mr. B. (L.J.)'s fitness which was completed by Dr. Komer. After a thorough review of the medical files available to him and a virtual assessment of Mr. B. (L.J.), Dr. Komer concluded as follows:

“It is my opinion that Mr. B. (L.J.) is unfit to stand trial. He lacks an understanding of the nature or object of the proceedings and their possible consequences and an ability to communicate with counsel.”

20. This opinion was accepted by Justice Garson and Mr. B. (L.J.) was found unfit.

21. Dr. Prakash was asked to conduct an assessment of Mr. B. (L.J.) for the purpose of the initial hearing pursuant to s. 672.47(1) of the Criminal Code. Dr. Prakash reviewed the comprehensive report prepared by Dr. Komer and conducted his own interview of both Mr. B. (L.J.) and his partner. At page six of his report, Dr. Prakash said as follows:

“Taking the above into account, it is the undersigned’s opinion, from a psychiatric point of view, that Mr. B. (L.J.) is unfit to stand trial. Mr. B. (L.J.) is not capable of communicating rationally with counsel or the Court. He is unable to understand relevant information, apply that information in the context of their decision-making, and intelligibly communicate. Mr. B. (L.J.) is not able to be meaningfully present and meaningfully participate at his trial.”

22. The Board is unanimous in finding that the criteria set out in the decision of the Supreme Court of Canada in Bharwani are met and that Mr. B. (L.J.) is unfit to stand trial. Given the seriousness of his current medical condition, the Board finds that the necessary and appropriate disposition is a Conditional Discharge. Mr. B. (L.J.) should be required to report to the Person in Charge of the Southwest Centre not less than once per month. It is anticipated that this condition can be met by virtual attendance. The Disposition shall also prohibit Mr. B. (L.J.) from associating or communicating in any manner, direct or indirect, with the two named victims of the alleged offences.