Re: James W. Payne, 2025 CanLII 129579

Ontario Review Board

Re: James W. Payne

ORB File No: 7218

Hearing held on: Monday, November 17, 2025

Place of Hearing: Providence Care Hospital

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

Before: Alternate Chairperson: Mr. J. Hanbidge Members: Dr. R. Kunjukrishnan Dr. S. Wiseman Ms. K. Weisbaum Mr. J. Cyr

Parties Appearing: Accused: James W. Payne Counsel: Mr. C. Carter Person in charge of hospital: Counsel: Ms. T. Tom Representative: Dr. Z. Selhi Attorney-General of Ontario: Counsel: Mr. A. Scott

REASONS FOR DISPOSITION

(Dated December 8, 2025)

Introduction

1On September 6, 2017, the accused, James W. Payne, was found not criminally responsible on account of mental disorder on charges of assault, causing a disturbance and three counts of failure to comply with a probation order, all contrary to the Criminal Code of Canada (“Criminal Code.”) He is currently subject a Disposition and Decision of the Ontario Review Board dated November 21, 2024, which detains him at the Secure Forensic Unit of the hospital with privileges up to and including living in the community in accommodation approved by the person in charge.

2On November 17, 2025, the Ontario Review Board convened at the Providence Care Hospital (the “Hospital”) to conduct Mr. Payne’s annual review pursuant to section 672.81(1) of the Criminal Code.

3Ms. T. Tom represented the interests of the Hospital. Mr. A.R. Scott represented the interests of the Attorney General of Ontario. Mr. C. Carter represented Mr. Payne, who was not in attendance.

Preliminary Matters

4At the outset of the hearing, Mr. Carter advised the panel that his client did not wish to attend the hearing but had given instructions to proceed in his absence. The panel granted Mr. Payne’s absence pursuant to section 672.5(10)(a) of the Criminal Code.

Position of the Parties

5Ms. Tom, on behalf of the Hospital, advised the Board that the Hospital was seeking no change to the current Disposition. Mr. Payne continues to represent a significant threat to the safety of the public and the Hospital seeks a continuation of the previous Disposition Order on the same terms and conditions. On behalf of the Attorney General of Ontario, Mr. Scott stated that the Crown joined the Hospital. On behalf of Mr. Payne, Mr. Carter stated that his client had given him instructions to join with respect to the Hospital’s position regarding significant threat and the terms of the Disposition Order.

Index Offences

6The facts of the index offences are set out in the Hospital Report dated November 7, 2025, filed as Exhibit 2 at the hearing and summarized in last year’s Reasons for Disposition as follows:

“On June 24, 2017, Mr. Payne was subject to two probation orders, the first commencing on March 31, 2016, following his conviction for uttering threats and breach of probation, and the second having commenced on June 19, 2017, following his conviction for assault.

On June 24, 2017, he gained access to the property of St. Mary’s Cathedral in Kingston. He was approached by the custodian, who asked him to leave the property as a result of Mr. Payne having caused a disturbance on June 24th and on earlier dates. Despite the request, Mr. Payne entered the building and walked up to the front altar, swearing loudly in front of hundreds of congregants attending the Sunday service. He left the church and while still on church property assaulted the custodian by shoving him in the chest and head area. The victim suffered no injuries from the assault.”

Background History

7Mr. Payne is presently 62 years of age. He was the fifth of six children in his family. All siblings, according to a report by his sister, have struggled with various forms of addiction and mental health issues. One sister was suicidal and died of a drug overdose. All siblings struggled with learning disabilities and Mr. Payne left school at age 13 to move to Toronto to work. He has been unable to maintain even casual employment in recent years.

8He was married for 14 years and has four children, all of whom are now adults. He has a long history of substance use issues including use of marijuana, alcohol, and crystal meth- amphetamine. The Hospital Report notes that his non-compliance with his prescription medication, combined with substance abuse issues, has led to many conflicts with the criminal justice system and interfered with his family relationships.

9The Hospital Report indicates Mr. Payne began smoking cigarettes at age eight and cannabis by the age of 12. He sniffed glue around the age of 13 or 14 and quit school at age 13 to work in carnivals and unskilled employment. He attempted suicide with LSD twice at age 13 and made numerous suicide attempts in the following years by overdose, suffocation, asphyxiation, and once, at age 21, by stabbing himself in the abdomen. His work functioning declined as his illness progressed and he has been on a disability pension for many years.

10Mr. Payne’s first psychotic episode occurred around the age of 17 when he apparently experienced a drug-induced psychosis. He was admitted to the Kingston Psychiatric Hospital (“KPH”) in December 1981 and was discharged in April 1982 with a diagnosis of bipolar disorder.

11Subsequent admissions to KPH occurred: from September to November 1984; in December 1984; from February 1985 to June 1987; in May 1990; and from May to June 1994. All presentations were for manic relapse. The next admission to Providence Care (the successor of KPH) was in March of 2007 and then from April to May 2007. Further admissions occurred between 2015 and 2017.

12Around the age of 50, Mr. Payne underwent major surgery, in addition to chemotherapy and radiation treatment at Kingston General Hospital (“KGH”) for esophageal cancer. Although he received a clean bill of health six months after his cancer treatments were completed, he has not followed up with his oncologist since that time. His mental health has decompensated since he received cancer treatment. The oncologist informed his family the chemotherapy and radiation targeted the brain cells that were receptive to his antipsychotic medication and interfered with the therapeutic benefits of the antipsychotic medication. The Hospital Report states Mr. Payne has never returned to the state of wellness he once enjoyed, and the oncologist told his family his present mental state may be his new baseline. His daughter also noted that he had dramatically worsened from 2019 onwards.

13The Hospital Report traces Mr. Payne’s course of treatment while under the jurisdiction of the Board and details his treatment in the past reporting year. His diagnoses are Schizoaffective Disorder – Bipolar Type, Substance Use Disorder (Stimulant and Opiates), Tobacco Addiction, Organic Brain Syndrome, and Pre-Morbid Intelligence (borderline to low average). His mental illness is complicated by a longstanding history of stimulant and opiate abuse. He is described as historically struggling with poor adherence to his psychiatric medications and as having had multiple psychiatric admissions. His esophageal cancer treatment in 2013 negatively affected the course of his mental illness and his admissions became more frequent thereafter.

Evidence at the Hearing—Oral Evidence of Dr. Zoe Selhi

14The Hospital’s evidence was presented through the Hospital Report and through the oral testimony of Dr. Zoe Selhi, Mr. Payne’s attending psychiatrist.

15In response to questions from Ms. Tom, Dr. Selhi testified that she has been Mr. Payne’s treating psychiatrist since April 2024. She had reviewed the Hospital Report and signed it on November 12, 2025. She agreed that the Detention Order should be continued.

16With respect to the summary of risk and conclusions at page 47 of the Hospital Report, Mr. Payne continues to be a significant threat to public safety. Dr. Selhi based her opinion on the fact that Mr. Payne has had a difficult year marked by mood instability, several seclusions, use of marijuana on several occasions when using privileges in the community, continued to have problems with poor coping strategies and poor insight.

17Mr. Payne’s major mental illness remains highly sensitive to substances, as demonstrated on two occasions when he used marijuana while using privileges. On those occasions, the forensic team observed him display what Dr. Selhi described as “acting-out behaviour” to the point of requiring seclusion. Page 38 of the Hospital Report lists some of the aggressive behaviours that he engaged in specifically related to his use of marijuana, including being highly agitated, labile and disorganized. In February 2025, he was sexually inappropriate with staff and was subsequently secluded for two days. He was also secluded for three days in June 2025 for very agitated behaviour after he used marijuana. There have been no other known uses of marijuana by Mr. Payne since June 2025, however, on one occasion, he told staff that he had marijuana in his locker, but did not indicate where he obtained it. Mr. Payne is tested for substances at least once a month. He has had no positive tests since June 2025.

18Mr. Payne has received substance use programming, although not recently. He has little insight into the fact that he has substance use problems. It is difficult to get him to participate in any programming. Over the next year, if he is willing and focused, he could join a group to help address his substance use problems, which Dr. Selhi would endorse.

19Dr. Selhi stated that she is supportive of including a community living clause in the Disposition Order, which, while highly unlikely, is possible. Mr. Payne would have to manage privileges for at least six to nine months without substance use in order to be considered for community living. He was able to live in Transitional Rehabilitation Housing Program (“TRHP”) housing prior to 2021 but has been back in the Hospital since then. He has been “unstable” over the past 12 months and slightly worse than over the previous 12 months.

20Dr. Selhi was not entirely sure why Mr. Payne has had such a difficult year. Dr. Selhi described Mr. Payne as having been “relatively medication compliant” with his two antipsychotic medications. She added a mood stabilizer to his regimen and “that has gone relatively well.” It is possible that Mr. Payne is becoming medically compromised, which might impact him cognitively and so might be contributing to him having difficulty with his behaviour. He was seeing a therapist, Dr. Rose, and her departure from the Hospital may have impacted him.

21The treatment team’s current goal is to take a different approach to Mr. Payne’s privileges, evaluating him daily, rather than removing privileges based on his behaviours when he has had a difficult day. Dr. Selhi stated, “We’re trying to give him a little more leeway.” The new approach was first contemplated after Mr. Payne lost privileges in July and August. He has not lost privileges since then. His privileges are being added back slowly and will soon include being in the community within 1km of the Hospital with indirect supervision.

22Outside of substance use programming, the focus of the treatment team is generally on managing Mr. Payne’s behaviour, keeping him on Pod B (rather than on Pod A, which is a more restrictive assessment unit) and limiting the time his privileges are removed. In the past, Mr. Payne has had to spend a lot of time without privileges, or returned to Pod A. Dr. Selhi was not sure how long Mr. Payne was on Pod B, but over the past year, he has gone back and forth between Pods A and B and has struggled both when he has had privileges and when his privileges were withheld. From a treatment perspective, it is important for him to have privileges off the unit. The team endeavours to include Mr. Payne on community outings, which he enjoys and has been doing for a long time. Withholding of privileges pertains to his behaviour while in the community indirectly supervised.

23Mr. Scott had no questions for Dr. Selhi.

24In response to questions from Mr. Carter, Dr. Selhi testified that with respect to Mr. Payne’s use of cannabis in February and June 2025, on both occasions, Mr. Payne had community access while indirectly supervised, used in the community and returned to the Hospital afterward. It was not clear if he returned via security. He had no AWOL attempts but, in general, he returns from the community. During 2025, Mr. Payne’s privilege to be in the community indirectly supervised was revoked approximately three times. All of his privileges were revoked in July and August 2025 and one year ago in October.

25Mr. Carter stated that Mr. Payne has said it is easy for him to obtain cannabis when he is indirectly supervised in the Hospital. As such, Mr. Payne has had access to cannabis a fair amount over the past year but has only used twice and has been tested monthly. Dr. Selhi stated that she believed Mr. Payne when claiming that he had not used substances, which was verified by negative urinary drug screening (UDS) results. Mr. Carter asked Dr. Selhi if it is fair to say that Mr. Payne has had access to cannabis over the year and only used two times. Dr. Selhi replied yes to her knowledge. Mr. Carter asked if it was fair to say that the two primary concerns for Mr. Payne’s risk upon entering the community are his return to substance use and medication compliance. Dr. Selhi replied yes, although there was one episode in which Mr. Payne stole someone’s bank card and offered no explanation, thereby minimizing his behaviour. He has been in trouble for “trading” on the unit, but Dr. Selhi was not aware of Mr. Payne stealing anything before.

26Mr. Carter stated that Mr. Payne has a lot of “historical baggage”, including health issues complicated by chemotherapy, a history of sexual abuse, contributing medical issues and issues related to aging. If in community and relatively stable, Dr. Selhi stated she believes that Mr. Payne would use substances. He would have less supervision in the community compared to being in the Hospital. His goal when in the community is to be able to smoke. When he has community access, he tends to use substances. Mr. Carter stated that Mr. Payne was in the community for a significant period of time prior to using substances and returning to hospital in 2021. Dr. Selhi stated that there have been times when Mr. Payne was in the community and did not use substances.

27Dr. Selhi has attempted to have discussions with Mr. Payne about what he needs to do to transition off the unit, but he is becoming less able to have that conversation. He has had more difficulty medically, for example, with his breathing, which led to hospitalization and requiring oxygen, which might affect him. There could be some psychiatric symptomatology stemming from his medical problems.

28In response to questions from the panel, Dr. Selhi recommended all of the conditions in the previous Detention Order continue, including the weapons prohibition. Mr. Payne has been very difficult to manage in the Hospital and she would be concerned about removing some of the conditions. Ms. Tom pointed out that the CPIC report included a 2016 assault with a weapon.

29Mr. Payne had several medication changes over the past year. For example, as outlined in the Hospital Report at page 37, Dr. Selhi changed his antidepressant medication to one that helps with pain relief and a mood stabilizer. Nursing staff believed that Mr. Payne was worse after receiving his long-acting injectable medication for opioid addiction, which was subsequently reduced. Medication increases have not had a significant effect.

30Dr. Selhi did not recall if she had a conversation with Mr. Payne about clozapine. Mr. Payne has historically had difficulty complying with medication, although that has improved slightly. Reducing his medications would be in his best interests. With respect to clozapine, Dr. Selhi indicated that it is something that she could consider.

31Further medication changes are not being contemplated for Mr. Payne at this time. “He’s been doing ok over the past six to eight weeks.” Mr. Payne’s mood stabilizer medication has been higher previously. Achieving diagnostic clarification is complicated by his personality characteristics. Dr. Selhi stated that if Mr. Payne only had a major mental illness, without a personality disorder or traits, he would present differently. Dr. Selhi stated that even though the addition of a diagnosis of personality disorder “may be somewhat useful”, it was not clear to Dr. Selhi that it will “add anything useful.”

32Urine drug screens (UDSs) are administered on a monthly basis, either randomly or “on demand”, given that Mr. Payne has a substance use problem. He has tested positive on two occasions.

33With respect to risk and past formal risk assessments, the last formal risk assessment from 2024 is included in the Hospital Report at page 40. However, since then, Mr. Payne’s risk might be higher because of his mood lability. The Hospital has a part-time psychologist who conducts risk assessments. Dr. Selhi does not endorse a further comprehensive risk assessment of Mr. Payne at this time for the following reasons: the 2024 risk assessment outlines all of the factors that are relevant now; it has been difficult to manage Mr. Payne’s behaviour in quite a strict setting of a forensic inpatient unit; and the Hospital is not making any changes to the overall opinions on risk, or to Mr. Payne’s Detention Order.

34With respect to page 43 of the Hospital Report, Mr. Payne was found NCR in 2017. Prior to 2017, Mr. Payne lived at TRHP housing. He was admitted to the Hospital in 2021 and has remained there. He is incapable with respect to treatment decisions and his daughter is his substitute decision maker (“SDM”).

35Following the questions from the panel, there were no further questions from either Ms. Tom or Mr. Scott.

36Mr. Carter asked a question regarding an entry at page 43 of the Hospital Report by Dr. Douglas that personality disorder was not present for Mr. Payne. Dr. Selhi stated that a further risk assessment would not reveal a personality disorder. Mr. Carter asked, given there is no history of a personality disorder and that Dr. Selhi thinks there might be a personality disorder, would a risk assessment shed any light on that issue. Dr. Selhi replied, no. Mr. Carter asked, then why conduct a risk assessment. Dr. Selhi stated that a risk assessment is related to the individual’s risk. A personality disorder, if present, would contribute to risk. Dr. Selhi believes that Mr. Payne may have personality factors. Other professionals have written that he has not had a personality disorder. This makes it difficult for Dr. Selhi to make the case that Mr. Payne does have a personality disorder.

37To clarify some earlier statements, Dr. Selhi stated that consistent with the Hospital Report at page 38, Mr. Payne tested positive for substances on February 20 and June 29, 2025, and was administered a UDS on both occasions.

38No further evidence was called.

Submissions

39Ms. Tom submitted that there is a joint position with respect to significant risk and that the appropriate Disposition is a Detention Order including a clause for living in the community. The past year has been somewhat more difficult for Mr. Payne than the previous year. He twice tested positive for cannabis while exercising his privileges in the community and there were concerns both times about the impact of cannabis on his behaviour, such that he was put in seclusion briefly. He does not show insight into the impact of his use of cannabis, although to his credit, he has said he can access it and has only been known to use it twice over the past year. He has struggled to manage his behaviour outside of any cannabis use off the ward. There are some concerns about personality factors, though not enough to warrant an updated risk assessment at this time.

40The focus of the treatment team is on Mr. Payne continuing his progress and managing community privileges when he gets them, which is where his troubles appear to start. Rather than removing all Mr. Payne’s privileges in response to rule-defying behaviours, the new approach to managing these behaviours when exercising community privileges involves assessing how he is doing day-to-day to support him by providing him the appropriate level of privileges rather than start his privileges at the lowest level, with the goal of giving him something to look forward to.

41The evidence is clear that Mr. Payne experiences some tension, as he struggles with his privileges in the community and with living in a very controlled environment in the Hospital. Dr. Selhi stated that it is important as part of this treatment to support Mr. Payne in maintaining some of his privileges. It is not likely that he will live in the community during the next reporting year, but it should not be ruled out. There is no treatment impasse, rather, the Hospital is trying to figure out how best to support and motivate Mr. Payne. It is not clear what all the contributing factors have been in Mr. Payne’s case over the past 12 months, however, the team continues to try to move forward with his privileges. A Detention Order continues to be warranted and the least restrictive and least onerous Disposition to ensure the ongoing safety of the public.

42On behalf of the Crown, Mr. Scott had nothing further to add to Ms. Tom’s submissions.

43Mr. Carter noted Ms. Tom’s submission that Mr. Payne had struggled with community privileges and that he took issue with that characterization. The evidence was not clear regarding how much community access Mr. Payne had: Was it six months, during which he used substances twice? If that is correct, then it shows that for the overwhelming majority of the time, Mr. Payne was able to handle community privileges responsibly. He also had access to cannabis while in the Hospital and that does not appear to have been a problem. Again, the evidence was not entirely clear. Mr. Carter stated that he wished for any “label” to be avoided with respect to Mr. Payne.

44Mr. Carter also noted that it was unclear what factors contribute to Mr. Payne’s behaviours. Further investigative diagnostic options should be considered, for example, to see if his breathing difficulties are contributing to his problems, in order to move Mr. Payne forward through the system.

Analysis

45Having considered all the evidence tendered at the hearing and the submissions, and notwithstanding the joint position of the parties, the Board makes the independent finding that Mr. Payne meets the threshold of significant threat to the safety of the public as defined in section 672.5401 of the Criminal Code and as further defined in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625 (Winko).

46In coming to its decision, the panel considered the four factors set out in section 672.54 of the Criminal Code, namely, the protection of the public, which is the paramount consideration, the mental condition of the accused, his reintegration into society and his other needs.

47Overall, Mr. Payne’s behaviours over the past year indicate that he meets the threshold for significant threat to public safety. His year has been marked by mood instability, several seclusions and problems with poor coping strategies and poor insight. He currently requires the level of supervision provided in the Hospital. He used cannabis on several occasions when using privileges in the community. While there were gaps in the information related to his substance use (discussed further at paragraphs 51, 52 and 53 below), his major mental illness remains highly sensitive to substances. He has little insight into the fact that he has substance use problems. When he used cannabis, Mr. Payne displayed behaviours that led to his seclusion. Some of his related aggressive behaviours included being highly agitated, labile and disorganized, and being sexually inappropriate with staff.

48Having reached the conclusion that Mr. Payne represents a significant threat to public safety, the Board must determine the necessary and appropriate, as well as the least restrictive and least onerous Disposition to manage his risk for the next reporting year. In order to safely manage Mr. Payne’s risk to public safety, the Board finds that Mr. Payne requires an Order that includes detention in the Secure Forensic Unit of the Hospital, with a continuation of the same conditions and privileges as in his previous Detention Order.

49Mr. Payne will have to manage privileges for at least six to nine months without substance use in order to be considered for community living. While the terms of his Detention Order continue to be appropriate, he has been “unstable” over the past year and slightly worse than over the previous year, indicating that the request to maintain the same terms is warranted. At the time of the hearing, Mr. Payne was already on the verge of spending more time indirectly supervised in the community, which he enjoys, demonstrating that the scope of the current terms of the Detention Order still allow him to progress.

50The Board notes that there is a new approach to managing Mr. Payne’s privileges that gives him some leeway day-to-day and will hopefully serve to encourage him and better manage his behaviours, as well as maintain him on the preferred “Pod B.” On behalf the treatment team, Dr. Selhi appeared slightly optimistic that Mr. Payne will benefit from this new approach, albeit still a work in progress. The Board looks forward to an update on the new approach at Mr. Payne’s next hearing.

51Nevertheless, the Board found merit in the final submissions of Mr. Carter regarding the lack of clarity in some of the evidence. Specifically, there is a lack of information tracking Mr. Payne’s time in the community and corresponding use of cannabis, which has implications for his privileges. As Dr. Selhi testified, and as noted by Ms. Tom in her final submissions, it is unlikely—but also possible—that Mr. Payne may progress to living in the community this year. Given the possibility, comprehensive information about his ability to handle himself in the community appears key to making a determination about returning to community living.

52The Board agreed that it remains unclear which factors are driving Mr. Payne’s behaviours. Dr. Selhi herself was not entirely sure why Mr. Payne had such a difficult year and identified several possible medical contributors, any of which could be impacting his cognition and/or behaviours. It is also noted that Dr. Douglas’ 2024 updated risk assessment relied on older risk assessments, and the last comprehensive assessment is from 2022.

53Although an up-to-date assessment related to risk, personality factors, or both may not alter current treatment or management, the Board viewed the absence of any assessment related to Dr. Selhi’s opinion that Mr. Payne has personality factors as a not-insignificant information gap. While it was not clear from Dr. Selhi’s testimony whether or not the results of a personality assessment would be “useful,” a contemporary and comprehensive assessment would clarify whether personality factors play a role or confirm that they do not. As included in the Hospital Report, other clinicians have concluded that Mr. Payne does not have a personality disorder, but that is not a sufficient reason to avoid further evaluation, especially given the possibility that a better understanding of any personality factors might support Mr. Payne’s progress through the cascade of privileges in the coming year, including towards living in the community.

54Mr. Payne’s recent behaviour warrants a finding of significant threat and continuation of existing conditions in the Detention Order. The Board acknowledges that the Hospital has only one permanent psychologist working half-time and that its psychological resources are limited accordingly. Nevertheless, an up-to-date profile will not only assist the panel in its consideration of Mr. Payne’s case at his next hearing but will presumably help ensure that the Hospital is providing care to Mr. Payne based on the best information and towards fully supporting his reintegration and participation in community life. The panel also noted that the Hospital is seeking to retain a psychologist in local private practice and encourages the Hospital with respect to its plan to pursue those external services with regard to Mr. Payne in a timely fashion.

Conclusions and Disposition

55The Board notes that, to his credit, Mr. Payne has had no positive UDS results since June 2025. The Board wishes Mr. Payne success in the coming year, especially as he will soon be granted back the privilege of being in the community with indirect supervision.

56In making this Disposition, the Board carefully considered the positions of the parties, the evidence of Dr. Selhi and the numerous documents entered as exhibits at the hearing, including the contents of the Hospital Report, and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of sections 672.54 and 672.5401 of the Criminal Code and carefully considered the need to protect the public from dangerous persons (with the public’s safety being the Board’s paramount consideration), Mr. Payne’s mental condition, his reintegration into society and his other needs.