Ontario Review Board
Re: David Small
ORB File No: 7189
Hearing held on: November 19, 2025
Place of hearing: Via Zoom Videoconference
Pursuant to: Section 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Mr. C. Flanagan
Members: Dr. T. Verny Dr. G. Stones Ms. N. Nathanson Ms. Ruth MacIntyre
Parties Appearing:
Accused: David Small Counsel: Mr. M. Schloss
The person in charge of hospital: Counsel: Ms. L. Barney
Attorney General of Ontario: Counsel: Ms. C. Czik
REASONS FOR DECISION
(Dated December 15, 2025)
Introduction
[1]. David Small, age 39, on July 31, 2017, was found not criminally responsible on account of mental disorder on a charge of first-degree murder, contrary to the Criminal Code. Mr. Small is subject to a Detention Order of the Ontario Review Board (the “Board”) at St. Joseph's Healthcare Hamilton (the “hospital”). In the most recent Disposition dated September 15, 2025, Mr. Small was ordered detained with privileges up to and including community living. Mr. Small had been living in the community at the time of the Restriction of Liberty (‘ROL”).
[2]. On October 1, 2025, the hospital notified the Board that on September 23, 2025, Mr. Small had been readmitted to the Forensic Inpatient Unit, Orchard 3, due to very high blood glucose levels prompting serious concerns about the management of his Type 2 Diabetes.
[3]. The hospital requested a Restriction of Liberty hearing which was acknowledged by the Board on October 2, 2025.
[4]. On November 19, Mr. Small appeared by Zoom before the Board regarding the Restriction of Liberty. At the hearing, Mr. Small’s mother, Carolyn Hopper Small attended and gave evidence. The deceased’s aunt and sister as well as Mr. Small’s sister were also in attendance.
[5]. The Board had before it as Exhibit 1, the Restriction of Liberty Report, dated November 3, 2025, Exhibit 2 the Hospital Report, dated August 6, 2025, and Exhibit 3 email correspondence from Carolyn Hopper Small. The Board also had before it the Restriction of Liberty correspondence, most recent Disposition, and the most recent Reasons for Disposition.
Positions of the Parties
[6]. In preliminary positions, the hospital took the position, supported by Crown counsel, that the Restriction of Liberty was necessary and appropriate, the least onerous and least restrictive course of action that could have been taken, and remained so up to the date of the hearing. Patient’s counsel, Mr. Schloss, took the position that the Restriction of Liberty was not necessary and appropriate at the time it was initiated, and it continued to be unwarranted up to the date of the hearing.
Diagnosis
[7]. Mr. Small’s current diagnoses are Schizophrenia and Type 2 diabetes.
Index Offence
[8]. The circumstances of the index offence are outlined in the Hospital Report. A summary of the offence is taken from the September 15, 2025 Reasons for Disposition:
Briefly, Mr. Small and the deceased, [name deleted] were in a relationship and had been living together since August 2014. Each was being assisted by their own ACT team. In January 2015, Mr. Small was demonstrating increased paranoia and may have been “flushing” his medications. On January 15, 2015, it was decided that Ms. [deceased’s name deleted] would remain in the shared apartment and Mr. Small would move out at the end of January. On January 16, 2015, Mr. Small purchased a knife, went to the residence he shared with Ms. [deceased’s name deleted], and stabbed her multiple times, killing her.
The Evidence
Restriction of Liberty Report
[9]. The Board was apprised through the Restriction of Liberty Report that in early October 2025 Mr. Small was experiencing persistent, very high capillary blood glucose (CBG) levels (27 mmol/L (morning) – 31mmol/L (evening). (In his oral testimony, Dr. Kolawole, Mr. Small’s most responsible psychiatrist, noted that his levels should be less than 10.) Staff observed lethargy, cognitive slowing, and poor recall. Mr. Small was readmitted to hospital on October 23, 2025.1
[10]. The ROL Report at page 2 states:
Given the high risk of hyperglycemic crisis, including coma and death, combined with impaired judgment, a high risk of decompensation psychiatrically, and inability to self-manage his medical condition in the community, admission to the forensic inpatient unit (R3) was deemed necessary. Mr. Small consented to admission at the time.
[11]. As summarized in the ROL Report, Mr. Small appeared lethargic but denied psychotic symptoms and was oriented to person, place and time. His mental state remained at baseline throughout the admission. A diabetic diet and regular glucose level monitoring were implemented. He was found with large quantities of candy on admission. Mr. Small was advised of the consequences of severe hyperglycemia, but he demonstrated limited understanding of risks associated with high blood sugar levels. A dietician became involved regarding appropriate food choices. Sliding-scale insulin was initiated. Due to insufficient understanding of metabolism, insulin and carbohydrate intake, Mr. Small had not, at the time of ROL Report, been cleared to self-administer insulin. On occasion, he had refused insulin, including after CBG readings of greater than 15 mmol/L.
[12]. Because of his medical instability and inability to self-manage his diabetes, the residence where he had been living, Emmaus Place, would not accept his return. His current management plan permit 72 hour passes weekly to visit his mother.
Oral Evidence at the Hearing
[13]. Dr. Kolawole provided evidence that amplified the ROL Report. He stated that Mr. Small’s blood glucose levels were so high that hospital intervention was required for medical stabilization as there were risks of coma, hypertension and fatality and a concern regarding potential decompensation of Mr. Small’s mental state.
[14]. Mr. Small had been diagnosed with Type 2 diabetes in January 2025. Dr. Kolawole referenced page 85 of the Hospital Report that states:
…On June 10, 2025 he was seen by his family physician and was observed to be very lethargic during the meeting. The family physician advised that he be assessed by the emergency department due to poorly controlled glucose levels. There was a loss of 9 lbs. in the last month and 20 lbs in the last four months. Given the risk of decompensation, of his mental health secondary to physical health decompensation, Mr. Small was admitted to hospital following his discharge from the emergency department to monitor his mental state and glucose levels. For the duration of the admission, Mr. Small’s mental status remained stable. His glucose levels were monitored and a new medication was prescribed by the nurse practitioner. His discharge plan included aggressive lifestyle interventions for diet and exercise management.
[15]. Prior to the current admission, Mr. Small had been seen at least twice per week by the occupational therapist and/or case manager of the management team. Diabetes management had been discussed for the past several months during all of those meetings. The clinical team worked with Mr. Small to manage the condition and a nurse at Emmaus Place provided support with glucose readings and health teaching.
[16]. Mr. Small was residing at Emmaus Place, prior to the ROL, a supported transitional residence to address his needs and develop independent living skills. The outpatient forensic team encouraged Mr. Small to do some cooking and shop for food prior to visits from the occupational therapist who would cook with him during visits. However, staff observed very little food present during their visits.
[17]. Since returning to hospital, Mr. Small is much better. He receives insulin when his blood sugar levels get to a certain point. (i.e., sliding scale). On November 18, he attended a diabetes clinic. His mother was present by phone for the meeting. Dr. Kolawole advised that it is an “all hands on-deck” approach for Mr. Small involving a nurse practitioner and occupational therapist; the team has consulted with an endocrinologist.
[18]. Upon questioning by counsel for the Ministry of the Attorney General, Dr. Kolawole stated that a family meeting had been held in September and they are now involved. Dr. Kolawole acknowledged that the family had not been involved earlier and this will be corrected going forward.
[19]. Dr. Kolawole stated that the uncontrolled hyperglycemia was a medical emergency. The intervention has resulted in the involvement of a team of professionals to gain better control of Mr. Small’s blood glucose levels. Dr. Kolawole stated that the intervention continues to be justified to manage his condition.
[20]. Dr. Kolawole agreed that Mr. Small’s Disposition requires any accommodation must be approved by the hospital. For discharge into community housing, a residence similar to Emmaus Place will be required with staff support and monitoring as well as support for food shopping and cooking. While housing at Emmaus Place has been terminated, if Mr. Small is able to consistently control his blood sugars, and successfully utilize the supports provided to him, he can apply for accommodation to another residence or re-apply to Emmaus Place. His blood glucose levels should be below 10. His levels are now checked twice a day. With medication adjustments and dietary changes, his levels have come down. On November 18-19 readings were 10.2 mmol/, 8 mmol/L and 10.7 mmol/L.
[21]. On questioning by Mr. Schloss, Dr. Kolawole stated that Mr. Small’s mental health has been relatively stable and he has been compliant with medication. If the hospital had not intervened, he could have had a psychotic breakdown. Mr. Small had a flu when he was admitted into hospital, and this could have raised his blood sugars but a high carbohydrate diet including candy could also have increased glucose levels. When asked, Dr. Kolawole noted that anti-psychotic medication can cause diabetes, but many patients take anti-psychotics without getting diabetes depending on factors such as family history. Dr. Kolawole emphasized that all recommendations have been made as a result of consultation between the nurse practitioner and an endocrinologist. A referral has been made to an endocrinologist and the diabetes clinic.
[22]. A new community residence has not yet been explored as Mr. Small’s blood sugar levels must first be fully controlled and supports must be fully in place.
[23]. Upon questioning by the Board members, Dr. Kolawole stated that the hospital had been advised that Mr. Small’s tenancy at Emmaus Place had been terminated due to his acute condition and medical instability. The hospital became involved due to the acute nature of Mr. Small’s condition – hyperglycemia, risk of coma and death and the potential for decompensation of his mental state as a result.
[24]. Mr. Small’s mother gave evidence. She has a background in nursing and psychotherapy. She was not aware of the issues regarding Mr. Small’s blood sugars in the summer. When asked, Ms. Small was unable to recall whether she had been aware of Mr. Small’s re-admission to hospital in June due to his glucose levels. She stated that Mr. Small had come to her home on weekends during the summer and seemed tired but it was not until September (Exhibit 3 indicates this was in mid-September) that she became aware that there was an issue that could impact his housing. She stated that she did not often visit his him at his residence. She sought a meeting with the hospital when she became aware of the housing issue and stated that it was two weeks until it was arranged, taking place after the annual hearing that occurred on September 9, 2025, which she had not attended. She stated that when she became aware of the issue, she put together a plan including a food plan.
Final Positions of the Parties
[25]. In final submissions, hospital counsel maintained its initial position. Ms. Barney submitted that despite significant health teaching over the months by the treatment team, Mr. Small still lacks insight and is unable to mange his blood sugars through proper diet. In this regard, she referred to the ROL Report which stated that on admission, Mr. Small had candy in his pockets. She also highlighted a recent admission to hospital, in June 2025, when Mr. Small was admitted to hospital for elevated blood sugar. Ms. Barney submitted that that the recent admission in October was necessary and appropriate, and the least onerous and least restrictive measure by the hospital given the catastrophic level of Mr. Small’s blood sugar, risking a potential comma or loss of life. Ms. Barney also submitted that the ongoing restriction of liberty is necessary and appropriate and least onerous and least restrictive by the hospital. She submitted that Mr. Small’s community housing is no longer available because Emmaus Place staff do not feel that his diabetes can be properly managed under their care.
[26]. Counsel for the Ministry of the Attorney General continued to support that position. Ms. Czik advised that the Reasons for Disposition were released October 29, 2025, where similar issues were discussed. Two weeks after that hearing, Mr. Small was readmitted.
[27]. Mr. Schloss, for Mr. Small, maintained his position that the Restriction of Liberty was not justified at the time and continued to be unjustified. He stated that there were no imminent public safety concerns to justify the re-admission to hospital. He requested an order from the Board prioritizing housing for the Board or at the least a comment in the Reasons regarding same. He submitted that Mr. Small was compliant with his medication regime and his readmission to hospital was not warranted because of high blood sugar levels as there had not been a deterioration of his mental state. He reiterated that although there was reason to bring him for medical treatment, there was no public safety concern. He referred to the case of M.L.C. v. Ontario (Review Board), 2010 ONCA 843, highlighting that the restriction of liberty must be exercised with the twin goals of public protection and liberty interests, keeping in mind the enumerated factors outlined in s. 672.54 of the Criminal Code.
[28]. Mr. Schloss further submitted that should the Board find that the initial restriction of liberty was necessary and appropriate, the ongoing restriction by the hospital is not necessary and appropriate, and not the least onerous and least restrictive measure. In this regard, he submitted that the hospital has not placed Mr. Small on any waitlists and he remains in hospital because of his blood sugar and not because of his mental state. He submitted that the hospital not seeking housing until Mr. Small’s blood sugar is completely controlled makes the ongoing restriction unwarranted, and not the least onerous and least restrictive measure.
Analysis
[29]. Pursuant to the decision of the Court of Appeal for Ontario in M.L.C. v. Ontario (Review Board), 2010 ONCA 843, the Board is required to determine whether the Restriction of Liberty was justified at the time of the initial restriction and whether the restriction continues to be justified and whether it is the least onerous and least restrictive in the circumstances. We find that the Restriction of Liberty here meets both tests.
The Initial Restriction: Readmission to Hospital October 2025
[30]. Prior to his restriction of liberty, Mr. Small resided in an approved accommodation at Emmaus Place. This transitional accommodation provided necessary ongoing support in conjunction with his forensic outpatient program (FOP) treatment team. In early October 2025, FOP staff reported ongoing concerns regarding Mr. Small's elevated capillary blood glucose with lethargy, cognitive slowing, and poor recall. As emphasized by Dr. Kolawole, whose evidence we accept, there was concern that these exceedingly high glucose levels could cause coma or death and could have a negative impact on Mr. Small’s mental state. This Board notes that only a few months previous (June 2025), there were similar concerns that required a readmission to hospital to monitor his mental state and glucose levels.
[31]. Given the serious ongoing health risks, with the potential negative effect on Mr. Small’s mental state, this Board finds that Mr. Small’s readmission to hospital in October was warranted, necessary and appropriate, and the least onerous and least restrictive measure taken by the hospital, at the time of admission.
The Ongoing Restriction as of the Date of Hearing
[32]. This Board finds that the ongoing Restriction of Liberty at the time of the hearing is warranted, necessary and appropriate and the least onerous and least restrictive measure taken by the hospital.
[33]. Despite ongoing meetings with Mr. Small prior to his most recent admission, his glucose levels became life threatening with a potential negative effect on his mental state. Given this was the second episode in recent months, it was important that the hospital ensure that a sufficient management plan was developed with Mr. Small to address this issue. Since his admission, this has included medical stabilization, education and dietary intervention, insulin management, and implementing a necessary support system of professionals around him, including ongoing consultation and referral to an endocrinologist and diabetic clinic. The hospital is also now involving the family, an important aspect of his support system. In the words of Dr. Kolawole, it is “all hands-on deck”.
[34]. Mr. Small’s Disposition requires any accommodation in the community be approved by the hospital. (i.e. person-in-charge). The approved accommodation, where Mr. Small resided prior to this hospital admission, will no longer accept him given his ongoing demonstrated inability to control his diabetes. Consequently, Mr. Small does not have the necessary and supported accommodation to return to in the community.
[35]. The Board anticipates, and expects, that the hospital will find and transition Mr. Small to suitable approved community housing as soon as practicable when his condition is well enough controlled and supports are firmly in place and working, such that he can live in community housing with sufficient support for his condition.
[36]. In conclusion, this Board finds that the restriction of liberty imposed on Mr. Small was necessary and appropriate, and the least onerous and least restrictive intervention for the hospital to take, both initially and throughout its duration.
DATED this 15th day of December 2025, at the City of Toronto, in the Region of Toronto.
Ms. N. Nathanson Legal Member
Office of the Registrar Ontario Review Board