Re Abrham T. Berhe, 2025 CanLII 135044

Re: Abrham T. Berhe

ORB File No: 8849

Hearing held on: Thursday, November 20, 2025

Place of hearing: Waypoint Centre for Mental Health Care

Pursuant to: Sections 672.47(3) and 672.48(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. P. Capelle

Members: Dr. R. Sheppard (via Zoom)

Dr. T. Stirpe

Mr. D. D’Intino

Mr. J. Cyr

Parties Appearing:

Accused: Abrham T. Berhe

Counsel: Mr. N. Gehl

The Person in charge of Hospital: Representative: Ms. M. Kraftscik

Attorney General of Ontario: Counsel: Ms. S. Curry

REASONS FOR DISPOSITION

(Dated December 23, 2025)

Introduction

1. On August 19, 2025, Mr. Abrham T. Berhe was found unfit to stand trial on account of mental disorder on charges of assault (x2) and fail to comply with probation order (x2), contrary to the Criminal Code of Canada (the "Criminal Code").

2. The Court did not make a Disposition and ordered that Mr. Berhe be detained at the Waypoint Centre for Mental Health Care (“Waypoint”), pending an initial Disposition of the Ontario Review Board (the “Board”).

3. On November 20, 2025, the Board convened to determine whether Mr. Berhe continues to be unfit to stand trial, and if so, to consider the necessary and appropriate Disposition. Mr. Berhe was present and represented by Mr. Gehl.

4. The panel and the parties were assisted by Tigrinya interpreter, Ms. Hiwot Kebete.

Without Prejudice Position of the Parties

5. Ms. Kraftscik submitted that Mr. Berhe is unfit to stand trial and that a Detention Disposition is necessary and appropriate together with a recommended transfer to either Southwest Centre for Mental Health Care (“Southwest”) or St. Joseph's Healthcare Hamilton (“St. Joseph’s”). Southwest being the preference as the City of Guelph, where Mr. Berhe is from, is within the catchment area for that hospital.

6. Ms. Curry advised that she supports the hospital recommendation.

7. Mr. Gehl did not take a position. He emphasized that Mr. Berhe wants to go home to Guelph on today’s date, or, alternatively, to be permitted to commit suicide. If a transfer request is found to be appropriate, Mr. Gehl, on behalf of Mr. Berhe, requests that he be transferred to St. Joseph's.

Background and Index Offences

8. The circumstances of the index offences are taken from the Crown Brief Synopsis as follows:

“CCC. 266 - Assault

CCC 733.1(1) - Breach Probation Synopsis:

Charge 1:

On February 21st, 2024, at approximately 1530hrs, the accused, Abrham BERHE, attended the Guelph General Hospital with paramedics for a mental health episode. He was triaged and was waiting for nurses in the secure hallway of the emergency department. The victim who was working as the registration clerk approached the accused in the hallway and started to ask him questions. The accused then stood up and lunged at the victim attempting to headbutt her but not connecting. The victim was able to run away, and security intervened before any further assault took place. The events were captured on video at the hospital.

Charge 2:

On January 25th, 2024, the accused entered into a probation order with Justice F.M. FINNESTAD for a period of 2 years, included in the probation order is the condition:

Keep the Peace and be of Good Behaviour

As a result of the above-mentioned incident this condition was violated.”

Current Diagnosis

• Major Depressive Disorder

Evidence at Hearing

9. Ms. Kraftscik called Dr. Komer to testify on behalf of the hospital. He had read and adopted the contents of the Hospital Report. Dr. Komer attempted to interview Mr. Berhe in the hours prior to this hearing. At that time, Mr. Berhe stated he wants medication so he can die.

10. Mr. Berhe was referred for Electroconvulsive Therapy (“ECT”) and is now third on the waiting list. It may take another month for his suitability to be assessed. Dr. Komer anticipates that Mr. Berhe will not be found treatment capable with regard to ECT and the Public Guardian and Trustee (PG&T) would have to be approached for their consent. Mr. Berhe is currently not receiving any psychotropic treatment.

11. Dr. Komer has interviewed Mr. Berhe a number of times regarding the court process with the assistance of a Tigrinya interpreter. Mr. Berhe consistently stated during those interactions that he wants an injection so he can die. As Mr. Berhe will not engage with any meaningful communications with him (Dr. Komer), the doctor does not believe Mr. Berhe could communicate with counsel. At court, Dr. Komer anticipates Mr. Berhe would not answer questions and would focus on his desire to die.

12. Dr. Komer opined that Mr. Berhe’s lack of fitness is illness driven although the Hospital Report speaks of malingering and manipulative behaviours. Mr. Berhe presents as depressed. Referencing the Risk Assessment at page 17 of the Hospital Report, Dr. Komer stated that his patient continues to require a detention in hospital because he wants to be released immediately, absent the establishment of parameters that he would abide by. The concern is that if he left hospital on today's date, he would reoffend.

13. Dr. Komer does not believe his patient requires a high secure setting. Mr. Berhe is no longer secluded. He was in restraints at this hearing because recently, when off the unit, he assaulted a staff member. It is the unanimous decision of the treatment team that Mr. Berhe should be on a unit where he can enjoy accompanied off-unit privileges. Dr. Komer added that typically Mr. Berhe does not leave his room.

14. Mr. Berhe was residing in Guelph prior to the index offences and wants to return there. Guelph is within the catchment of the Southwest medium secure forensic hospital. Dr. Komer added that the St. Joseph's medium secure forensic hospital also has some clinical involvement in the Guelph area and has stated in their Rule 13 response that they are willing to accept Mr. Berhe.

15. It was noted that Southwest, in their Rule 13 response, indicate that Mr. Berhe is not yet ready for a transfer due to his assaultive behaviours. Dr. Komer responded that Mr. Berhe’s level of risk is manageable in a medium secure setting. Southwest has seclusion suites if required as well as the ability to manage a patient with mechanical or chemical restraints as does Waypoint. Reference was made to page 11 of the Hospital Report which indicates that Mr. Berhe was secluded from March 18, 2025, until his LOA on April 23, 2025. When returned to Waypoint on May 9, 2025, he was again secluded until June 25, 2025, due to aggression and difficulty assessing his mental state, notwithstanding the assistance of an interpreter. Additionally, there was an assault in September 2025 that was managed via a September 22 to 27 seclusions. There have been no subsequent seclusions. Dr. Komer added that short periods of seclusion such as these can be managed in a medium secure facility.

16. Dr. Komer stated that in his opinion, which is shared by all members of the treatment team, that Mr. Berhe does not require a high secure setting and either St. Joseph's or Southwest could therefore manage him in a medium secure setting, in keeping with the least restrictive and necessary Disposition. Given Mr. Berhe’s reluctance to answer questions, the full extent of his risk to public safety is difficult to estimate.

17. Mr. Gehl inquired if Dr. Komer was aware of the wait time to transfer a patient to either St. Joseph's or Southwest. Dr. Komer responded that he did not know but anticipated a delay of months to either hospital. If a transfer request is granted, the treatment team will continue to work with Mr. Berhe on fitness coaching and his treatment needs until the date of the transfer.

18. Responding to a question from the panel, Dr. Komer confirmed that if his patient is transferred to a medium secure hospital, the recommendation is that his privileges do not exceed access to hospital grounds. Proximity to Guelph and a hospital’s catchment area would therefore be irrelevant in the coming reporting year but nevertheless important for discharge planning in anticipation of Mr. Berhe’s next annual Review Board.

19. Dr. Komer agreed that given anticipated transfer delays to either Southwest or St. Joseph's, that if Mr. Berhe is deemed suitable for ECT, it would be started prior to any transfer. In the event an earlier transfer became available, the work-up for ECT, initiated at Waypoint, could be referenced to the admitting hospital to expedite the initiation of ECT if deemed advisable.

20. Asked if Mr. Berhe’s presentation includes psychotic symptoms, Dr. Komer responded that his patient provides inconsistent responses but generally denies hearing voices. He has thoughts about his body hair and odour that raise the possibility of somatic delusions.

21. Mr. Berhe’s preoccupation with wanting to die, not answering questions, not eating regularly and hopelessness renders him unfit as a result of depression. Dr. Komer added that his patient’s reluctance to shower is an ongoing struggle with staff and is further indicative of a depressive state. Dr. Komer nevertheless remains mindful of the potential for secondary gain as identified by previous psychiatrists, specifically, that being unfit for trial may delay any immigration deportation proceedings, keep him in hospital, and keep him out of jail.

22. Questioned by Mr. Gehl, Dr. Komer confirmed that he does not recall his patient ever telling him that he wished to be deported. However, he has told Dr. Komer on occasion that he wishes to stay in hospital and on other occasions that he wants to return to jail. As a result, Dr. Komer cannot opine if Mr. Berhe is malingering. The doctor’s impression is that Mr. Berhe has a major depression, and malingering cannot be ruled out. This is why ECT is being considered.

23. Asked if malingering testing will be done, Dr. Komer responded that increased cooperation from Mr. Berhe is required to do psychometric testing. The doctor added that his patient has been referred for fitness coaching and Mr. Berhe has not engaged. Dr. Komer agreed that if ECT is initiated, the hope is that Mr. Berhe will become more responsive.

Closing Observations

24. Ms. Kraftscik noted that Dr. Komer believes Mr. Berhe is unfit to stand trial and could not meaningfully participate in the courtroom process. Additionally, the risk he poses as set out at page 17 of the Hospital Report necessitates a Detention Disposition. A transfer is recommended in keeping with the least onerous and restrictive Detention Disposition. Mr. Berhe’s wish is to return to Guelph which is in the catchment area of the Southwest Hospital. Dr. Komer believes Mr. Berhe could be managed at a less secure facility and Southwest would be an appropriate placement. St. Joseph's has agreed that Mr. Berhe is suitable for transfer to a less secure forensic hospital and that hospital is not opposed to accept him as a patient.

25. Ms. Curry highlighted that significant threat remains given the recent index offences and because further violence occurred subsequent to that date.

26. Mr. Gehl advised that he does not challenge the finding of unfitness and cannot otherwise obtain instructions from Mr. Berhe. Vis-à-vis the recommended transfer, Mr. Gehl would select St. Joseph's for Mr. Berhe because of his (Mr. Gehl’s) belief that the waitlist is shorter than for Southwest. Mr. Gehl reiterated that his client wants to be released immediately from hospital.

Analysis and Decision

(a) Fitness to Stand Trial

27. Earlier this year, the Supreme Court of Canada released its decision in R. Bharwani, 2025 SCC 26, which provides the decisive interpretation of the definition of “unfit to stand trial” within the Criminal Code as well as the application of the “fitness test”.

28. Before the Supreme Court of Canada, Counsel for Mr. Bharwani argued that the fitness test required an accused:

to have analytical capacity, meaning that the accused must possess the ability to make rational decisions in the conduct of their defence

29. The Supreme Court of Canada dismissed the above noted argument, stating the following at paragraph 6, vis-à-vis “fitness to stand trial”:

… 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.

30. When Mr. Berhe’s fitness to stand trial was assessed in the hours preceding this hearing, he did not engage in meaningful communication with Dr. Komer that would have enabled the doctor to opine vis-à-vis fitness. As a result, this panel of the Board has no difficulty in accepting Dr. Komer’s opinion that due to depressive symptoms, Mr. Berhe could not participate in the court process or communicate with his counsel. This is because he is focused on his desire to die. Mr. Berhe does not grasp the consequences of a Court proceeding and cannot work effectively with a criminal lawyer. As a result, he does not meet the Supreme Court of Canada’s fitness to stand trial threshold reproduced above.

31. Notwithstanding references in the Hospital Report to malingering/manipulative behaviours, this panel has no reason to reject Dr. Komer’s uncontested opinion that Mr. Berhe’s depression is the primary contributor to his inability to respond to questions surrounding his fitness to stand trial. It is anticipated that Mr. Berhe’s suitability for ECT will be assessed before the end of 2025. Thereafter, if Mr. Berhe is deemed a good candidate for ECT, the consent of the PG&T will be requested to treat his depressive symptoms via this approach with the objective of improving his mood and mental state together with the tertiary benefit of augmenting the likelihood that he can be made fit to stand trial.

(b) Significant Threat

32. Ongoing significant threat to the safety of the public cannot be speculative. It must entail a real risk of serious physical or psychological harm arising from conduct that is both serious and criminal in nature.

33. In determining whether Mr. Berhe continues to represent a significant threat to the safety of the public, the Board has carefully analyzed the evidence as it relates to the Supreme Court of Canada decision in Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.

34. The Board unanimously finds that Mr. Berhe continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the joint position of the parties and accepted the uncontroverted evidence of Dr. Komer that Mr. Berhe continues to pose a significant threat. The Board also relies on the Hospital Report and more specifically Dr. Komer’s October 15, 2025, Clinical and Composite Assessment of Risk contained therein at page 17 and reproduced below for ease of reference.

Mr. Berhe is a significant threat to the safety of the public. He has a major depressive disorder and a history of an alcohol use disorder. His alleged offences include assaultive behaviour. Mr. Berhe has a prior criminal record and previous charges of assault. He is difficult to assess given his variable cooperation, unreliability and possible malingering, the latter of which has previously been noted as likely done to avoid deportation. Mr. Berhe lacks a supportive social network. He has displayed assaultive behaviour while in custody and during his admission to Waypoint. He has expressed a strong desire to die and be provided with an injection to kill him

35. Given the foregoing, in the absence of an ORB Disposition, Mr. Berhe would likely return to the use of substances which would precipitate the re-emergence of behaviours similar to those seen at the time of the index offences. We are satisfied that absent an ORB Disposition, it is likely that Mr. Berhe will cause serious physical or psychological harm to members of the public and such conduct will be of a serious criminal nature.

(c) Disposition

36. Flowing from the Board’s finding that Mr. Berhe continues to pose a significant threat to the safety of the public, it must shape a Disposition for the year ahead. Its paramount consideration in doing so must be the safety of the public while also considering Mr. Berhe’s needs pursuant to s. 672.54 of the Criminal Code.

37. The necessary and appropriate Disposition for Mr. Berhe provides him as much freedom as possible without subjecting the community to a real risk of dangerous behaviour.

38. In considering Mr. Berhe’s needs, the Board was attentive to the viva voce evidence of Dr. Komer that the treatment team is unanimous in their view that the necessary and appropriate placement for this patient is on a medium secure forensic unit. This would enable him to access accompanied off-unit privileges. This position is maintained notwithstanding that Mr. Berhe came to this hearing in restraints following a recent assault on a staff member and the three previously referenced relatively short seclusions. As the uncontroverted expert evidence that short periods of seclusion can be managed in a medium secure facility, the panel accepts that Mr. Berhe no longer requires the high secure environment of Waypoint.

39. In determining whether Mr. Berhe should be ordered transferred to St. Joseph’s or Southwest, the panel accepts, absent evidence to the contrary, Mr. Gehl’s from the trenches perspective that a transfer to St. Joseph’s is likely faster than a transfer to Southwest. This determination also considered that St. Joseph’s Rule 13 Response indicated a willingness to accept Mr. Berhe’s transfer to their institution.

40. The panel anticipates, given Dr. Komer’s evidence, that if Mr. Berhe is to undergo ECT, it could be initiated prior to any hospital transfer and that the necessary work-up for this treatment, if initiated at Waypoint, could be referenced to St. Joseph’s to expedite the start of ECT at that facility.

41. Finally, the panel would suggest that once Mr. Berhe’s mental state is deemed sufficiently stable that a psychometric assessment be conducted to ascertain if his presentation includes indicia of malingering.

Conclusion

42. Therefore, the Board unanimously determines that the necessary and appropriate Disposition required to manage the threat Mr. Berhe poses to the safety of the public while still meeting his needs, is a Detention Disposition together with a transfer to St. Joseph’s. Interim authority pending the transfer to remain with Waypoint.

43. In making this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Komer and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, Mr. Berhe’s mental condition, his reintegration into society and his other needs.

DATED this 23rd day of December 2025, at the City of Toronto, in the Toronto Region.

Mr. P. Capelle

Alternate Chairperson

__________________

Office of the Registrar

Ontario Review Board