Robert Whitehouse (Re), 2025 CanLII 13611

Ontario Review Board

Re: Robert Whitehouse (DOB: 18.12.51)

ORB File No: 3810

Hearing held on: Monday, January 27, 2025

Place of hearing: St. Joseph's Healthcare Hamilton West 5th Campus, 100 West 5th Street

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

Before: Alternate Chairperson: Mr. J. Weinstein Members: Dr. R. Buckingham Dr. L.O. Lightfoot Mr. K. McKenna Ms. B. Little

Parties Appearing: Accused: Robert Whitehouse Counsel: Mr. L. Dimitry

The person in charge of hospital: Counsel: Ms. L. Barney

Attorney General of Ontario: Counsel: Mr. B. Adsett

REASONS FOR DISPOSITION

(Dated February 10, 2025)

Introduction:

1On July 16, 2003, Mr. Robert Whitehouse was found not criminally responsible on account of mental disorder, on one charge of assault and two charges of breach of probation, all contrary to the Criminal Code of Canada ("Criminal Code").

2Mr. Whitehouse is subject to a Disposition of the Ontario Review Board (the "Board"), dated February 12, 2024, discharging him on conditions, including that he reports not less than once every three months to the person in charge, or designate, at St. Joseph's Healthcare Hamilton, West 5th Campus ("St. Joseph's"). Furthermore, he is required to reside in any facility in the Hamilton area owned, or operated by, Indwell. He is also required to restrict his consumption of alcohol to no more than one beer per day, up to a maximum of two beers per week.

3On January 27, 2025, the Board convened a hearing at St. Joseph's to conduct the annual review of the current Disposition.

4Mr. Whitehouse was present and was represented by counsel, Mr. Len Dimitry. One of Mr. Whitehouse's sisters also attended the hearing.

5A Hospital Report, dated January 10, 2025 (the "Hospital Report"), was entered as Exhibit 1.

6A letter from his sisters, dated January 20, 2025, was entered as Exhibit 2.

7The issue at this hearing is whether Mr. Whitehouse is a significant threat to public safety, as defined in s. 672.5401 of the Criminal Code. If so, the necessary and appropriate Disposition in the circumstances must be determined, bearing in mind the factors enunciated in s. 672.54 of the Criminal Code.

8For the reasons set out below and based on the expert evidence and opinions before us, the Board concluded that Mr. Whitehouse continues to represent a significant threat to the safety of the public.

9The Board ordered that the necessary and appropriate Disposition in the circumstances is a continuation of the existing Conditional Discharge.

Current Psychiatric Diagnoses:

[10] Schizophrenia Alcohol Use Disorder, in sustained remission in a controlled environment

Index Offences:

11The circumstances giving rise to the Index Offences are extracted from last year's Board Reasons, as follows:

"On Wednesday, November 27, 2002 at approximately 1:05 pm, the complainant was walking northbound on the sidewalk in front of Jumbo Video located at Dundurn Plaza, Hamilton. The complainant and his wife were confronted by a male party who exited the Jumbo Video and bumped into the complainant. The complainant asked him what he was doing, then the accused attacked him, scratching his face and knocking him to the ground. The accused continued the assault by scratching at his face again while the complainant was on the ground until the accused was pulled off the complainant by some passersby. The complainant suffered minor scratches to his face, and broken glasses, no medical attention required.

The accused, known to police as Whitehouse, Robert DOB 1951-12-18 was found to be on a 2-year Probation Order, dated December 4, 2001. Contained in the Probation Order are conditions not to attend at Dundurn Plaza and to keep the peace and be of good behaviour."

12Mr. Whitehouse's history and background are outlined in the Hospital Report, and they are accurately summarized in last year's Reasons:

"It is reported that Mr. Whitehouse was a "promising young university student" (attaining two years credit in arts) from a respectable family. Due to his severe and persistent schizophrenia, he displayed chronic psychotic symptoms and chronic alcohol abuse, with resultant residence at Mathias Place, an apartment facility in Hamilton for the indigent mentally ill. He lost his apartment due to his detention following the index offences. He had become alienated from his family, long-time residents of Hamilton, having assaulted and threatened them repeatedly in the past. Dr. Padgett, who conducted his court-ordered assessments in 2003, summed up the situation as follows:

"Mr. Whitehouse's history is remarkable for the length and severity of his illness – Schizophrenia – which has led to a significant decline in both his socio-economic status and his cognitive abilities. Substance abuse, primarily alcohol, and legal offences have complicated his course."

Dr. Padgett reported that Mr. Whitehouse had resided at Mathias Place since July 2001, prior to which he had no fixed address. He has tried the HOMES program that operated Mathias Place; however, he had extensively damaged his unit, smeared feces in it, given away most of the furniture (as he did with his clothing, including in winter) and caused flooding in the upper floors of the complex. He had also defecated in the backyard. It was reported that when admonished about his behaviour, Mr. Whitehouse would become quite hostile, especially when drinking alcohol – which he reportedly did almost every day.

Mr. Whitehouse accumulated approximately 10 criminal charges between 1974 (when he would have been approximately 23 years old) and 1980. These charges were all either withdrawn or dismissed, for reasons not apparent from the Hospital Report. His record of convictions then spans some 22 years from late 1980 to November of 2002 (just weeks before the index offences).

Mr. Whitehouse's first recorded psychiatric admission was in 1971, when he was approximately 20 years old. The diagnosis was paranoid schizophrenia. He had repeated hospitalizations from 1971 to 1979, and some 30 psychiatric admissions in all up to 2002, when he was brought by police to McMaster Medical Centre after damaging his residence at Mathias Place and threatening both staff and co-residents. Despite numerous admissions to hospital, Mr. Whitehouse never consented to continued outpatient care, so there was little if any follow up treatment and Mr. Whitehouse did not take his prescribed medication. He was for the most part actively psychotic when in the community (Hospital Report, p. 14).

Approximately a year after arriving at the Hospital, Mr. Whitehouse was discharged into the community under the Community Schizophrenia Service on August 23, 2004. On June 22, 2005, the Board ordered a Conditional Discharge, and Mr. Whitehouse has remained on a Conditional Discharge ever since. Aside from one brief overnight stay occasioned when he was intoxicated, he has not required readmission.

In January of 2013, Mr. Whitehouse moved into an independent apartment at the Indwell Perkins Centre where he continues to live. In February of 2016, the Review Board included a provision in his Disposition permitting Mr. Whitehouse to consume alcohol but restricted his consumption to a maximum of one beer per day with a total not to exceed two beers per week.

Mr. Whitehouse has, for many years, been adamant that he has no mental illness and therefore does not need medication. As was stated in a note for his 2018 Board hearing, "He cannot see the correlation between medication adherence and his current stability" (Hospital Report, p. 37). In more recent years, he has expressed that his schizophrenia should be gone because he has been taking medication for so long. He does not wish to stop his medication while still under ORB supervision because he fears a more restrictive Disposition would be made if he stopped his injections.

The treatment team has, in recent years, made attempts to connect Mr. Whitehouse to nonforensic follow-up services. He was referred to the Schizophrenia Outpatient Clinic in 2017 and stated that if accepted into their program he would continue receiving his medication from them; however, he was ambivalent about staying adherent if he were to receive and Absolute Discharge. Unfortunately, he was not accepted into their service as it was felt that Mr. Whitehouse would not attend any programs or activities and had no goals.

Mr. Whitehouse was also referred to Hamilton Program for Schizophrenia (HPS), however was declined due to his age. It was stated that over the next reporting year (2019), Mr. Whitehouse would be referred to the Geriatric Outreach Program, for community follow up. In 2020, it was reported that a referral was made to "Connect", a centralized intake service for St. Joseph's Mental Health and Addiction outpatient programs.

In 2020, as Mr. Whitehouse had not been accepted into any other programs, a referral was made to "IntAc" which resulted in his acceptance into the Hamilton Mental Health Outreach Program. He was on their waitlist for intensive case management and was expected to be picked up in early 2021. He began working weekly with a case manager from Mental Health Outreach and as reported for the 2022 annual ORB review, had followed up with them monthly since February 2021. This support was provided through the 2022 reporting year; however, the program was discontinued at some point prior to the completion of the current Hospital Report.

At his request, on May 15, 2017, Mr. Whitehouse's long-acting monthly injection was changed to Invega TRINZA, 350 mgs every three months. He reported being pleased with the frequency of this administration and his mental status remained stable. Mr. Whitehouse denied perceptual disturbances and there were no observed symptoms of his illness. However, in a pre-Board meeting in November of 2018, Mr. Whitehouse reported ongoing issues of impotence since this change was made. He had not previously reported this as he was reluctant to go back to monthly injections. Nevertheless, this continues to be his antipsychotic medication, in the same dosage, as of the date of the hearing. It is administered during his regular appointments at the Forensic Outpatient Clinic.

Mr. Whitehouse takes anti-craving medication to help maintain his low alcohol intake and reports his cravings as 1 out of 10, 10 being an intense craving. He takes his oral medication on his own. A breathalyzer is used at each visit to support compliance with limited beer consumption. All urine drug screens have returned negative for illicit substances over the past year, and this has been the case for many years now.

An incident of concern in relation to Mr. Whitehouse's use of alcohol occurred in May of 2023. A forensic case manager was at the Perkins Centre, where Mr. Whitehouse lives, visiting another client. The case manager witnessed Mr. Whitehouse in the elevator, carrying a "tallboy" can of beer. He was swaying in the elevator and appeared intoxicated. He denied being intoxicated and was adamant that he drinks one to two times per week as per his Disposition. He denied drinking to the point of intoxication and denied cravings or withdrawal symptoms when not drinking. His reporting with his forensic case manager was increased to weekly reporting after this incident."

Position of the Parties:

13At the commencement of the hearing, counsel for the Hospital submitted that Mr. Whitehouse remains a significant threat to the safety of the public and recommended that there be no change to his current Disposition. Counsel for the Attorney General supported the Hospital's position. Counsel for Mr. Whitehouse stated that he was requesting an Absolute Discharge and, in the alternative, requested a Conditional Discharge containing the same terms and conditions as currently exist. All parties maintained their respective positions in closing submissions.

Evidence at the Hearing:

14The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Naidoo. Dr. Naidoo is Mr. Whitehouse's treating psychiatrist and co-authored the Hospital Report. He testified as follows:

a) He has read, and adopted, the contents of the Hospital Report.

b) Mr. Whitehouse continues to live in the community and reports weekly to the Forensic Outpatient Program. He did not require any readmissions in this past reporting period.

c) As set out in the Hospital Report, Mr. Whitehouse continues to allow individuals into his apartment who have been barred from the building. As a result of these breaches, Mr. Whitehouse could lose his housing. Recently, at least one of these individuals had declined to leave the residence until the building supervisor intervened.

d) There have been no formal notifications, nor steps taken, by his current residence advising him that he is at risk of being evicted; however, eviction could become a concern, if these visits continue.

e) On several occasions, Mr. Whitehouse has breached the paragraph in his Disposition concerning the amount of alcohol he is allowed to consume. In each of these incidences, Mr. Whitehouse self-reported this breach. Mr. Whitehouse could be classified as, "honest to a fault."

f) Mr. Whitehouse did use cannabis once during the reporting period, but he did so because of he misunderstood what was permitted in his Disposition. He has not used cannabis since.

g) If Mr. Whitehouse were given an Absolute Discharge, he would discontinue his use of his psychiatric medication and use substances. Either behaviour would cause him to engage in numerous violent, criminal acts, rendering him a significant threat to public safety.

h) Mr. Whitehouse has a long-standing history of limited insight into his major mental illness, his need for treatment and the importance of abstaining from illicit substances. There is little likelihood that his insight will improve in the future.

i) Mr. Whitehouse has no professional supports in the community, outside of the Forensic Outpatient Team.

j) While the treatment team has some concerns about Mr. Whitehouse increasing his alcohol consumption, they feel that this issue is adequately being addressed with the current monitoring in place.

k) There has been no referral to the Geriatric Outreach Program for community follow-up, as referred to in paragraph 21 of last year's Reasons for Disposition. The treatment team will look into this matter during the coming reporting year.

l) Mr. Whitehouse does not have a major neurocognitive disorder; he is able to independently manage his daily activities, as well as daily instrumental activities, including shopping and entering the community, without any impairment. Accordingly, Mr. Whitehouse's current residence is appropriate for him.

m) The treatment team will continue to encourage Mr. Whitehouse to wear his glasses and to have his hearing tested.

15In response to questions from counsel for the Attorney General, Dr. Naidoo testified:

a) He agreed with the following paragraph, from page 64 of the Hospital Report:

"Considering future problems with risk management over the next twelve months, if Mr. Whitehouse continues to be conditionally discharged, is anticipated that his future related risk factors would continue to well managed by the ORB disposition and the professional supports that flow from it. However, if granted an absolute discharge, due largely to his limited insight, Mr. Whitehouse would likely fall away from professional supports and discontinue his psychiatric treatment. He would also likely increase his alcohol consumptions. A psychiatric decompensation would certainly follow increasing his risk for harm to others, but also to himself by jeopardizing relationships with his personal supports and housing. Although he does not recognize it, sources of stress are largely mitigated by the supports in place for Mr. Whitehouse, and when they do emerge, he is reliant on those same supports to help him manage. The availability and access to these supports would be lost or at least more difficult to secure based on his current plan for an absolute discharge (i.e. no mental health supports)."

b) Mr. Whitehouse has had a very good year, largely because of the supports he receives from the Forensic Outpatient Team.

16In response to questions from counsel for Mr. Whitehouse, Dr. Naidoo testified:

a) For Mr. Whitehouse, there is no alternative to the forensic system to protect the safety of the public. He would not qualify for a Community Treatment Order, as he does not meet the criteria for same.

b) Mr. Whitehouse has a lengthy history of mental instability, substance use, diverse criminal activity and housing instability.

c) Mr. Whitehouse would not follow up with support in the community, should he be granted an Absolute Discharge.

d) Mr. Whitehouse has done quite well while under the auspices of the Board. Conversely, he did not show an ability to live in the community without risking public safety while under the civil system, in the past.

17In response to questions from the panel, Dr. Naidoo testified :

a) The following paragraphs from last year's Reasons for Disposition are still true today:

"Dr. Naidoo confirmed that in his opinion, Mr. Whitehouse continues to meet the threshold for a significant threat to the safety of the public. Dr. Naidoo referred particularly to Mr. Whitehouse's very limited insight, his significant history of substance abuse, and the frequent and diverse nature of his past criminality. Absent Mr. Whitehouse's insight into his condition and absent a Disposition of the Board, Dr. Naidoo believed that it is "highly likely" that Mr. Whitehouse would discontinue his medication and increase his use of intoxicants and return to experiencing psychotic symptoms. He would also lose the protective factors provided by his social supports and his residence. He agreed with the suggestion of counsel for the Attorney General that Mr. Whitehouse would likely experience mood lability leading to a return to violence.

Dr. Naidoo agreed with the suggestion of counsel for the Attorney General that limited insight is the most common risk factor for noncompliance with treatment, with substance abuse being another major factor.

A member of the panel sought Dr. Naidoo's assistance as to the nature of the harm that Mr. Whitehouse could cause, given his age and mobility issues (particularly his recent injury from the motor vehicle accident). In response, Dr. Naidoo explained that having recovered from his injury, Mr. Whitehouse remains an able-bodied individual. He can strike out at people who are in close proximity and the magnitude of harm can be quite serious if he were to do so. He pointed out that older individuals are still susceptible to causing injuries that can be life-threatening.

In response to a question from Mr. Whitehouse's counsel, Dr. Naidoo unequivocally stated that the civil mental health system would not help ensure Mr. Whitehouse's medication compliance. He explained that Mr. Whitehouse is capable of consenting to psychiatric treatment and would not qualify for a Community Treatment Order.

Asked by a panel member why Mr. Whitehouse could not be monitored by a civil team, such as an ACT (Assertive Community Treatment) team, Dr. Naidoo explained that for such monitoring to be effective, Mr. Whitehouse would first need to be committed to remaining under treatment, which he is not. Dr. Naidoo stressed that in this case, the structure provided by the Disposition is quite significant: for Mr. Whitehouse, the knowledge that something is mandated (even though his medication is not) has a major impact upon him."

b) He agreed with the conclusions set out in paragraphs 43 and 46 of last year's Reasons for Disposition:

"The panel accepts the opinion evidence of Dr. Naidoo as supported by the psychological risk assessments and other information in the Hospital Report and finds that Mr. Whitehouse represents a significant threat to the safety of the public. On the evidence, it is highly likely that without the oversight of the ORB, Mr. Whitehouse would discontinue his medication, withdraw from treatment supports, and increase his alcohol consumption. This would prompt a return to psychotic and delusional symptoms of his illness, with attendant loss of significant social supports including, potentially, his housing.

Dr. Sheridan, in his 2021 risk assessment that Dr. Naidoo accepted as still valid, stated that based upon Mr. Whitehouse's history, the degree of harm caused is likely to be of low lethality. However, Dr. Sheridan also cautioned that should his mental state deteriorate significantly, his behaviour could place people at greater physical risk than in the past. The panel accepts this opinion and finds that it is not speculative. Rather, it is a potential outcome arising from the nature of physical assault. The index offence itself speaks to this. Mr. Whitehouse did not merely scratch the victim in the face; he knocked him to the ground. According to Mr. Whitehouse's own self-report, he "tackled" the victim. The panel is satisfied that if Mr. Whitehouse were to commit an assault similar in nature while suffering from psychosis, the risk of such an assault causing serious physical harm is substantial."

18No other evidence was called.

Analysis and Conclusions:

19Having heard and considered the entirety of the evidence, as well as the submissions of the parties, the Board has no difficulty in finding that Mr. Whitehouse remains a significant threat to the safety of the public.

20In Winko, the Supreme Court outlined that, in coming to the conclusion on the issue of significant risk, a Review Board should closely examine a range of evidence, including: the circumstances of the original offence; the past and expected course of the accused's treatment; the present state of the NCR accused's medical condition; the NCR accused's own plans for the future; the support existing for the NCR accused in the community; and most importantly, the recommendations provided by experts who examined the NCR accused. In coming to our conclusion in this matter, the Board relies on the uncontroverted expert evidence of Dr. Naidoo, in addition to the documentary evidence before us.

21Mr. Whitehouse's present lack of insight is a significant barrier to his desired Absolute Discharge. He lacks awareness and understanding of his need for continued medication and follow-up care. Non-adherent to his medication would result in destabilization of his mental state, rendering him a significant threat to public safety.

22Mr. Whitehouse has no professional supports outside of the Forensic Outpatient Team. A lack of follow-up care, combined with his likely substance abuse and probable non-adherence to his medication regimen, pose a real risk to the safety of the public.

23The Board also relies upon Dr. Naidoo's evidence (see paragraphs 17 (a) and (b), above) to conclude that the continuation of the existing Conditional Discharge Order is the necessary and appropriate Disposition in the circumstances.

24Finally, the Board agrees with the conclusions of Hospital Report and the doctor's evidence that, without a Disposition, significant threat to public safety would arise from Mr. Whitehouse's untreated psychosis and substance abuse. Absent a Disposition, Mr. Whitehouse would be highly likely to engage in violence towards those in his proximity, whether or not they are known to him.

25In consideration of all the evidence, submissions of the parties and criteria set forth in s. 672.54, the paramount consideration being the safety of the public, in addition to the mental condition of Mr. Whitehouse, his reintegration into society and his other needs, the necessary and appropriate Disposition is to continue with his Conditional Discharge Order.