Re Kyle J. Windle, 2025 CanLII 13612

Re: Kyle J. Windle

DOB: 05.11.86

ORB File No: 4521

Hearing held on: Thursday, January 9, 2025

Place of hearing: Royal Ottawa Mental Health Center

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

Before:

Alternate Chairperson: Ms. M. Labrosse

Members: Dr. G. Glancy Dr. S. Lessard Mr. D. D’Intino Mr. M. Hajek

Parties Appearing:

Counsel: Mr. M. Davies (appearing for accused)

Person in Charge of the Hospital: Representative: Dr. J. Gojer

Attorney General of Ontario: Counsel: Ms. M. Dufort

REASONS FOR DISPOSITION

(Dated January 22, 2025)

Introduction

1On July 12, 2006, Mr. Kyle Windle was found not criminally responsible on account of mental disorder on the following charges:

• Assault with a weapon (x2)
• Assault
• Possession of a weapon (x2)
• Robbery
• Aggravated assault
• Fail to comply with an undertaking (x2)
• Theft under $5000,

all contrary to the Criminal Code of Canada (The Code).

2Mr. Windle is subject to a Disposition of the Ontario Review Board dated January 12, 2024, detaining him at the Secure Forensic Unit of the Royal Ottawa Mental Health Centre (ROMHC) with the following privileges and conditions:

(a) to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes; (b) hospital and grounds privileges, indirectly supervised; (c) to enter the community of Ottawa, indirectly supervised; (d) travel passes for up to 14 days, upon first obtaining approval of his itinerary by the person in charge of Royal Ottawa Mental Health Centre, or his or her designate, to travel within Canada; (e) to attend a residential treatment facility, as approved by the person in charge, for a period of up to six months; and (f) to live in the community in accommodation approved by the person in charge.

3. AND IT IS FURTHER ORDERED that the person in charge of the Royal Ottawa Mental Health Centre:

(a) notify the local police at such times as he or she exercises his or her discretion to permit the accused to enter the community and to advise the local police of the terms and conditions under which he or she permitted the accused to do so pursuant to term 2 of this Disposition; and (b) require the accused to submit, on a random basis, samples of his urine and/or breath for the purpose of analyzing whether the accused has ingested alcohol, drugs or any other intoxicant.

4. AND IT IS FURTHER ORDERED that the accused, Kyle Windle:

(a) abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant; (b) submit samples of his urine and/or breath to the person in charge of the Royal Ottawa Mental Health Centre or his or her designate, for the purpose of analyzing whether the accused has ingested alcohol, drugs or any other intoxicant; (c) refrain from having in his possession any firearm, ammunition or other offensive weapon, or (d) being in the company of any person possessing a firearm other than a peace officer; (e) refrain from contact or communication, direct or indirect with Kirby Lin, Cory Hume, Scott Whitaker and Jeremy Fetterfield; and (f) when living in the community, report to the person in charge of the Royal Ottawa Mental Health Centre or his or her designate, as directed, but not less than once per month.

3On January 9, 2025, the Board convened an Annual Hearing to determine whether Mr. Windle remained a significant threat to the safety of the public and if so, to determine the necessary and appropriate Disposition.

4Mr. Windle was present at his annual hearing, and was represented by his counsel, Mr. Michael Davies.

Current Psychiatric Diagnoses:

5Schizoaffective Disorder, most recent episode manic.

6Polysubstance Abuse Disorder – cannabis and cocaine, in remission.

Index Offences:

7The details of the index offences are extracted from the previous Disposition, which are as follows:

On May 3, 2006, the accused and several other individuals attended a bar in Hull on an organized bus trip. After the bus returned the group to Barrhaven, three individuals who were not associates of the accused, stopped while one had to urinate. The individual by the name of Cory Hume who had separated from his friends, walked a little way from his friends when he was hit by the accused on the head, shoulders, arms, and hips with an 18-inch steel rod which was taped at one end to provide a handle. The accused was heard to shout, “I’m going to get you mother fucker” and “fuck you.” The victim ran from the accused, holding his head and was calling to his friends for assistance. The other two friends by the names of Scott Whitaker and Jeremy Fetterfield saw the accused with the weapon and gave chase. They ran after him and at this time the victim was on the phone with 911 and relaying the assault when an ambulance happened to drive by, and the victim was able to flag down the ambulance for assistance. After a short chase on foot, Mr. Whitaker caught up with the accused and demanded that he drop the steel bar. The accused complied, approached Mr. Whitaker, and then threw a punch at him and the two engaged in a physical altercation until the accused was restrained and police arrived. The accused was arrested and then released.

On May 8, 2006, at 22:30 hrs, an individual by the name of Kirby Lin was walking through a park in Barrhaven when he was approached by a man matching the description of the accused. The individual introduced himself as “Kyle” and began to ask Mr. Lin many questions of a personal nature. The accused then asked Mr. Lin for his shoes. The victim refused to give them up and turned away form the accused to walk towards his home. The accused then pulled out a steel pipe and struck Mr. Lin on the back of his head. The victim then took out his cell phone and called 911. The accused then pulled the victim to the ground and continued to beat him with the steel bar and the victim was said to have been struck at least seven times on the back and once again on the head. Mr. Lin suffered a on-inch gash at the back of his head and another on his forehead, as well as several bruises on his back. The victim pleaded for the accused to stop, and the accused then stated that he liked the victim and would return the shoes the next day. The victim was pinned on the ground by Mr. Windle and was forced to give up his shoes. The victim surrendered the shoes and was hit again with the steel pipe. The accused ran away.

On May 10, 2006, police apparently attended at Mr. Windle’s residence to question his parents about the second assault. Thereafter Mr. Windle’s parents were able to convince him to attend at the Ottawa Civic Hospital where he was admitted later that same day on a Form 1. He was noted to be irritable, withdrawn, labile and suspicious and admitted to having auditory hallucinations. He was extremely vague about the assault that the police had questioned his parents about but admitted to using cannabis on a regular basis. Once the Form 1 expired the attending physician did not believe on a regular basis. Once the Form 1 expired the attending physician did not believe that he met the criteria to be held involuntarily so that no Form 3 was ever issued. On May 13, 2006, Mr. Windle signed out of hospital against medical advice. He was given a prescription for Risperidone which he did not take.

Immediately after his discharge from the Ottawa Civic Hospital on May 13th, 2006, Mr. Windle attended at the Rideau Centre and while in the LCBO selected and concealed a bottle of Smirnoff Vodka and walked out of the store without attempting to pay for the bottle. He was stopped by staff and a minor scuffle ensued, but he was restrained, the police were called, and Mr. Windle was placed under arrest.

Without Prejudice Position of the Parties:

8At the commencement of the hearing, the parties presented a joint submission, based on the hospital’s recommendation: the continuation of the existing Detention Order Disposition with community living privileges in an accommodation approved by the Hospital.

9The parties agreed that this was the necessary and appropriate Disposition in consideration of all of the circumstances. Counsel for the accused did not contest the Hospital’s contention that Mr. McMurray remains a significant threat to the safety of the public, as defined in Winko v. British Columbia (Forensic Psychiatric Institute).¹

Evidence at the Hearing:

10The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Gojer.

11Dr. Gojer testified that Mr. Windle has been under the jurisdiction of the Board since 2006. While his index offences were serious, his behaviours have diminished over time in terms of aggression. Mr. Windle has a history of fluctuating compliance with medication, periods of admission to hospital and then moving to different group homes.

12Dr. Gojer testified that in the past reporting year Mr. Windle had overdosed on clozapine and was admitted to the Civic Hospital and while there, he saw an image of a chicken on a truck, which he interpreted as an implication that he was “chicken”, and that he had to jump in front of the truck to “prove” that this was not the case. Fortunately, Mr. Windle was not grievously injured or worse as a result.

13Mr. Windle returned to the ROMHC and was subsequently informed that he lost his placement with Lebreton. Mr. Windle vacillated between wanting and not wanting to continue with clozapine, and finally an agreement was reached where he would take 700mg of clozapine a day and discontinued the long-acting injectable medication. Dr. Gojer opined that this medication regime seems to be working well for Mr. Windle.

14Dr. Gojer further testified that just prior to Christmas, Mr. Windle went off the unit and consumed alcohol – a violation of unit rules – and thus lost his privileges for a month, which have now been reinstated to full level.

15Dr. Gojer described Mr. Windle as “very likable” and “one of our favourite patients” and indicated that as early as next week, he will be submitting an application for a Community Treatment Order (CTO) and if that is successful, consideration can be given a conditional discharge at the next annual hearing.

16In response to questions from Ms. Dufort, Dr. Gojer confirmed that housing options for Mr. Windle are being looked at, with a focus on a stable, long term residential facility which can offered 24 hour supervised accommodation, because Mr. Windle was adequately supported with the 18 hours of supervision offered at Lebreton.

17Dr. Gojer further offered that in order to obtain a CTO Mr. Windle would likely have to consent to receiving a long-acting injectable medication, and discussions will be had with respect to an injectable medication that can be given every 90 days, instead of every 30 days. He is currently capable of consenting to treatment.

18In response to questions from Mr. Davies, Dr. Gojer offered that currently Mr. Windle is compliant with his medication and has been very well supported by his family. The only thing holding Mr. Windle back from being discharged in the community is the lack of suitable housing in place.

19Dr. Gojer further testified that while Mr. Windle is the greatest risk to himself, he remains a significant threat to the safety of the public and this stems mainly from Mr. Windle’s ambivalence to medication from time to time, however, in the opinion of Dr. Gojer his level of risk is diminishing over time.

Analysis and Conclusions

20Having heard and considered the entirety of the evidence as well as the submissions from the parties, the Board accepts the joint submission: Mr. Windle remains a significant threat to the safety of the public. The Board makes this finding based on Dr. Gojer’s testimony and the documentary evidence available at the hearing.

21Mr. Windle suffers from schizoaffective disorder, which has been described in the Hospital Report as “treatment resistant” and has struggled with medication compliance in the past, as well as substance abuse, which when combined, have historically led to rapid decompensation.

22The most recent risk assessment in the Hospital Report concluded that under the current disposition, Mr. Windle poses a high risk of future violence, which would likely increase were he to discontinue his medication and/or return to substance abuse. This is an important consideration given that his index offences were violent in nature and involved attacks on persons that were not known previously to Mr. Windle.

23While at present, Dr. Gojer is of the view that Mr. Windle poses the greatest risk of self-harm, the Board is mindful that acts of self-harm may cause either or both of physical and psychological harm to persons other than the accused who may be present during such incidents.

24The Board is also of the view that at the present time, the provisions of the Mental Health Act would be insufficient to quickly return Mr. Windle to the ROMHC should he experience a decompensation in his mental status.

25In consideration of all the evidence, the submissions of the parties, and the criteria set forth in s. 672.54, the paramount consideration being the safety of the public, in addition to the mental condition of Mr. Windle, his reintegration into society and his other needs, the necessary and appropriate Disposition is continuation of the existing Detention Order Disposition with no changes to the current terms and conditions.

Footnotes

1. 11999 CanLII 694 (SCC), [1999] 2 S.C.R. 625