Ontario Review Board
Re: K. (K. D.)
(DOB: 26.03.04)
ORB File No: 8699
Hearing held on: Wednesday January 29, 2025
Place of Hearing: North Bay Regional Health Centre
Pursuant to: Sections 672.48(1), 672.81(1) & 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Mr. R. Bigelow
Members: Dr. R. Kunjukrishnan
Dr. G. Kerry
Mr. E. Siebenmorgen
Mr. A. Bouvier
Parties Appearing:
Accused: K. (K. D.)
Counsel: Mr. T. Whillier
The Person in Charge Counsel: Mr. P. Trenker
Attorney-General of Ontario: Counsel: Ms. M. Mazurski
REASONS FOR DECISION AND DISPOSITION (Dated February 18, 2025)
Introduction
On September 23, 2021, Mr. K. (K. D.) was found unfit to stand trial on account of mental disorder on charges of resisting peace officer (2), aggravated assault, assault with a weapon, assaulting a peace officer, failure to comply with a release order, and uttering a threat to cause death or bodily harm, all contrary to the Criminal Code. He is currently subject to a disposition of the Ontario Review Board (the Board) dated November 17, 2023, ordering his detention at the North Bay Regional Health Center – North Bay Site, Forensic Programs (the Hospital) with privileges up to and including residence in the community within the catchment area of the Hospital in accommodation approved by the person in charge.
Mr. K. (K. D.) was discharged into the community to reside in a group home in May 2024. However, he was readmitted to hospital on October 19, 2024, following an incident in which he punched a co-resident several times in the arm. He remained in the Hospital as of the date of the hearing.[1]
On Wednesday, January 29, 2025, the Board convened a hearing to determine whether the initial and continuing restriction of Mr. K. (K. D.)’s liberty as a result of his return to hospital was necessary and appropriate pursuant to section 672.81(2.1) of the Criminal Code.
The hearing was also the annual review of his fitness to stand trial and his disposition pursuant to sections 672.48(1) and 672.81(1).
Mr. K. (K. D.) was present at the hearing and represented by counsel, Mr. Whillier, by video. Also present at the hearing were Mr. K. (K. D.)’s mother (by audio), grandfather (by video), Ms. Diana Pyne, a Gladue caseworker (by video) and Ms. Honarine Scott, the author of the Gladue report (by video).
Initial Positions of the Parties
At the commencement of the hearing the parties were requested to provide their initial without prejudice positions with respect to the issues before the Board. Counsel for the Hospital advised that the position of the Hospital was that Mr. K. (K. D.) continued to be unfit to stand trial, that the prerequisites for a recommendation of a stay of proceedings had not been met, and that the necessary and appropriate disposition was a continuation of the current disposition without change. Counsel also took the position that the increased restrictions on Mr. K. (K. D.)’s liberty occasioned by his hospital readmission were warranted and remained so until the date of the hearing.
Counsel for the Attorney General supported the Hospital recommendation. Counsel for Mr. K. (K. D.) advised that he had been unable to obtain instructions from his client with respect to any of the issues before the panel and therefore could not take any position.
Evidence at the hearing
- The evidence at the hearing consisted of a Hospital Report dated December 9, 2024 (Exhibit 1) a Gladue Report (Exhibit 2), a document entitled Gladue Recommendations (Exhibit 3) and the oral evidence of Dr. Munro, Mr. K. (K. D.)’s treating psychiatrist.
Findings:
- For the Reasons that follow, the Board finds that Mr. K. (K. D.) continues to be unfit to stand trial, that the prerequisites for a recommendation of a stay have not been met and that the necessary and appropriate disposition is a continuation of the current detention order without change. The Board further finds that the readmission of Mr. K. (K. D.) to the Hospital on October 19, 2024, constituted a significant increase to the restrictions on his liberty and that this increased liberty restriction was warranted, necessary and appropriate. His continued hospitalization to the date of the hearing was also warranted, necessary and appropriate.
Index Offences:
- The circumstances surrounding the index offences taken from last year’s reasons for disposition are as follows:
The allegations giving rise to the index offences involve 3 separate incidents all occurring in March 2021.
Incident 1- On March 5, 2021, the complainant’s granddaughter, Mr. K. (K. D.)’s younger sister, came to her residence and told her that Mr. K. (K. D.) had started a fire in his bedroom at their home. The complainant went to that home and found a burnt blanket outside on the stairs. The complainant went into Mr. K. (K. D.)’s bedroom and sat next to him on the bed. He put a cigarette out on his tongue, and she told them not to do that. He then grabbed a glass ashtray and struck her on her head a couple of times, and she had to hold him down to get him to stop. She then managed to get away in the police were called.
Incident 2 - On March 5, 2021, at approximately 3 PM, Mr. K. (K. D.) asked, his uncle to give him some money and when he refused, Mr. K. (K. D.) became angry, grabbed a dull knife and stabbed him on the nose and left side of the back area. He also punched the complainant three times in the face before fleeing the residence. Police were called and located Mr. K. (K. D.). As they approached, he put up his hands as if to engage in a fight with the police. However, he then began running and police followed until he fell on the ground. When the police attempted to handcuff him, he resisted by holding his hands in front of his chest. He was arrested and taken to the police station where he threatened the three officers involved in his arrest.
Incident 3 - after his arrest with respect to incident 2, Mr. K. (K. D.) was released on bail with a condition that he does not attend his uncle’s residence. On March 9, 2021, after receiving the complaint with respect to incident one, the police attempted to locate Mr. K. (K. D.). He was found in his uncle’s residence having entered without his uncle’s knowledge. When the police attempted to arrest him, he began to fight with them, and the police were required to use pepper spray to control him. Mr. K. (K. D.) wiped his face with his hand and then licked the pepper spray from his hand.”
Circumstances Surrounding the Restriction of Liberty
- Mr. K. (K. D.) was discharged from hospital to a group home on May 27, 2024. He was readmitted to hospital on October 19, 2024, and has remained in hospital up to the date of the hearing. The Hospital Report summarizes the circumstances surrounding his readmission to hospital as follows:
October 19, 2024 – Forensic outreach on call services were contacted by staff at the Lorrain Valley group home where Mr. K. (K. D.) resides, to advise that he was involved in an altercation with a co-resident. Both the co-resident and Mr. K. (K. D.) were seated in the back of a minivan on an outing to Tim Horton’s. Mr. K. (K. D.) was heard telling the co-resident to stop repeatedly, and said the police needed to be called. The co-resident was allegedly touching Mr. K. (K. D.). Mr. K. (K. D.) reportedly then punched the co-resident several times in the arm, resulting in bruising. Outreach services were contacted, and arrangements were made to have Mr. K. (K. D.) transported to this forensic program by Ontario Provincial Police (OPP) officers. When Mr. K. (K. D.)’s assigned social worker spoke with the manager of the group home a few days following his admission, it was noted that staff had observed a change in Mr. K. (K. D.)’s presentation approximately two days prior to the incident. They attributed this change to the addition of new staff, as well as the addition of a new resident to the home.
- Subsequent to Mr. K. (K. D.)’s readmission to hospital, the group home where he had been residing has advised the Hospital that they are no longer able to accept him as they believe that they no longer are able to meet his needs. However, the manager of that residence has made efforts to find a more appropriate residence for him.
Background Information Regarding the Accused:
Mr. K. (K. D.) is currently 20 years of age, single with no dependents and is a middle child with an older sister and a younger sister. He is a member of the Attawapiskat First Nation and prior to being found unfit to stand trial he resided with family in Attawapiskat, an isolated community in Northern Ontario on the shores of James Bay. He comes from a Cree speaking family but has limited ability to communicate in either Cree or English. Early in his schooling years his mother noticed that he needed extra help in school which he received although his mother felt that assistance was insufficient for his needs.
However, despite his limitations, his mother notes that she was amazed by his ability to understand and use a computer and that he would teach her how to use it as well.
By the time Mr. K. (K. D.) was 16 years old his mother and family were struggling with his behaviour, he was abusing substances and he ceased to attend school in grade 9.
Legal History:
- Prior to the index offences, Mr. K. (K. D.) had no criminal record. However, in January 2024 he was charged with assault following an incident at a group home where he resided. That charge was stayed in May 2024.
Psychiatric History
- The Hospital report summarizes Mr. K. (K. D.)’s psychiatric history prior to the finding of unfitness as follows:
Kariya was noted to have undertaken numerous admissions to hospital as a consequence of suicidal ideation and behavioural dyscontrol. In an admission from May 18, 2021, it was noted that he was placed on the adult side of the psychiatric unit as his behaviours were considered “inappropriate and risky for the pediatric unit”. He has been admitted to various locations including Sudbury, North Bay, and Timmins.
Kariya reportedly experienced a deterioration in his mental health status that involved “an episode of experiencing voices, flatness of affect, bizarre behaviours, latency of expression, and some abnormal movements such as unusual blinking, teeth grinding and such.” This was noted to have occurred in 2011; however, a specific timeline thereafter was not provided. It is also noted that he may demonstrate features characteristic of individuals on the autism spectrum, and this includes “interest in touching things for example when out for a walk” but there were no other specific repetitive behaviours or focus sets of interests that were consistent with an underlying diagnosis of autism spectrum disorder.
It is noted that he was seen by Dr. Richard Painter, a child psychiatrist at North Bay Regional Health Centre on May 16, 2021 and the diagnoses offered therein were “intellectual disability, cannabis use disorder and rule out unspecified psychotic disorder”. He has been placed on various medications in order to assist him in the treatment of underlying psychotic symptoms as well as symptoms associated with aggression.
Current Diagnosis
- Mr. K. (K. D.)’s current diagnoses are:
Schizophrenia
Neurodevelopmental Disorder, Fetal Alcohol Spectrum Disorder
Intellectual Disability
Cannabis Use Disorder, in remission in a controlled environment.
Gladue Report and Recommendations
The author of the Gladue Report spoke to the Manager for Temiskaming Shores Community Living, the organization operating the group home where Mr. K. (K. D.) had been residing prior to his readmission to hospital. The Manager advised that although the organization was no longer able to accept him at that residence, they had identified a group home in Englehart Ontario which would be better suited to his needs. That residence is in the process of securing funds to renovate the bottom level of the residence which would provide him with his own apartment while still having access to full-time staffing support.
The author of the report also discussed the potential move to Englehart with Mr. K. (K. D.)’s mother and grandfather, both of whom indicated that they would not oppose that move and noted that the proximity to Timmins Ontario would make family visits easier.
The author of the report also noted that Mr. K. (K. D.)’s mother is considering a move to the North Bay area to pursue educational opportunities and discussed with the Manager of Temiskaming Shores opportunities for residences in North Bay for Mr. K. (K. D.) and she indicated that a transfer to North Bay Community Living could be arranged subject to acceptance by them.
Evidence of Dr. Munro
Dr. Munro summarized the circumstances surrounding Mr. K. (K. D.)’s readmission to hospital and noted that the individual who he punched was a new resident at the home and was quite intrusive. She also noted that Mr. K. (K. D.) is quite sensitive to intrusions into his personal space and can react aggressively when that occurs. As this was the second such aggressive outburst in the reporting year the Hospital determined that it was necessary to readmit him in order to develop a better behavioural plan to reduce the risk of further aggressive outbursts. The Hospital did not intend for him to lose his residence, however that did occur. She noted that the Hospital behavioural therapist was working on a revised behavioural plan.
Dr. Munro stated that the Gladue Report and its recommendations were extremely helpful in terms of planning for Mr. K. (K. D.)’s return to the community. She also noted that Englehart Ontario was within the Hospital’s catchment area.
Dr. Munro indicated that her opinion that Mr. K. (K. D.) continued to represent a significant threat was based on a number of factors including his lack of insight into his illness, as well as the impact of substances on his mental health. When unwell he exhibits bizarre and aggressive behaviours putting the public at risk.
Dr. Munro also indicated that in her opinion, Mr. K. (K. D.) continued to be unfit to stand trial. Despite coaching he was still unable to answer any of the questions asked with respect to his charges or the court process.
In response to questions from panel members, Dr. Munro indicated that the symptoms of his schizophrenia were controlled although he still experiences some perceptual disturbances and that the waiting list for group homes in the North Bay area was quite long.
In response to further questions from panel members Dr. Munro indicated that she had last formally assessed Mr. K. (K. D.)’s fitness several months prior to the hearing but that neither in her contacts with him or those of staff was there any evidence of a change in his fitness. She agreed with a suggestion from a panel member that given Mr. K. (K. D.)’s ability to work with computers, it may be worthwhile to look into options for computer-assisted coaching with respect to fitness related issues.
Analysis and Conclusion: Restriction of Liberty
- The Board finds both the initial and continuing restriction of Mr. K. (K. D.)’s liberty to be necessary and appropriate. The incident giving rise to the readmission was the second incident of assaultive behaviour within the reporting year. The prior incident resulted in the other individual being taken to hospital with a suspected concussion. As a result of the second incident, the group home is no longer willing to accept him as a resident and the Hospital is working on a behavioural plan which will hopefully address his risk. Until such time as an appropriate residence for Mr. K. (K. D.) is found and a new behavioural plan is organized, hospitalization is necessary.
Analysis and Conclusion: Fitness
- The Board finds that the evidence amply supports a finding that Mr. K. (K. D.) continues to be unfit to stand trial. He is unable to answer basic questions with respect to his charges and court processes due to his Neurodevelopmental Disorder and Intellectual Disability and is unable to instruct counsel.
Analysis and Conclusion: Recommendation for a Stay
- The Criminal Code provides for two prerequisites to a recommendation for a stay of proceedings. The accused must be unfit and not likely to ever become fit, and the accused must not pose a significant threat to the safety of the public. Although the evidence supports a finding that Mr. K. (K. D.) is likely permanently unfit (subject to the potential for further fitness coaching using computer technology), the evidence does establish that he continues to be a significant threat to the safety of the public. He suffers from a major mental illness, schizophrenia, a neurodevelopmental disorder and intellectual disability as well as a cannabis abuse disorder. He displays little insight into his illness or the impact of substances on his mental health and has a significant history of acting out aggressively. Absent supervision of the Board, it is highly likely that he would fail to follow through with recommended treatment, return to the use of substances and act out aggressively causing physical and/or psychological harm to members of the public. It is noted that even with adherence to his prescribed medication, there have been incidents of assaultive behaviour to co-residents of his group home.
Analysis and Conclusion: Necessary and Appropriate Disposition:
The Board finds that the evidence amply supports a finding that the necessary and appropriate disposition which is also the least onerous and least restrictive is a continuation of the current detention order without change. There is no air of reality to consideration of a conditional discharge. Mr. K. (K. D.) currently has no residence in the community and requires a supervised residence in order to manage risk. Accordingly, the Hospital requires the authority to approve his accommodation in order to manage that risk.
The Board notes the efforts being made by the Hospital to find an appropriate residence for Mr. K. (K. D.) as well as the extremely helpful input from the Gladue Report.
DATED this 18th day of February 2025, at the City of Toronto, in the Toronto Region.
Robert Bigelow
Alternate Chairperson
____________________________
Office of the Registrar
Ontario Review Board
1Although the panel did not have before it a Restriction of Liberty Notice required to be provided pursuant to section 672.56(2) of the Criminal Code, the Hospital Report notes that such a notice was submitted to the Board on October 28, 2024.