Evan T. Barry (Re), 2025 CanLII 139630

Re: Evan T. Barry

ORB File No: 8746

Hearing held on: Thursday, November 27, 2025

Place of hearing: Waypoint Centre for Mental Health Care

(Via Zoom Video Conference)

Pursuant to: Sections 672.48(1) and 672.81(2.1) of the Criminal Code

Before:

Alternate Chairperson: Ms. L. Banks

Members: Dr. P. Prendergast

Dr. G. Nexhipi

Ms. M. den Haan

Mr. W. Apted

Parties Appearing:

Accused: Evan T. Barry

Counsel: Ms. C. Francis

The person in charge of hospital: Counsel: Mr. J. Thomson

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

REASONS FOR DECISION

(Dated December 17, 2025)

Introduction

1. On March 11, 2025, Mr. Evan T. Barry was found unfit to stand trial on charges of sexual assault, assault causing bodily harm, assault (x4), and failure to comply with an undertaking, all contrary to the Criminal Code of Canada.

2. Mr. Barry is currently subject to an Amended Disposition of the Ontario Review Board dated August 29, 2025, by which he was ordered to be detained at the High Secure Provincial Forensic Programs of the Waypoint Centre for Mental Health Care (“Waypoint” or the “Hospital”), with privileges up to and including hospital and grounds privileges, beyond the secure perimeter, escorted by staff.

3. On October 27, 2025, the Hospital notified the Ontario Review Board (“ORB” or the “Board”) that Mr. Barry had been secluded on October 17, 2025, and that he remained in seclusion for a period exceeding seven days until October 26, 2025.

4. On Thursday, November 27, 2025, the ORB convened a hearing to review the restriction of liberty occasioned by his seclusion status. The panel and parties participated by video conference using Zoom technology. Mr. Barry was in attendance and represented by his counsel, Ms. Francis.

5. Parties confirmed that the sole issue to be considered at this hearing is whether the restriction on Mr. Barry’s liberty imposed when he was placed in seclusion from October 17, 2025, to October 26, 2025, was the least onerous and least restrictive intervention in the circumstances, both initially and throughout its duration.

6. For the reasons set out below, this panel concluded that the initial restriction of Mr. Barry’s liberty imposed when he was placed in seclusion was necessary and appropriate and the least onerous and least restrictive intervention in the circumstances and continued to be so throughout its duration.

Positions of the Parties

7. At the outset of the hearing, counsel for the Hospital submitted that the restriction of liberty imposed on Mr. Barry on October 17, 2025, was necessary and appropriate and represented the least onerous and least restrictive measure at the time it was imposed and continued to be throughout its duration until October 26, 2025.

8. Counsel for the Attorney General supported the Hospital’s position.

9. Counsel for Mr. Barry indicated that she was unable to take a position. She met with her client the day before the hearing, and he remembered that the restriction of liberty had occurred. In Ms. Francis’ opinion, Mr. Barry was not too distressed by it, but she was unable to say whether the restriction was reasonable or not.

10. The parties confirmed that there was no request to review Mr. Barry’s annual Disposition, and the parties maintained their initial positions at the end of the hearing.

Alleged Offences

11. The circumstances giving rise to the alleged offences occurred on January 27, 2022, April 12, 2022, June 28, 2022, July 15, 2022, March 3, 2024, July 19, 2024, and December 4, 2024.

12. In summary from the Hospital Report:

January 27, 2002, assault: a nurse at the Peterborough Regional Health Centre in the Mental Health Inpatient Program reported that she had been assaulted by Mr. Barry, who was a patient. Nursing staff smelled smoke and were informed that Mr. Barry had lit something using the toaster. He was found in his room with cannabis and a rolling paper in his hand. He refused to surrender the cannabis and began to ingest it. As staff attempted to remove the cannabis from him. Mr. Barry swung his hand in an attempt to punch a nurse. The victim of the offence grabbed his arm. Mr. Barry grabbed the victim around the neck in a choke hold and began to pull her hair and spit on her. He pulled her mask off. Security attended, and an injection was required to calm Mr. Barry.

April 12, 2022, sexual assault: a nurse at the Peterborough Regional Health Centre in the Mental Health Inpatient Program reported that she and an intern student saw Mr. Barry, a patient, drop a vape pod outside the nursing station. They went to assist him to pick it up as Mr. Barry has mobility issues. As the nurse held out her hand to give him the cartridge, Mr. Barry grabbed her right hand and pulled her to him. He moved his face in front of hers and stated: “Don’t fucking touch me.” He then grabbed her breast and squeezed and twisted it. The victim pushed Mr. Barry away and moved into the nursing station and he returned to his room.

June 28, 2022, assault: a nurse at the Peterborough Regional Health Centre in the Mental Health Inpatient Program reported that she had been assaulted by Mr. Barry, who was a patient. The nurse saw Mr. Barry pass a female patient and say something that caused her to be angry. The female patient went to the nurse and told her Mr. Barry had said: “I’m going to rape you in the ass.” When the nurse confronted Mr. Barry, he admitted he said it then told her: “suck my dick.” The nurse warned him about his behaviour and consequences if he continued to act out. When she returned from retrieving his medication, the nurse found Mr. Barry and another nurse struggling on the ground. He was yelling at the other nurse, “I told you I’m going to see your tits” and was grabbing her shirt trying to rip it off her. When the victim went to assist her colleague, Mr. Barry kicked toward her face, but she ducked and was kicked in the shoulder, sustaining a slight injury. The force caused her to fall back and hit the ground. Security attended and an injection was required to calm Mr. Barry.

July 15, 2022, assault: a nurse at the Peterborough Regional Health Centre in the Mental Health Inpatient Program reported that she had been assaulted by Mr. Barry, who was a patient. The nurse went to Mr. Barry’s room to give him his vape cartridge. He requested help to open it, and she encouraged him to try to open it himself. Mr. Barry stood up and hit her in the face, causing a bleeding scratch from her left eye to the top of her lip. The scratch continued to bleed for several minutes and security restrained Mr. Barry.

March 3, 2024, fail to comply with undertaking: Peterborough Regional Health Centre staff contacted police to report that Mr. Barry was not in medical distress and had no reason to be at the hospital. He was in breach of an undertaking not to attend the hospital for non-medical reasons.

July 19, 2024, assault cause bodily harm: a nurse at the Peterborough Regional Health Centre reported that she had been assaulted by Mr. Barry, who was a patient, and that she sustained a concussion. She was unfamiliar with the patients as this was not the usual floor where she worked. Mr. Barry was lying on his bed when she went to check him. When she came near, he grabbed her by the collar of her scrubs and started punching her in the face and head. She was yelling and trying to get free when two nurses came to assist her. A Code White was called to have security staff restrain Mr. Barry. She felt unwell and was assessed following her shift and diagnosed with a concussion that required her to be off work for seven days.

December 4, 2024, assault: a contract security guard reported that she was assaulted by Mr. Barry, a patient, while she was working at Peterborough Regional Health Centre.

Background

13. The Restriction of Liberties Report (the “ROL Report”) dated November 17, 2025, was admitted into evidence, as well as the Waypoint Centre for Mental Health Care Hospital Report (the “Hospital Report”) dated August 1, 2025. The Hospital Report sets out Mr. Barry’s background, education, employment history, criminal offence history, and psychiatric history. As it has been made an exhibit in the hearing, it is unnecessary to reproduce the information here.

Current Diagnoses

14. Mr. Barry’s current psychiatric diagnoses are:

Major Neurocognitive Disorder due to another medical condition, moderate, with agitation;

Other (or unknown) Substance Use Disorder, severe; and

Antisocial Personality Disorder.

15. Mr. Barry has a medical diagnosis of Anoxic Brain Injury as a result of a drug overdose. Mr. Barry’s mobility and ability to communicate are significantly affected. Mr. Barry can communicate only in single words or short phrases and can indicate some things with his hands (thumbs up or fist bumps). He will occasionally type. Mr. Barry requires significant assistance with activities of daily living and his fine motor skills, gait, and mobility are impaired. He has a walker to assist with his stability and prevent falls.

Circumstances Leading to the Restriction of Liberty

16. Dr. Mishra testified at the hearing that he is Mr. Barry’s most responsible physician. Because Mr. Barry is mostly non-verbal due to his brain injury, he can experience frustration which manifests in difficult behaviours. The staff on his unit are very familiar with Mr. Barry and can usually redirect, distract, or pre-emptively remove him from situations when they recognize that he is becoming upset. He experiences ongoing brief periods of agitation and low-level aggression, but this is manageable.

17. Because Mr. Barry cannot articulate how he feels, staff must assess his mental state based on his behaviour. Dr. Mishra stated that at his baseline, Mr. Barry occasionally engages in conversation of some sort but frequently is non-communicative and non-interactive, lying on his bed or sitting in the tv lounge. He will often stare or masturbate publicly, but he can generally be redirected.

18. On October 17, 2025, Mr. Barry received a visit from his brother Cory, who also acts as his Substitute Decision Maker (“SDM”). Dr. Mishra stated that they had not seen each other for quite a while and were both emotional. Mr. Barry was very upset after the visit. He was dragging his walker behind him when he entered the lounge, and when staff directed him to let it go and tried to stabilize him to prevent a fall, Mr. Barry stopped, turned, and punched his 1:1 assigned staff member in the jaw. Attempts to calm Mr. Barry were unsuccessful and PRN medication had little effect.

19. Dr. Mishra testified that this assaultive behaviour was unusual for Mr. Barry and was sufficiently concerning that the on-call doctor decided that it was necessary to place Mr. Barry in seclusion to protect staff and other patients. Dr. Mishra stated that the level of aggression and lack of engagement were very out-of-character for Mr. Barry, though he can be angry or irritable at his baseline.

20. Dr. Mishra stated that initially when secluded, Mr. Barry remained in a highly agitated state and presented as very angry and uncooperative, or he refused to communicate in any way with staff. He flipped up his mattress and was not interested in food which is usually something that engages him. He was closely monitored every 15 minutes.

21. As required by the Hospital’s seclusion protocol, Mr. Barry was assessed after 24 hours, after 72 hours, and after seven days to assess whether it was safe to discontinue seclusion. Patients are seen by independent psychiatrists (rather than the patient’s most responsible physician). Mr. Barry was assessed daily for relief from seclusion. On October 18, 2025, Mr. Barry did not engage with staff when asked if he wished to participate in seclusion relief and they were unable to assess his mental status to see if relief was appropriate. The following day he was responsive and took a shower but did not engage further. On October 20, 2025, Mr. Barry did not engage with the on-call doctor for assessment. The following day he participated successfully in seclusion relief but was agitated later in the day and took PRN medication. The next two days Mr. Barry participated in seclusion relief to an extent but did not follow staff direction, which was also highly unusual behaviour for him. After successful seclusion relief on October 24 and 25, 2025, seclusion was discontinued.

22. No further seclusion has been required since Mr. Barry has been successfully pre-emptively removed, re-directed, or distracted. Dr. Mishra testified that a level of agitation and lack of cooperation which is not typical for Mr. Barry persists; however, he has not engaged in any further assaultive acts. Dr. Mishra would like to adjust Mr. Barry’s medication, but has been unable to contact the SDM, as his phone number is out of service.

23. No further evidence was called by the parties.

Findings of the Board

24. The Board accepts the evidence of Dr. Mishra, and the evidence contained in the Hospital Report. This panel accepts without reservation that the decision to seclude Mr. Barry was warranted. We note Dr. Mishra’s evidence that the staff is familiar with Mr. Barry and that due to his brain injury, his behaviour is their only meaningful insight into how he is feeling. His behaviour leading to the seclusion was surprising to the staff who know him well and was seriously assaultive, which is very out-of-character. We accept that because Mr. Barry is largely non-verbal, if he refuses to engage with assessment as he did early during his seclusion, there is no way to assess his state of mind to determine if relief is appropriate. After two consecutive days of successful seclusion relief, the Hospital discontinued seclusion.

25. Accordingly, we find there was a restriction of liberty in that Mr. Barry was placed in seclusion, but in the panel’s opinion, the seclusion was warranted to protect staff, other patients, and Mr. Barry himself, and the ongoing seclusion was the least onerous and least restrictive decision available to the Hospital. Seclusion was discontinued promptly after two successful days of relief from seclusion where Mr. Barry presented much more in accordance with his baseline.

DATED this 17th day of December 2025, at the City of Toronto, in the Region of Toronto.

Ms. M. den Haan

Legal Member

___________________

Office of the Registrar

Ontario Review Board