Re Nancy Brubacher, 2025 CanLII 15864

Re: Nancy Brubacher

ORB File No: 8699

Hearing held on: Thursday, January 30, 2025

Place of hearing: North Bay Regional Health Centre

Pursuant to: Section 672.47(1) of the Criminal Code

Before:

Alternate Chairperson: Hon. R. Bigelow

Members: Dr. R. Kunjukrishnan

Dr. G. Kerry

Mr. E. Siebenmorgen

Mr. A. Bouvier

Parties Appearing:

Accused: Nancy Brubacher

Counsel: Mr. C. Bracken

The Person in charge of Hospital: Counsel: Mr. P. Trenker

Representative: Ms. C. Condie

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

REASONS FOR DISPOSITION

(Dated February 26, 2025)

Introduction:

1. On December 6, 2024, Nancy Brubacher was found not criminally responsible (NCR) for the offence of first degree murder, contrary to the Criminal Code. The Court did not make a Disposition and ordered that Ms. Brubacher be detained in custody at the North Bay Regional Health Centre (“NBRHC” or “the Hospital”) pending her initial Ontario Review Board (“Board” or “ORB”) hearing. She was admitted to NBRHC’s forensic assessment unit on December 7, 2024 and remained there until the date of her initial Board hearing.

2. On January 30, 2025, the Board convened in person at NBRHC to conduct Ms. Brubacher’s disposition hearing and to make a Disposition pursuant to s. 672.47(1) of the Criminal Code. Ms. Brubacher attended the hearing, represented by her counsel, Mr. Bracken. Ms. Brubacher’s husband, Cleason, and two of his brothers also attended.

3. The issues to be determined at the hearing were whether Ms. Brubacher represents a significant threat to the safety of the public as defined in section 672.5401 of the Criminal Code and, if so, what is the necessary and appropriate Disposition which is also the least onerous and least restrictive, having regard to the statutory factors in s. 672.54. In relation to the latter issue, the panel was also asked to consider ordering Ms. Brubacher’s transfer to the Southwest Centre for Forensic Mental Health Care in St. Thomas (“Southwest Centre”), a location geographically closer to her family home.

4. At the outset of the hearing, the panel asked for the parties’ initial positions. Counsel for the Hospital proposed that the necessary and appropriate Disposition is a Detention Order to the Forensic Programs at NBRHC, on terms and conditions as specified in the Hospital Report dated January 17, 2025. The proposed terms included community living in accommodation approved by the person in charge of the Hospital. Counsel stated that at the outset of the hearing, the Hospital was taking no position in relation to the requested transfer to the Southwest Centre.

5. Counsel for the Attorney General supported the Hospital’s position and further advised that she would be either supporting or taking no position in relation to the requested transfer.

6. Counsel for Ms. Brubacher conceded the issue of “significant threat”, agreed with the Hospital’s recommendations, and requested that the Board order that Ms. Brubacher be transferred to the Southwest Centre.

7. Following the conclusion of the evidence, the parties presented a joint position with respect to the Disposition, including the proposed transfer to the Southwest Centre. For the Reasons that follow, the panel accepted the parties’ joint position on all issues. Specifically, the panel found that Ms. Brubacher represents a significant threat to the safety of the public and that the necessary and appropriate Disposition is a Detention Order, including an Order that Ms. Brubacher be transferred to the Southwest Centre for Forensic Mental Health Care. Pending this transfer, Ms. Brubacher is to be detained at the Forensic Programs at NBRHC on the terms and conditions specified in the Hospital Report.

8. The evidence at the hearing included the viva voce testimony of Dr. G. Munro (Ms. Brubacher’s attending psychiatrist) to supplement the Hospital Report, mentioned above. The Record of the hearing consisted of:

1. The Notice of Hearing, dated January 9, 2025;

2. A Rule 13 Notice, dated January 23, 2025, advising of Ms. Brubacher’s intention to seek a transfer to the Southwest Centre at her January 30, 2025 Review Board hearing; and

3. A Response to the Rule 13 Notice, dated January 27, 2025, from Dr. Ajay Prakash of the Southwest Centre.

9. The documentary evidence at the hearing consisted of:

1. The Warrant of Committal, dated December 6, 2024 (Exhibit 1);

2. The Reasons for Judgment from the trial court, dated December 6, 2024 (Exhibit 2);

3. The Criminal Responsibility Assessment Report, dated October 22, 2024 (Exhibit 3);

4. The Indictment, dated November 28, 2024 (Exhibit 4); and

5. The previously mentioned Hospital Report dated January 17, 2025 (Exhibit 5).

The Index Offence:

10. The circumstances of the index offence are tragic and heart wrenching in the extreme. The victim was Ms. Brubacher’s 10-month-old daughter, Selema. Counsel for the Attorney General advised the panel that the facts agreed upon at Ms. Brubacher’s trial reflected the information contained in the synopsis found in the Hospital Report (reproduced below). She undertook to obtain, for the Board, a transcript of the reading-in of the facts at the trial. It is expected that this transcript will be available for Ms. Brubacher’s next hearing. The synopsis, modified to remove certain addresses, is as follows:

“On December 07, 2023, Nancy BRUBACHER (30yrs) was in her residence [address removed] in the Municipality of Grey Highlands, with her daughter Selema BRUBACHER (10 months). Nancy BRUBACHER’s three other children had taken the bus to school and her husband Cleason BRUBACHER was working in the shop outside, located on the property.

Nancy BRUBACHER filled the bathtub three quarters full, and threw Selema into the tub and ran to another room. Nancy could hear Selema splashing around for several minutes. Nancy returned to the bathroom and with two hands held Selema face down in the water until Selema stopped struggling and she no longer had a heart beat. Nancy told police when interviewed, she thought the Selema had died in the tub and confirmed that was her intention.

Once Nancy BRUBACHER believed Selema was deceased, she phoned her husband Cleason and asked him to come into the house. When Cleason came inside, [he] phoned 911 and began CPR on Selema until emergency services arrived.

Nancy BRUBACHER told police at the scene that she tried to drown her baby and was arrested for attempt murder, and advised of her right to speak to counsel. Nancy BRUBACHER was transported to the Chatsworth OPP detachment.

Selema BRUBACHER was transported by EMS from the scene to Markdale hospital. From Markdale hospital, Selema was transported to London Victoria Hospital.

Nancy BRUBACHER was charged with attempted murder contrary to section 239 of the Criminal Code, and Aggravated Assault contrary to section 268 of the Criminal Code.”

On Monday, December 11, 2023, at 10:52 a.m., DC Scott ORSAN of the Southern Georgian Bay Detachment Major Crime Unit arrested Nancy BRUBACHER for First Degree Murder contrary to Section 235(1) of the Criminal Code. BRUBACHER was in-custody at Central North Correctional Centre. DC ORSAN asked if BRUBACHER understood the new charge and she responded, ‘Yes, they told me already.’

Prior to arrest, BRUBACHER told DC ORSAN that the courts had already notified her of Selema’s passing and that police were going to be arresting her on the new charge that day.”

11. During her criminal responsibility assessment, Ms. Brubacher provided a detailed account of the circumstances of the index offence. That account, which is consistent with the foregoing synopsis but contains much more detail of the events, is reproduced at pp. 7-8 of the Hospital Report. It would serve no purpose to reproduce these details in these Reasons.

12. In addition, Ms. Brubacher provided a detailed self-report concerning the days, weeks, and months preceding the index offence. This information is relevant to an appreciation of her ongoing risk to public safety and the Board’s responsibility to manage that risk by crafting a Disposition that addresses the factors listed in s. 672.54 of the Criminal Code. This information is accordingly summarized below following the review of Ms. Brubacher’s prior psychiatric treatment history.

Ms. Brubacher’s Background:

Introduction/Overview

13. Ms. Brubacher was 31 years old at the time of the hearing. She is married and has three surviving children. She was living with her husband and children at the time of the index offence. She has no prior criminal record and no history of alcohol or other substance use. She is currently diagnosed with Bipolar I Disorder and has a lengthy history of mental health challenges, including significant depressive symptoms. Dr. Munro testified at the hearing that in her opinion, Ms. Brubacher has struggled with being in post-partum or peri-partum periods for much of her adult life, beginning with her first pregnancy following her marriage at the age of 19. She experienced 11 pregnancies, including the birth of four children and seven miscarriages. Her background history is extensively detailed in the criminal responsibility assessment report and much of that information has been incorporated into the Hospital Report. In these Reasons, those aspects of her background that are helpful to understand her risk, mental health and other needs, and the current context for her community reintegration will be specifically highlighted.

Childhood and Family History

14. Ms. Brubacher was born in Linwood, Ontario, in Waterloo Region. Her family was part of the local Mennonite community. Her mother was a homemaker, and her father operated a welding business. Ms. Brubacher described a supportive relationship with her mother but characterized her father as angry, stating that he physically disciplined the children and sometimes yelled and broke items in the house. Mrs. Brubacher described experiencing ongoing verbal abuse from her father during her childhood. Her father also engaged in problematic behaviours such as drinking and infidelity, and he also acted in ways that upset her mother, including destroying her garden and watching pornography.

15. Ms. Brubacher’s speech development was delayed, as she began speaking at the age of 18 months. The family’s language at home was Pennsylvania Dutch, and Ms. Brubacher faced challenges when she started school, where English was the language of instruction. She struggled with comprehension and timely completion of assignments. In Grade 5, she was placed in a special education class but was never formally diagnosed with a learning disability and never had an individualized education plan.

16. Ms. Brubacher withdrew from school after completing Grade 8, as was customary in her community, and has had no formal education since then. Instead, she developed homemaking skills. She served as a “mother’s helper” in as many as 20 different households, often travelling as far as one hundred kilometres from her home and spending extended time away. Although she enjoyed being away from family tensions at home, she was occasionally criticized for taking too long to complete her chores. Ms. Brubacher described finding it challenging to stay up overnight to help with a baby and then to spend the day attending to chores with very little sleep. Her experiences as a mother’s helper left her fearful of childbirth because of the pain associated with labour and the expectation of having large families in her community. She continued to do this work until her own marriage.

Relationship History/Family Life

17. Ms. Brubacher started to date her husband at the age of 16, and they were married when she was 19 years old. She reportedly (as noted in the criminal responsibility report, p. 27) became pregnant six weeks after the wedding. She underwent a dilation and curettage procedure following a miscarriage at approximately 16 weeks. This had been attributed to a fetal anomaly. She became pregnant again five months later but experienced another miscarriage at 13 weeks’ gestation. She again became pregnant and delivered her first child at the age of 20 years. She experienced symptoms of postpartum depression, saw a psychiatrist, and reluctantly started to take prescribed antidepressant medication. Her mood improved with the medication, and she began to enjoy her child more. She tapered down and then discontinued her medication when the child was six months old.

18. This cycle was repeated with Ms. Brubacher’s second child. However, after discontinuing her medication once her second child was six months old, she began to experience difficulties, including irritability and anger, and found herself no longer enjoying activities that had previously given her pleasure. Her next two pregnancies both resulted in miscarriages. These pregnancies and subsequent miscarriages were accompanied by symptoms of depression and some suicidal ideation, but the symptoms largely resolved with medication. She remained on antidepressant medication through another pregnancy which resulted in the birth of her son. She reportedly enjoyed parenting her son but was overwhelmed by having to care for a newborn in addition to her two older children. She remained on her medication until she stopped breastfeeding her son.

19. Ms. Brubacher again became pregnant a month later but again experienced a miscarriage. This time, antidepressant medication did not improve her symptoms, and her condition worsened to the point where her husband called emergency services, and she was brought to hospital by ambulance accompanied by police. Although her symptoms resolved with treatment, they returned six weeks later, and this time she also became impulsive and physically aggressive. She reportedly struck her husband in the head and fractured one of her fingers. Her husband contacted emergency services and Ms. Brubacher was taken to hospital on August 2, 2020. This admission, which lasted until August 26, is discussed below under the “Psychiatric History” heading in these Reasons.

20. Ms. Brubacher reportedly experienced anxiety about her compatibility with her husband and had difficulty trusting him due to fears stemming from her own mother’s past experiences. Despite exhibiting symptoms of depression and struggling with anger, she generally had a good relationship with her husband, attributing their harmony to his non-confrontational nature. However, she often felt inadequate and hard to love, especially after discovering that he occasionally watched pornography, despite their positive sexual relationship.

Psychiatric History:

21. Ms. Brubacher reported experiencing insomnia starting around the age of fifteen. She said that a sedative prescribed by her doctor was effective in treating this. She also described an episode of depression around the age of 18, experienced while she was staying with her sister after the birth of the sister’s first child. Her sister was experiencing symptoms of post partum depression at this time, and Ms. Brubacher attributed her own feelings of depression to a lack of sleep and feeling shame that her sister did not trust her to watch the baby due to her insomnia. She reported feeling anxious and depressed, along with feelings of guilt and worthlessness. She was seen by her family physician shortly before her wedding, and was prescribed both a sleep aid and an antidepressant. She did not take the latter medication due to worry about its potential impact on her fertility.

22. As noted above, Ms. Brubacher experienced further major depressive episodes after the birth of each of her children, with these symptoms becoming increasingly severe. She also experienced symptoms of depression following several miscarriages. As detailed below, in 2020, she was hospitalized for several weeks due to symptoms of mania and psychosis.

23. Ms. Brubacher’s first documented psychiatric admission was from August 2 to 26, 2020, as noted above. She reportedly experienced a miscarriage in late June of that year and reportedly voiced fears of the future and a lack of desire to live. Her husband reported that she had been sleeping very little, talking more than was normal for her, speaking quickly, and being physically aggressive toward him. Reportedly, these symptoms began on July 29, 2020, following the insertion of an intrauterine device (IUD) for contraception. Ms. Brubacher was brought to hospital by police during a psychiatric crisis. A Code White was called on August 3, 2020. Ms. Brubacher threw medication at staff, threatened to kill a nurse, and grabbed a psychiatrist. During her admission, she displayed further symptoms of mania, including disorganized behaviour, racing thoughts, physical aggression, elation, and sexually inappropriate behavior with co-patients. Her symptoms gradually resolved with treatment with antipsychotic and mood stabilizing medications. She was discharged home with a plan to follow up as an outpatient. She was counselled regarding the risk of recurrence in future pregnancies, including the risk of developing bipolar disorder.

24. Ms. Brubacher was seen as an outpatient by a psychiatrist, Dr. A. Anago, following her discharge in September of 2020. Their last appointment prior to the index offence was in early September of 2023. During appointments, Ms. Brubacher reported feelings of depression and concerns for her relationship with her husband but consistently denied symptoms of psychosis or suicidal or homicidal ideation. On assessment, it was determined that she experienced significant symptoms of depression, anxiety, and difficulty managing her anger after the majority of her pregnancies, and that these symptoms became more severe over time.

25. Ms. Brubacher’s next psychiatric admission occurred in mid-February of 2023, days after the birth of her fourth child (the victim of the index offence). She initially attended at the emergency department, complaining of insomnia and depression. Medication changes were made, and she saw her outpatient psychiatrist, who recommended hospital admission, which she declined. She attended at the emergency department twice the next day, the second time having been brought by ambulance after her husband called police, worried that she might hurt her newborn baby. She was hospitalized until March 3. She had significant insomnia throughout her admission, resolving just two days prior to her discharge. She endorsed feelings of anxiety and being overwhelmed with her newborn, voicing concerns about her ability to care for the baby and her other children, along with passive suicidal ideation. She had not re-started her usual medications following the baby’s delivery. Her medication dosages were adjusted, and she was discharged to continue her outpatient care with Dr. Anago.

26. A month later, on April 9, 2023, Ms. Brubacher as again brought to hospital by ambulance. She had continued feeling “numb” and not attached to her new baby. She had gone to the pond on her property intending to drown herself and had to be physically removed from the water. On admission, she had significant depressive symptoms and was distressed by difficulty bonding with her child and by her belief that the child preferred the “mother’s helper” who was supporting the family at home. Reportedly, she had feelings of failure as a mother and thoughts of drowning the infant in the bathtub. On April 27, 2023, Ms. Brubacher attempted suicide in the hospital by trying to drown herself in a bathtub on the psychiatric unit. She voiced a belief that her family “no longer wants her”. Having shown limited response to several medications, she underwent 11 of 12 scheduled sessions of electroconvulsive therapy (ECT) prior to her discharge on June 16, 2023. She had had several successful passes to her home prior to her discharge and resumed outpatient care with Dr. Anago.

Ms. Brubacher’s Self-Report During Her NCR Assessment:

27. The following lengthy extract from Dr. Munro’s criminal responsibility assessment report, dated October 22, 2024, is reproduced in the Hospital Report:

“Mrs. Brubacher recalled that despite the treatment she had received when admitted to hospital in June, 2023, she did not return to feeling like her normal self. She described feeling unhappy, having a low appetite accompanied by some weight loss, and was still sleeping poorly despite being on a number of highly sedating medications. She reported feeling extremely stressed as the new baby cried frequently, and she felt that she could not cope with the demands placed upon her at home. She reported extreme feelings of anger, which she described as ‘on the verge of not being controlled,’ and would occasionally lash out physically. On one occasion, she struck the young mother’s helper when she woke Mrs. Brubacher. She recalled that she only sleep [sic] throughout the night when she was taking a large number of sleeping pills at the same time. These left her with significant side effects, and she was often too sleepy and dizzy to take care of her baby. However, these symptoms gradually resolved, and her symptoms abated such that she was able to make herself eat to maintain a healthy weight. Although she continued to feel profoundly unhappy, she was not experiencing any suicidal ideation in the weeks following her discharge from hospital. The mother’s helper left in August, 2023, and Mrs. Brubacher recalled ongoing feelings of being stressed and unable to cope. She stated that she disclosed her ongoing stress and anger management difficulties with her outpatient psychiatrist during an appointment in August or September, 2023, although the same is not reflected in clinical notes during this period. Mrs. Brubacher indicated that she remained highly stressed, irritable, and angry for some time. She no longer enjoyed visiting friends and family on Sundays, and found these excursions extremely stressful to manage, particularly given the work in preparing the children to travel. She found that she was slower to complete tasks, and had decreased motivation. She described feeling as if her ‘brain shut off’ due to her stress. She struggled to recall how to complete routine tasks that she knew well, for example noting that she had to re-learn how to sew a shirt as she had forgotten. She also recalled that others would sometimes tell her that ‘the way I talked didn’t make any sense.’”

28. Dr. Munro’s criminal responsibility report includes the following description of Ms. Brubacher’s self-reported mental and emotional state, as well as some of her actions, during the fall of 2023, prior to the index offence:

“Mrs. Brubacher recalled that in late November, 2023, she experienced less intense insomnia although she continued to feel depressed, overwhelmed and had vague thoughts about ending her life. She reported she had an increased appetite, and gained fifteen pounds in a relatively brief period of time. She recalled she did not care about her weight as she did not see herself getting better and believed she had no future, noting ‘it made me careless about other things.’ She also recalled that her actions were ‘slower, and that ‘things were sluggish at home.’ She felt this low energy negatively impacted her children, and she had recurrent thoughts of harming her youngest child at this time. Although she was ‘getting along better with the baby,’ her mood remained predominantly sad and afraid. She struggled to come to terms with ‘what to do with my life,’ because she did not think she should get pregnant again, despite her community’s cultural tradition of having large families. She reported that she was so sedated by her medications that she had little libido, and was consumed by fears that her husband would become unfaithful or abandon the family. She endorsed believing that because she did not get along with the children as well as her husband, she should leave the home, although she knew she had nowhere to go and worried about having to be homeless and ‘living on the streets’ during winter. She was not looking forward to her baby’s first birthday, as she knew that the child would soon start to walk, and then would be ‘all over the place,’ require greater supervision, and that she would soon develop into the ‘terrible twos.’ She recalled that she was ‘not looking forward [to] her growing up,’ in contrast with watching the development of her other children, which she enjoyed. She continued to experience periodic thoughts of ending her own life. She believed that her husband and children perhaps noted that she was not her normal self, and that they had identified that she was not attached to her youngest child, and was more distant with the infant and did not care for her in the same fashion as her other children.

Mrs. Brubacher noted that she became increasingly preoccupied with concerns that she did not love her child ‘because I didn’t feel the connection….a child without love cannot grow to be a healthy person. She would grow up mental like me.’ She ruminated on the fact that the ambulance driver who had taken her to hospital during her last admission had told her that children grow up to be like their parents, and felt that as her psychiatric difficulties had become more intense with age, her infant would doubtless have a similar course. These concerns were exacerbated when the baby developed difficulty sleeping, and she reached the conclusion that the infant would grow up to develop the same psychiatric difficulties Mrs. Brubacher experienced. She recalled that ‘I know how it feels to want to end your life, I wanted to spare her from the hardships of life.’ She further noted that she was intensely worried for her child’s future, stating ‘I know what happens if you don’t sleep, because they get thoughts to hurt themselves or somebody else. I worried about her future.’ She reported she also worried about her other children’s mental health, but not with the same intensity with which she worried about her youngest daughter. She became consumed by the thought that she would not be able to adequately care for her child, and as divorce and adoption were frowned upon in their community, she felt that she had ‘no options anywhere.’ She experienced significant feelings of guilt, and came to believe that her difficulties were ‘my fault because I was so mental…I felt it was my fault.’ She reported that on some days, when her mood was particularly low, she would become preoccupied with thoughts of killing her child, and on one occasion actually unbuttoned the child’s dress with the intention of drowning her in the bathtub. However, she changed her mind on that occasion as she felt that harming her child would ‘ruin the family.’”

29. Finally, the following extract from the criminal responsibility report details Ms. Brubacher’s self-reported thoughts and feelings in the days prior to, and on the day of, the index offence:

“Mrs. Brubacher further noted that there was a family gathering on December 3, 2023, however she was unable to enjoy the event as she was preoccupied with concerns that she was “ruining” the gathering as she believed her guests knew that she and her husband were not happy, and she believed that she was making the event ‘miserable for others.’ It was following this event that she made the decision to kill her infant daughter. She reported her mood was particularly low that day, as she was discouraged by some behavioural difficulties her older children were experiencing, and for which she felt responsible. She also saw no future for herself or for her infant daughter. She had little recollection of the days following this event, but felt that her mood was stable, but low. She was ambivalent about her decision to end her daughter’s life, as it was something she had previously considered and not acted on. She recalled ‘I was hoping they would go away. The thoughts were too overpowering,’ and noted that these thoughts continued, although with varying intensity.

There was a second family gathering on December 6, 2023, the day before the index offence. This seasonal gathering involved many community members attending the farm to butcher the family’s pigs. During this visit, Mrs. Brubacher again came to believe that her difficulties in forming an attachment to her youngest daughter and problems parenting were obvious to the guests. She noted she was experiencing profound feelings of inadequacy, guilt, and shame. During the course of this gathering, she again made the decision to end her daughter’s life and had intense thoughts of leaving the Mennonite community. Once she had made the decision to end her daughter’s life, her mood was brighter, and she was able to present in a fairly normal fashion. She does not believe that any of her extended family noted anything was abnormal.

Mrs. Brubacher reported that on December 7, 2023, she got up at her usual time, and had a number of chores to complete, in addition to getting the children ready for school. As the family had butchered a number of pigs the day before, she had to prepare the meat for freezing and had to do several loads of laundry. She sent her oldest three children off to school at around 8:00 a.m. She indicated that at that point she had decided to kill the victim, and felt that this decision is what ‘my heart was telling me to do…it’s hard to explain…it was mostly so she didn’t have to grow up in this world.’ She had great difficultly articulating her emotions around this time, and was periodically inconsistent in her self-report, for example also stating ‘I never knew for sure it will happen – sometimes it surprises me that it did happen.’ She denied having any strong emotions that morning, although she continued to experience her usual symptoms of depression and low mood. She did not recall experiencing any symptoms of mania, hypomania, or any perceptual disturbances.”

Psychological Testing:

30. As noted in the Hospital Report, there was no actuarial risk assessment available for the hearing. However, psychological testing was completed during the criminal responsibility assessment. That testing yielded an opinion that Ms. Brubacher’s “. . . docility, dependency, and concerns around abandonment were likely reflective of the cultural expectations within the Mennonite community, and did not meet diagnostic criteria for a personality disorder such as Dependent Personality Disorder”.

31. Dr. Munro’s criminal responsibility report includes (at pp. 13-27) an extensive extract from Dr. Lariviere’s psychological report from testing that was conducted during that earlier assessment. Several observations from that report appear germane to the identification of risk factors for Ms. Brubacher and the management of her risk, pending the completion of an actuarial and clinical risk assessment in the future. Those observations include the following:

(i) Ms. Brubacher's profile indicates the presence of internal instability, including behaviours and interactions that are characterized by ambivalence, leading to emotional turmoil and a distorted perception of others and her environment. The core framework upon which she depends for understanding the world is likely impaired and her perception of psychological well-being is fragile. Although she is typically able to function appropriately, periods of emotional, cognitive, or behavioural dysfunction are likely.

(ii) Ms. Brubacher's preoccupations with personal adequacy, chronic feelings of dejection and a consistently apathetic attitude suggest the presence of a persistent depressive disorder. Plagued with self-doubts, she is saddened by the view that she may be seen as both socially unattractive and physically inferior by others. In response to her profound dissatisfaction and sadness, she exhibits self-punitive behaviour, self-demeaning thoughts, and an over-sensitivity toward her own flaws. Despite her strong need for approval and love from others, her hopes seemed to be waning rapidly.

(iii) Ms. Brubacher appears to experience the residual effects of a previously traumatic event during which she experienced intense fear and panic. The lingering effects of this experience seem to repeatedly resurface through upsetting memories and she is prone to avoiding situations that mimic or signify elements of the traumatic incident in issue. Where these cannot be avoided, as in the case of recurring nightmares or flashbacks, she may become terrified once again and exhibit a number of symptoms of intense anxiety. Anticipating these recurrences may result in other signs of distress, including difficulty falling asleep, outbursts of anger, panic attacks, hypervigilance, and exaggerated startle response, or a numb and detached disposition.

(iv) Ms. Brubacher was administered the State-Trait Anger Expression Inventory (STAXI-2). She showed a high propensity for expressing anger outwardly in a verbal fashion, but little or no inclination to hit someone or break things. She may experience significant difficulties in controlling her outward expressions of anger and could be prone to explosive behaviour at times, expressed through verbal or physical means. Overall, her Anger Expression Index (AX Index) scored as High, suggesting that she is inconsistently able to suppress her feelings of anger and directs these feelings outwardly when unable to do so.

Testimony of Dr. Munro at the Hearing:

32. Dr. Munro was Ms. Brubacher’s treating physician at NBRHC, both during her NCR assessment in 2024 and since her readmission to the Hospital following the verdict. Dr. Munro began her evidence by stating that Ms. Brubacher has done extremely well during both admissions to the Hospital. Dr. Munro agreed with Ms. Brubacher’s counsel’s suggestion that his client has thus far been a “model patient”. Ms. Brubacher has not been irritable or impatient with either staff or other patients.

33. Dr. Munro testified that Ms. Brubacher’s mental status has been relatively stable. While Ms. Brubacher was still experiencing mild features of depression, Dr. Munro was hopeful that these would be addressed with medication during the coming months.

34. Dr. Munro addressed the matter of privileges that could be utilized by Ms. Brubacher following the issuance of the Board’s Disposition, noting that the Hospital would proceed in a stepwise fashion in this regard. In Dr. Munro’s opinion, Ms. Brubacher would be able to appropriately utilize both directly and indirectly supervised hospital and grounds privileges. Dr. Munro also opined that Ms. Brubacher could utilize visits to her home, supervised at this point by Hospital staff. Dr. Munro also saw the potential for Ms. Brubacher’s husband to become an approved person within the coming year.

35. In response to questions as to where it was expected that Ms. Brubacher would be housed following the Board’s initial Disposition, Dr. Munro stated that she would likely go to either Owl Lodge or Heron Lodge, though she could potentially go to Hummingbird Lodge. The latter is an eight-bed, all-female unit. Dr. Munro opined that Ms. Brubacher may benefit from some of the intensive supports provided on this unit. She likely would not need to complete the entire Hummingbird Lodge program but perhaps Phase I of the program would be helpful. Ms. Brubacher is atypical for the patients who take advantage of Hummingbird Lodge, but Dr. Munro, in response to a panel member’s questions, stated that the program does house several other “atypical” patients.

36. Dr. Munro provided a brief overview of the Hummingbird Lodge program’s three phases. She stated that Phase I focuses on the development of stabilization skills for patients. The second phase is an intensive recovery program that addresses various forms of trauma, including post-traumatic stress disorder (or PTSD). The third phase is a rehabilitation and reintegration program that prepares patients for community living.

37. Dr. Munro addressed the issue of Ms. Brubacher’s risk to public safety. Acknowledging that Ms. Brubacher has fewer risk factors than most people coming before the Board at NBRHC, Dr. Munro stated that the primary risk factor in this case is that which would arise if Ms. Brubacher were to again become pregnant. Noting that Ms. Brubacher has been in a peripartum or postpartum period for most of her adult life, Dr. Munro said that in the event of another pregnancy, Ms. Brubacher would require very intensive support. There would be, in Dr. Munro’s opinion, an “exceptionally high” risk to any infant that may be born to Ms. Brubacher.

38. Dr. Munro testified that Ms. Brubacher’s insight into the risk related to any future pregnancy is developing. Dr. Munro has extensively discussed this subject with her. Ms. Brubacher has an intrauterine device (IUD) in place, though this would not eliminate the risk of pregnancy. She is contemplating undergoing a tubal ligation.

39. In response to questions by Ms. Brubacher’s counsel, Dr. Munro expressed uncertainty as to the nature of Ms. Brubacher’s risk, with the trajectory of her illness, absent the scenario of a pregnancy.

40. Dr. Munro was asked questions concerning Ms. Brubacher’s requested transfer to St. Thomas. She could provide no information as to when such a transfer could occur but stated that if Ms. Brubacher was to be in the North Bay area for an extended period of time, the Hospital would explore with her the option of community living in that community.

41. Asked to give an opinion as to the therapeutic benefits associated with a transfer to St. Thomas, Dr. Munro stated that with such a move, Ms. Brubacher would be closer to her home, her family, and her religious community. Should she wish to gradually reintegrate into that community, she would benefit from the increased level of support available due to the shorter distance. If she were to remain in North Bay, the community reintegration trajectory could be longer due to the existing geographical limitations. Ms. Brubacher’s husband does not drive, and travel for him to North Bay is a challenge. Dr. Munro confirmed that Ms. Brubacher has no special needs that can only be accommodated at NBRHC.

42. With respect to Ms. Brubacher’s prospects of reintegration into her religious community, Dr. Munro noted that Ms. Brubacher was estranged from that community following the index offence and that the repair of that relationship has only recently recommenced, since the court’s verdict. She had been no longer welcome in her family, who did not take calls, etc. from her. Her husband was the only exception. Since the verdict, however, Ms. Brubacher has had a visit with her parents and her in-laws, along with telephone calls. For her part, Ms. Brubacher was somewhat ambivalent about her community during the NCR assessment but since returning to the Hospital, she has expressed more interest in reconnecting with her family.

43. Dr. Munro agreed with a panel member’s suggestion that the Waypoint Centre for Mental Health Care in Penetanguishene would be geographically closer to Ms. Brubacher’s home community than the Southwest Centre; however, Dr. Munro cautioned that the waitlists for a transfer to Waypoint would be lengthier.

44. No further evidence was led at the conclusion of Dr. Munro’s testimony.

Analysis and Conclusions:

Significant Threat

45. The panel has no difficulty in concluding, on all the evidence, that Ms. Brubacher represents a significant threat to the safety of the public. The evidence is compelling in this regard and this finding was expressly conceded at the hearing.

46. Ms. Brubacher suffers from a major mental illness, most recently diagnosed as Bipolar Disorder, and has experienced significant depressive symptoms and other mental health challenges dating back to her teen years. The NCR report and the Hospital Report both include a nuanced and comprehensive analysis of the relationship between Ms. Brubacher’s mental illness and the commission of the index offence.

47. While Ms. Brubacher has no history of criminal convictions, she nevertheless has a prior history of violent aggression, including actual physical assaults. While the index offence itself was serious in the extreme, with fatal consequences, it does not stand alone in her history.

48. The panel accepts Dr. Munro’s opinion evidence that the risk of harm to any infant born to Ms. Brubacher is “exceptionally high”. That opinion is amply supported by the information contained within the NCR report and the Hospital Report, reviewed earlier in these Reasons. In particular, the panel adopts the following synthesis of the situation as contained in the Risk Summary contained within the Hospital Report:

“Mrs. Brubacher experienced increasingly severe symptoms of illness with each pregnancy, and in light of her history of peripartum psychotic symptoms, it is probable that future pregnancies would result in Mrs. Brubacher experiencing psychiatric symptoms similar to, or more severe than, those she experienced prior to the index offence. Mrs. Brubacher will require ongoing counselling on the deleterious effect any future pregnancy will have on her current level of stability, with particular sensitivity to the cultural expectations of her religious community.

In order to manage the risk to the safety of others, it will be imperative that Mrs. Brubacher’s future reintegration is highly supported, closely monitored and effected in a gradual, step wise fashion. Mrs. Brubacher has expressed feelings of inadequacy and an inability to manage expectations placed upon her. If left to her own devices, Mrs. Brubacher would return to her home and community where she will likely be faced with significant stressors. Absent oversight and support, it is highly likely that such stressors would result in a decompensation of her mental status. Although generally accepting of recommended treatment, Mrs. Brubacher does have a history of unreliable adherence to medication when living in the community. It will be imperative that she have access to intensive support and monitoring to ensure her ongoing compliance outside the hospital setting.”

49. The findings above are sufficient to enable the panel to find that Ms. Brubacher represents a real and indeed a substantial risk of engaging in criminal conduct that is likely to result in very serious physical and psychological harm to members of the public. In addition, the panel is concerned with the demonstrated incidents of physical aggression in which Ms. Brubacher has engaged during past episodes of mania. It is noted that Dr. Munro expressed uncertainty with respect to the extent of Ms. Brubacher’s risk in the absence of a future pregnancy. In addition, the psychological testing prepared for the criminal responsibility assessment identified issues for further investigation, particularly around Ms. Brubacher’s ability to control her anger. Hopefully, a comprehensive risk assessment can be conducted in advance of the next review of Ms. Brubacher’s Disposition and these matters can all be addressed.

The Necessary and Appropriate Disposition

50. All parties agreed that the necessary and appropriate Disposition is a Detention Order. The panel agrees. The evidence compels the conclusion that a Detention Order is the least onerous and least restrictive available measure for the management of Ms. Brubacher’s current level of risk to public safety, in a manner that also addresses her mental condition, her significant other needs, and the objective of eventual community reintegration. At the time of the hearing, Ms. Brubacher was not ready to safely return to the community, and accordingly a Detention Order is necessary.

51. Ms. Brubacher’s situation is particularly complex, and the Hospital requires maximum flexibility to address her mental condition and other needs, including her need for the support of her husband and others in the community. That flexibility extends to the need to approve her community accommodation at such time as she is clinically ready to make that transition, and to readmit her to hospital as necessary should her risk become elevated. There is simply no air of reality to a Conditional Discharge at this early juncture, and no party suggested such a Disposition.

52. Ms. Brubacher has, on the evidence, adjusted well to the hospital environment, has presented no management concerns, and gets along well with staff and other patients. She is adherent to prescribed treatment. She is also seen as ready to exercise certain staff accompanied and indirectly supervised privileges. As it is conceivable that she could be safely returned to community living within the next reporting year, the panel is satisfied that at the discretion of the person in charge of the Hospital, she may be permitted to live in the community in accommodation approved by the person in charge. Clearly, however, as was pointed out in the extract from the Hospital Report quoted above at para. 48, it will be essential that Ms. Brubacher receive a high degree of support and close monitoring from forensic outpatient services, from whichever hospital is charged with her care.

53. Finally, the panel ordered that Ms. Brubacher be transferred to the Southwest Centre for Forensic Mental Health Care in St. Thomas. Her home community is within the catchment area of that hospital, which is geographically much closer for the purpose of facilitating family visits as well as for the purpose of staff supervised visits by Ms. Brubacher to her home community. Ms. Brubacher has no known connection to the North Bay community.

54. The panel is mindful that staff at the Southwest Centre could not provide a considered response to counsel’s letter giving notice that a transfer to that hospital would be requested. It is accordingly not possible to anticipate the length of time that the Southwest Centre would require in order to accommodate this transfer. Pending such a move, Ms. Brubacher is to be detained at NBRHC with the full range of privileges jointly proposed by the parties.

55. The panel wishes to commend Ms. Brubacher on her progress to date, including her positive relationships with both staff and patients at the Hospital. We are hopeful that pending her transfer to the Southwest Centre, Ms. Brubacher will continue to work collaboratively with her treatment team at NBRHC and will make considerable strides on her path toward healing and restoration.

56. In determining all aspects of its Disposition, the panel has sought to carefully balance the statutory factors in s. 672.54 of the Criminal Code.

DATED this 26th day of February 2025, at the City of Toronto, in the Toronto Region.

Eric Siebenmorgen

Legal Member

Office of the Registrar

Ontario Review Board