Re: Diana Kireto
ORB File No: 8389
Hearing held on: January 21, 2025
Place of hearing: Thunder Bay Regional Health Sciences Centre
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. Joel Goldenberg
Members: Hon. E. Kruzick
Dr. G. Eayrs
Dr. M. Green
Mr. A. Mete
Parties Appearing:
Accused: Diana Kireto
Counsel: Mr. D. Shannon
The Person in charge of Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Ms. S. Frenette
REASONS FOR DISPOSITION
(Dated March 7, 2025)
Introduction:
On September 20, 2023 Diana Kireto was found not criminally responsible (NCR) on account of mental disorder on a charge of criminal harassment contrary to the Criminal Code Canada (Criminal Code). Ms. Kireto is detained at the Forensic Unit of the Thunder Bay Regional Hospital Sciences Centre (TBRHSC) pursuant to a disposition of the Ontario Review Board (ORB or Board) dated February 8, 2024 and is currently under the jurisdiction of the Board.
On January 21, 2025 Ms. Kireto appeared before a panel of the Ontario Review Board at the TBRHSC for her annual hearing. Ms. Kireto attended the hearing by an audio-visual link from Geraldton, Ontario, with her partner, Larry Marszowski. Ms. Kireto was represented by her counsel, Mr. D. Shannon who attended in person. Also attending in person, the hospital was represented by Ms. M. Davidson and Ms. S. Frenette appeared as counsel for the Attorney-General.
Positions of the Parties
- At the outset of the hearing the Alt. Chair canvassed counsel for their position. Ms. Davidson indicated that the hospital’s position is that Ms. Kireto poses a significant threat to the safety of the public and submits that there be no change to the existing disposition. On behalf of the Attorney-General, Ms. Frenette agreed with the hospital’s position. Mr. Shannon, on behalf of Ms. Kireto, indicated that he agreed with the finding of significant threat and the continuation of the terms of the last year’s disposition. As a result, this was a joint submission.
Issues at the Hearing
- The issues for the Board to determine are whether Ms. Kireto is a significant threat to the safety of the public and if so, what disposition is necessary and appropriate in the circumstances.
Findings
- For the Reasons that follow, the panel found that the threshold for significant threat is met [or not], and that the necessary and appropriated disposition is a continuation of the current detention disposition.
Index Offence
- The allegations giving rise to the index offence(s) are set out in last year’s disposition and as obtained from the Ontario Provincial Police occurrence report of April 25, 2023 as follows:
“Complaint: Patricia Kireto called police to report that her daughter, Diana Kireto, is
harassing her by calling her non-stop.
Occurrence Location: 108 Beamish Avenue East.
Investigation:
On April 24, 2023, P.C. Thornton responded to a report of harassment at 108 Beamish
Avenue. Here he spoke with the complainants, Patricia Kireto and Edward Kireto, who are Diana Kireto’s parents. Diana’s daughter, Sarah Kireto-Otto, was present during initial complaint. Both Edward and Patricia were very emotional and frustrated when speaking with police about the ongoing issues with Diana. Patricia started to explain that over the last year, issues with Diana have been escalating. Diana frequently gets into disputes with her parents and they are scared of her. Patricia referenced an instance that occurred over a year ago where Diana attended their residence, forced her way into the residence and began disputing with her parents. In this instance, Diana took her parents’ phone away to prevent them from calling the police on her. Patricia informed that Diana is very strong and her and Edward are easily overpowered by her. Patricia and Edward explained that Diana constantly calls their home number for hours on end. When speaking about the constant ringing, both Edward and Patricia began to cry. It was clear to P.C. Thornton that the stress of managing Diana has had its effects on the mental wellbeing of Patricia and Edward while Edward recovers from his surgery. Both Edward and Patricia fear Diana will attend their residence and she will force her way into the home again.
On April 24, 2023, P.C. Thornton attended Diana Kireto’s residence of 125 Woodcrest, Unit Number 12. Here Diana was formally warned for harassment and was told to stop phoning her parents. Diana was upset with police and did not take the news well. P.C. Thornton informed Diana that her parents were in good health, her father was recovering from his surgery and that they needed their space from her. Diana was told that her parents would reach out to her when they are ready to make contact with her.
On April 25, 2023, Patricia Kireto called the Greenstone Detachment to inform P.C. Thornton that Diana had placed multiple calls to their home phone during the day. As a result, Diana Kireto will be located, arrested, charged, and released on a Form 10 for harassment.
On April 27, 2023, Patricia Kireto will attend the Greenstone O.P.P. detachment to provide police with an audio-visual statement on the matter. Victim Services and the Greenstone Crime Unit have been notified on the interview date.”
Background
Following Ms. Kireto’s arrest and prior to the Court’s finding of NCR, Ms. Kireto was assessed on a number of occasions by Dr. Schubert at the Thunder Bay Regional Health Sciences Centre to provide an opinion whether she suffered from a mental disorder to exempt her from criminal responsibility.
A report of July 11, 2023 was provided to the court. In that report, Dr. Schubert opined that:
“Ms. Kireto suffers from well-documented mental disorders. Ms. Kireto suffers from Intellectual Disability – Mild with evident impairments in problem solving, working memory, communication skills, insight, judgment, and a compromised ability to learn from prior experiences. Ms. Kireto also presents with a personality structure suggestive of Borderline Personality Disorder. She displays difficulties in interpersonal relationships, impulsivity, emotional dysregulation, and at times intense and inappropriate anger. Ms. Kireto has historically been diagnosed with Bipolar Disorder (or Schizoaffective Disorder – bipolar type). However, this appears less evident over the last several years (possibly due to ongoing treatment with mood-stabilizing medication, lithium.)”
At Ms. Kireto’s NCR hearing, the Court agreed with Dr. Schubert and found that Ms. Kireto’s cognition was impaired to the degree that it rendered her incapable of appreciating the quality of her actions at the time of the index offence.
Ms. Kireto is a 59-year-old woman who was exposed to trauma and adversity in her upbringing, including physical and emotional abuse from her father and intrafamilial sexual abuse involving her sister. Together with her siblings she was apprehended by the Children’s Aid Society (CAS) and placed in foster care. It was reported that she had intellectual challenges beginning in childhood.
While in her 20’s, Ms. Kireto had a relationship that resulted in her bearing a daughter. Ms. Kireto was deemed to be unfit to parent by the CAS.
Ms. Kireto has had a number of mental health admissions and involvements with the legal system arising from her inability to manage her behaviour. About 11 years ago, a cognitive assessment determined that she had impairments and symptoms consistent with Behavioural Variant Frontotemporal Dementia. At 54 years of age, a psychological assessment concluded that her symptoms were consistent with Mild Intellectual Disability.
Over the years, Ms. Kireto often relied on her former common-law spouse, Gunter Otto, who is also the father of her child. More recently Ms. Kireto relies on her partner, Larry Marszowski, to enable her to reside independently in the community. Ms. Kireto is incapable of treatment decision and decision for property and finances. Ms. Kireto’s daughter is the substitute decision maker (SDM).
Current Diagnoses
- As set out in the Hospital Report, Ms. Kireto’s diagnoses are:
Intellectual Disability – Mild
Bipolar I Disorder
Borderline Personality Disorder
Evidence at the Hearing
The Hospital Report dated December 6, 2024 was made an exhibit at the hearing. The Board also heard the oral evidence of Dr. Schubert. He co-authored the Hospital Report and adopted its contents. As such, in these Reasons, the Hospital Report will only be referred to briefly.
Dr. Schubert testified that Ms. Kireto had been living in Longlac, Ontario with her partner, Larry Marszowski. They recently moved to Geraldton, Ontario. The current disposition provides for discretionary privileges up to and including to reside in the community of Northwestern Ontario.
Since her initial ORB hearing Ms. Kireto has been assessed on a weekly basis by her Forensic Case Outpatient Manager, Mr. McGuire. In addition, she had the local support from Developmental Services Ontario (DSO) Adult Protective Services (APS) worker Ms. Barrett.
On March 4, 2024 Ms. Kireto was admitted to the Geraldton Hospital. On March 6th Ms. Kireto attended a psychiatric assessment with Dr. Schubert conducted by the Ontario Telemedicine Network (OTN). The assessment followed her admission to the Geraldton Hospital given concerns raised by her outpatient case manager, Mr. McGuire.
Dr. Schubert remarked that during his assessment of Ms. Kireto in March, 2004 she appeared anxious and requested to be assessed alone. The request was accommodated. Ms. Kireto informed Dr. Schubert that her partner, who was in initially in the interview, makes her nervous. She informed Dr. Schubert that she and Mr. Marszowski were in a relationship but were not romantic partners even though they shared the same bed, and she relies on him.
Ms. Kireto’s parents are the victims of the index offence. They live in Geraldton, Ontario. Ms. Kireto informed Dr. Schubert that during this period in March, 2024 she stayed with her parents overnight notwithstanding the terms of the ORB Disposition of no contact with them. Dr. Schubert informed the Board that the Hospital did not have consent in writing from the parents, but that Ms. Kireto’s parents had given verbal consent for the contact.
On March 8, 2024, Ms. Kireto was brought to and admitted to the Geraldton District Hospital by the OPP. The Hospital Report sets out the following notes authored by attending physician, Dr. T. Desruisseaux:
"Ms. Kireto was brought into the Geraldton District Hospital Emergency Department via
the OPP after an earlier attempt to be brought in by her friend Larry who she permanently resides with in the community. Initially her friend Larry had brought her in with concerns of well-being and to finding out Ms. Kireto had not taken her medication for at least two days. She was staying with her parents for the last two days and had mentioned to her friend that she forgot her medications and believed that she no longer required them, having not taken them for the past two days. It's been told to me that she was visiting her parents.
Report from the OPP indicates that she unfortunately had flooded her parents' apartment and had punched a window and sustained a laceration to her right hand as a result of broken glass. Her friend indicates that she was "scary" when she doesn't take her pills. He believes that she's unstable when she says things such as wanting to go to her ex's house and raising her voice, he knows that she is not herself at this time.
When speaking with Diane directly she doesn't understand why she was brought to the hospital and states that she is aware that she should be taking her medication but doesn't feel that she needs them. She also indicates that the friend that she resides with is "controlling". 'He doesn't want me to say hi to certain people. I can't go back to him.' She indicates that 'I can't sleep because he turned on a light in the night.'”
Ms. Kireto was subsequently detained in hospital under a Form 1 of the Mental Health Act (MHA) and subsequently transferred to the TBRHSC where she was detained pursuant to the ORB detention order.
On March 12, 2024 Ms. Kireto was transferred to the Secure Forensic Wing of the TBRHSC.
On April 9, 2024 the ORB conducted a restriction of liberties hearing (ROL) where the Board found the restriction warranted and the least onerous and restrictive. Following the hearing, Ms. Kireto remained in hospital.
While in the hospital Ms. Kireto continued to show evidence of being in a manic state. She was noted to be irritable, intrusive and perseverative. She was noted to be easily agitated and emotionally labile. The hospital noted on July 21, 2024, unusual hoarding of items in her room which had to be frequently cleared out. She was also noted to be sexually disinhibited and inappropriate with both male and female patients and staff. As an example, Ms. Kireto was observed massaging her breasts or exposing them to the staff and patients while making inappropriate sexual comments.
As her symptoms improved Ms. Kireto engaged in activities at the hospital. These included the Blue Sky Indigenous programming, occupational therapy, cooking, gardening groups and working with the behavioural and recreational staff.
Despite these improvements, Ms. Kireto continued to display oppositional behaviour with the staff and became easily agitated when she perceived her needs were not being met. The incidents are set out in detail at pages 18 and 19 of the Hospital Report. An incident on July 18, 2024 resulted in a Code White when Ms. Kireto refused to follow directions and her agitated state could not be controlled and shouted obscenities at the staff.
While in the hospital she enjoyed the visits of her daughter who is her SDM, her former partner Gunter Otto and her partner, Mr. Marszowski.
On August 15,2024, following a hospital team meeting with Ms. Kireto’s SDM, it was determined that the hospital team would make another attempt for Ms. Kireto to reside in the community and return to Longlac. Since that discharge from the hospital Ms. Kireto has lived with her partner, Mr. Marszowski, first in Longlac, and more latterly in Geraldton, Ontario where he is working and where they reside with Mr. Marszowski’s mother.
Ms. Kireto is assessed on a weekly basis by her case worker by telephone. She also has virtual assessments by OTN with Dr. Schubert. While Dr. Schubert testified to some difficulty in compliance with the scheduled meetings he noted that this has improved.
While Ms. Kireto reports full compliance with her prescribed medication, she has denied repeated requests by the hospital team for her to attend at the clinic to have her lithium level completed. Since her discharge from the hospital in August, 2024, Ms. Kireto has submitted urine screening samples which have been negative for substance abuse and show the presence of her prescribed antipsychotic medication.
Dr. Schubert testified that Ms. Kireto’s insight into her illness and the benefit of her medication controlling symptoms of her mania is particularly poor. She will often state that she doesn’t believe she needs to take the medication which is concerning. Both she and her partner have been provided education during the virtual sessions on the requirement of the prescribed medication. Dr. Schubert stated that the effort into education appears to have paid off.
With the consent of her parents, Ms. Kireto’s contact with her family has been good. There has been no reported problem with respect to their interactions.
Counsel for the Attorney-General asked Dr. Schubert about Ms. Kireto’s compliance with urine screening pursuant to 3(b) of the Detention order. Dr. Schubert stated that while Ms. Kireto has had difficulty in the past, since the Hospital Report was prepared Ms. Kireto has been compliant. The most recent hospital records show four regular screenings: two in December 2024 and two in January 2025.
In response to a question from Mr. Shannon about his assessments of Ms. Kireto, Dr. Schubert stated he has monthly appointments scheduled by video conferencing and her case manager has weekly contact by telephone.
In response to questions from the Board about Ms. Kireto’s contact with her parents, Dr. Schubert indicated that, with their consent, things are going well in that relationship. Her parents are in their 90’s and the contact seems to benefit Ms. Kireto as does the contact she maintains with her daughter and her partner’s mother.
When asked about Ms. Kireto’s relationship with her partner, Dr. Schubert expressed that Mr. Marszowski is aware of Ms. Kireto’s need for medication and that he has been a part of the education provided by the hospital. When asked about the move to Geraldton, Dr. Schubert indicated the move from Longlac was made for better opportunities and family contact. Mr. Marszowski works in Geraldton. With respect to Ms. Kireto’s relationship with her partner, while there are issues in the past, the relationship appears to be better.
No further evidence was called.
Submissions
- After hearing the evidence counsel informed the Board that this remained a joint submission. It was agreed that Ms. Kireto continues to pose threat to the safety of the public. As to disposition counsel were in agreement that detention was necessary and appropriate with the same terms and conditions as set out in last year’s order.
Analysis
The Board accepts Dr. Schubert’s opinion that Ms. Kireto continues to pose a significant threat to the safety of the public public within the meaning of s.672.5401 of the Criminal Code.
The Supreme Court of Canada, in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 62, referred to a significant threat as: “[A] real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying. The conduct giving rise to harm must be criminal in nature”. Justice McLachlin made it clear in Winko that the threshold of significant threat is a “relatively high” one. She said at para. 69, that “the phrase conjures a threat of threat to public safety of sufficient importance to justify depriving a person of his or her liberty”.
In considering all the evidence, the panel is unanimous on the threshold question of significant threat to the safety of the public. When Ms. Kireto is not compliant with her medication, the evidence supports that Ms. Kireto poses risk to her parents, the victims of the index offence, which requires oversight and management by the hospital team. The structure that has been put in place is made bearing in mind Ms. Kireto’s criminal history. More recently, Ms. Kireto’s behaviour and conduct with the hospital staff and patients during the period of hospitalization in the past reporting year, as referred to in the evidence of Dr. Schubert, is particularly concerning. It reinforces that the risk is real of her committing a serious criminal offence.
We accept Dr. Schubert’s expert evidence that risk associated with Ms. Kireto is primarily related to her limited cognitive capacity and her lack of insight into her condition. Given Ms. Kireto’s legal history which include convictions of Failure to Obey Conditions, Forcible Confinement and Resist a Peace Officer the level of risk is reasonably high.
Since the Board finds that Ms. Kireto poses a significant threat to the safety of the public, it must make a disposition for the forthcoming year. In doing so we must bear in mind the paramount consideration of the safety of the public and take into account the needs of Ms. Kireto.
In considering the evidence, the Board finds that detention on the same terms as last year’s disposition is necessary and appropriate in the circumstances. When considering what is necessary and appropriate our consideration included considering the least onerous and least restrictive while still protecting the safety of the public.
Conclusion
In our opinion, Ms. Kireto’s residence in the community, requires the same Detention Order put in place last year. Mindful of the events of this past year, should the need arise, the hospital should have the authority to return her quickly to the Hospital to ensure safety to the public.
On the evidence at this hearing, the Board has no difficulty in accepting the parties’ joint submission that the necessary and appropriate disposition is a Detention Order containing the same terms and conditions as found in last year’s Disposition.
DATED this 7th day of March 2025, at the City of Toronto, in the Toronto Region.
Emile Kruzick
Legal Member
Office of the Registrar
Ontario Review Board