Re Andre Baez-Thoonen, 2025 CanLII 21207

Re: Andre Baez-Thoonen

ORB File No: 8670

Hearing held on: January 28, 2025

Place of hearing: Southwest Centre for Forensic Mental Health Care

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

Before:

Alternate Chairperson: Ms. T. Mann

Members: Dr. A.D. Jones Dr. H. Moulden Ms. K. Tomaszewski Ms. C. Plyley

Parties Appearing:

Accused: Mr. Andre Baez-Thoonen Counsel: Mr. C. Dobson

The Person in charge of Hospital: Counsel Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Mr. D. Rows

REASONS FOR DISPOSITION

(Dated March 5, 2025)

Introduction:

1. The accused, Andre Baez-Thoonen, was found not criminally responsible (“NCR”), on October 16, 2024, on a charge of arson causing property damage, contrary to section 434 of the Criminal Code (“Code”).

2. The Honourable Court did not make a disposition and remitted the matter for a hearing before the Ontario Review Board (the “Board” or “ORB”). Mr. Baez-Thoonen has been living in the community since the index offence which occurred on November 27, 2021. On December 6, 2024, an Assessment Order was made by the ORB to conduct an assessment of his mental condition on an outpatient basis and provide a report in writing to the ORB.

3. On January 28, 2025, a panel of the Board convened a hearing at Southwest Centre for Forensic Mental Health Care (the “hospital”) to conduct an initial hearing pursuant to section 672.47(1) of the Code. The issues to be determined by the Board were whether Mr. Baez-Thoonen constituted a significant threat to the safety of the public as defined in section 672.5401 of the Code and, if so, what was the necessary and appropriate disposition which was also the least onerous and least restrictive taking into account the factors set out in section 672.54 of the Code.

4. Mr. Baez-Thoonen was present at the hearing, and was represented by his counsel, Mr. C. Dobson.

5. The Board had available to it the Record; the Out of Custody Risk Assessment Report dated January 9, 2025 (Exhibit 1) (the “Report”); and the oral testimony of Dr. Ajay Prakash.

Position of the Parties:

6. At the outset of the hearing the parties were canvassed as to their initial positions. Counsel for the hospital submitted that Mr. Baez-Thoonen represents a significant threat to the safety of the public, and the necessary and appropriate disposition is a detention disposition with various restrictions including a prohibition on cannabis use and including privileges up to and including living in the community of Elgin and Middlesex County in accommodation approved by the person in charge.

7. Counsel for the Attorney General adopted the hospital’s position.

8. Counsel for Mr. Baez-Thoonen conceded that Mr. Baez-Thoonen represents a significant threat to the safety of the public but submitted that the necessary and appropriate disposition is a conditional discharge with no prohibition on cannabis use.

Findings:

9. For the Reasons that follow, the Board finds that the threshold for significant threat is met, and that the necessary and appropriated disposition is a detention disposition with the terms and conditions proposed by the hospital, with the exception that Mr. Baez-Thoonen be required to report no less than four times per month, rather than no less than two times per month as recommended by the hospital.

Index Offence:

10. The circumstances giving rise to the index offence are set out in the Report (as taken from the Court’s October 16, 2024, Transcript), and summarized as follows:

November 27, 2021, Mr. Baez-Thoonen was at his residence, alone. Shortly after 8:30 a.m., he contacted a mental health crisis line and spoke with an employee there. Mr. Baez-Thoonen stated to the employee, "I started a fire in my apartment, and I have concerns for my neighbours." The employee, surprised by what she heard, confirmed that Mr. Baez-Thoonen stated that he had started the fire. She requested that he leave the apartment and contact police. He refused and stated he didn't want to leave and wanted to watch it burn. While speaking with Mr. Baez-Thoonen, the employee described moments of silence interrupted by Mr. Baez-Thoonen laughing.

The employee had a co-worker contact 911 while she remained on the line.

At 8:37 a.m. emergency personnel were dispatched to 173 Elgin Street in relation to the fire. At 8:49 a.m. officers located Mr. Baez-Thoonen hiding in the shed behind the house. He was shirtless and appeared to be timid and fearful. Mr. Baez-Thoonen was arrested for arson.

The officers asked him why he started the fire. He disclosed that he was going to stay in the apartment and had dumped gasoline on his sweater to start it. At that time, the officers had concerns for the mental health of Mr. Baez-Thoonen and determined the best course of action would be to apprehend him under the Mental Health Act.

At 10:07 a.m. Dr. Chetan Uppal assessed him and admitted him to hospital on a Form 1 under the Mental Health Act. As a result, Mr. Baez-Thoonen was released from custody and into the care of the London Health Sciences Centre of Victoria Hospital. Because he was apprehended under the Mental Health Act he was charged by way of summons. There was an estimated $100,000 damage to the residence. The owner of that residence was a James Thoonen.

Background and Psychiatric History from the Report:

Background

11. Mr. Baez-Thoonen was born and raised in London, ON. His family structure at birth included his mother, father, and an older brother. He is second in a sib-line of two. He generally endorsed reaching developmental milestones at age-appropriate intervals and recalled having a speech impediment requiring speech therapy in grade three. His parents separated when he was in approximately grade two.

12. Mr. Baez-Thoonen stated that his relationship with his mother in childhood was “good really close because of the separation (between his parents).” When asked, he stated that his relationship with his mother became strained in adulthood.

13. Mr. Baez-Thoonen stated that his relationship with his father in childhood was “difficult” and added that prior to the age of 16 he would see his father a “couple days a week”. After the age of 16, when living with his father, Mr. Baez-Thoonen stated that his father “…would be working a lot”, and that he would be home alone “a lot”. In adulthood, Mr. Baez-Thoonen stated that his relationship with his father continued to be difficult, “not so good...its hard for me to be around him. I get bad memories, bad reminders (from experiences during childhood), but he has been helpful recently...since the offence (in question).” Overall Mr. Baez-Thoonen stated that his father was “good” and that “he provided” the best he could.

14. When asked about his relationship with his brother during childhood, Mr. Baez-Thoonen stated, “we would hang out a lot and smoke weed together. When I was 19 I stopped talking to him; he was abusive when I was younger, those memories came up”.

15. On admission to the London Health Sciences Centre on November 26, 2021, Mr. Baez-Thoonen described “multiple episodes of sexual assault by friends, his classmates, and his friend’s parents”.

16. After completing grade 12, Mr. Baez-Thoonen was hired as a bricklayer apprentice for six months. Following this, he took a year off and worked in Hamilton with a construction company for approximately two months. At the age of 18 Mr. Baez-Thoonen went to Fanshawe College, into a general arts and science program, and completed “a few weeks” of schooling.

17. At 19 years of age, Mr. Baez-Thoonen worked at a landscaping company for one summer with his brother. When asked how the job went, Mr. Baez-Thoonen stated, “not so good. I didn’t communicate with my brother, but we got the job done. Weed was the only thing keeping us together.” Shortly after this, Mr. Baez-Thoonen travelled to Nova Scotia for three months. While there, he lived briefly with his aunt, and he spent some time on a ranch taking care of horses.

18. At 20 years of age, Mr. Baez-Thoonen returned to London from Nova Scotia, and moved back in with his mother. After returning to London, Mr. Baez-Thoonen worked as a cleaner at Walmart for one to two months. When asked how the job was, Mr. Baez-Thoonen stated that his mental health was poor, “I was thinking weird thoughts, I thought they were trying to mess with me, I didn’t like the routine they had for me, it didn’t make sense. People kept on dropping stuff and I thought they were doing it on purpose.” Mr. Baez-Thoonen stated that he quit because of these issues and other fears of his “money being taken away.”

19. Mr. Baez-Thoonen recalled having “bad feelings with my mom and her fiancée Richard,” so he moved back in with his father. During this time, he acquired a job as a furniture mover (through the furniture company Tepperman’s) and worked for one to two months. He stated that he injured his neck and back on the job and quit this job.

20. Mr. Baez-Thoonen was hired on by LiUNA as a dry wall apprentice. He reported that he “went for my first day, it was not good, the guy was unsafe, he was telling me to move the scaffolding while he was on it.” Mr. Baez-Thoonen stated that there were other safety issues and also believed he was being asked to do work he was not trained in. He did not return after the first day.

21. At that time, Mr. Baez-Thoonen did not have any financial obligations e.g., no rent, food, or bills. He recalled having an overdrawn credit card of approximately $700, requiring a re-payment plan which he was able to do, partly with his father’s assistance.

22. At the time of the offence, Mr. Baez-Thoonen lived with his father but had also spent some time at his mother's place. He had lived with his father for approximately six months before the offence. He also lived with his aunt in Nova Scotia. When asked what the arrangement was regarding his living with his father in London, Mr. Baez-Thoonen explained that he moved in with his father "because of emotions; there was poisoning going on."

23. When asked about his childhood, Mr. Baez-Thoonen endorsed being known as a liar, “I think I am sort of a compulsive liar”, endorsed breaking and entering, “they were on vacation and some other kids destroyed it and peed everywhere, and stole stuff. I just went in there and looked and left, it was gross”. He endorsed stealing from a variety stores “a few times”, and endorsed fire setting, “we would do that a lot...my brother and I and kids on the complex…setting fire in the ravine”. He endorsed being involved in physical fights, “fighting people, kids in the complex, but it was friends fighting...” and denied any hospitalization or police involvement.

24. Since the date of the index offence, November 27, 2021, Mr. Baez-Thoonen has continued to reside in the community at various locations in London including group homes, independent apartments, and with family. Mr. Thoonen’s housing has been unstable.

25. Mr. Baez-Thoonen has been in a relationship with a partner he met through the Canadian Mental Health Association (CMHA) housing program since approximately October 2023. He has one child from this relationship, a daughter born on October 26, 2024. The daughter lived with Mr. Baez-Thoonen and his partner for approximately one month after birth, at which time the Children’s Aid Society (CAS) was involved, and the daughter now resides with Mr. Baez-Thoonen's mother as per their direction.

26. Mr. Baez-Thoonen has no criminal history, apart from the index offence.

Psychiatric History

27. Mr. Baez-Thoonen has been diagnosed with schizophrenia. Dr. Prakash testified that he has also diagnosed Mr. Baez-Thoonen with substance use disorder (cannabis).

28. Mr. Baez-Thoonen began to struggle with mental health issues at 19 years of age. When living with his girlfriend “[he] was having weird episodes, I thought people were outside trying to get me, I thought they were trying to jump me...it was in the ghetto so maybe it was true”. Mr. Baez-Thoonen stated that these experiences would come and go, “fine for a little bit, then just randomly come back”. Mr. Baez-Thoonen stated that during this time he was using cannabis and psilocybin (magic mushrooms), “it could have been the drugs I took”. Mr. Baez-Thoonen stated that he was using psilocybin “whenever I could get it…the weekends”, and two to three grams of cannabis a day”. As well, during this time he believed that the food at his mother’s home was poisoned.

29. “I would stay secluded, I would see my friends less and less”. “I felt off, I was paranoid about the Tepperman’s people (furniture company where he worked as a mover) and I thought they would kill me”. When having these experiences Mr. Baez-Thoonen noted that there was evidence to support his beliefs, “there was a guy who was yelling at me all the time, a sketchy guy”.

30. During his time in Nova Scotia while at the horse ranch, Mr. Baez-Thoonen stated, “I started thinking they were going to kill me (owners of the ranch), and that’s when I started thinking I want to go home”. He recalled not wanting to enter the ranch owner’s home for meals, “I thought they would kill me and bury me on their property”.

31. As noted in the London Health Sciences Centre, mental health admission note, date of admission November 26, 2021, Mr. Baez-Thoonen at first denied having any prior psychiatric admissions however upon further questioning, “disclosed that when he was living with his aunt in Nova Scotia he was sent to the hospital for having homicidal ideation regarding his aunt and her significant other. He was given some benzodiazepine (anti-anxiety medication) in the hospital; however, unsure which one. He reported homicidal ideation towards his aunt and her significant other involving the use of propane, however, he did not disclose further details”.

32. On April 12, 2022, Mr. Baez-Thoonen met with Dr. Julie Richard of the Prevention & Intervention Early for Psychoses Program (PEPP) after being referred by his family physician, Dr. Mario Elia, after two admissions at London Health Sciences Centre (LHSC) in late 2021. Dr. Elia had been doing his antipsychotic injection (25mg Risperdal Consta every two weeks) in his office which resulted in improvement of his symptoms. Mr. Baez-Thoonen continues to be followed by Dr. Richard and PEPP.

33. Since the index offence in 2021, Mr. Baez-Thoonen has presented numerous times to the Emergency Department at Victoria Hospital in London, Ontario for complaints of increased psychotic symptoms, suicidal ideations, and/or having nowhere to go. Many of these ED visits resulted in admissions to the inpatient short stay psychiatric unit, as noted below.

34. On November 5, 2022, he brought himself to hospital due to concerns of worsening paranoia and anger management. He was placed on a Form 1 by the Emergency Department (ED) after he expressed that he hurt himself while punching the walls and that he was unsure if he would be safe if he returned home. He had a previous diagnosis of schizoaffective disorder in the context of persecutory paranoid delusions. He had been off his Rexulti and Wellbutrin since July 2022 and had recently increased usage of DMT (mushrooms via vape), cannabis, and mushrooms. He was admitted to a PICU bed for re-initiation of medication and stabilization of psychosis symptoms. He was discharged November 28, 2022, back to his mother’s house, to be followed by Dr. Richard in PEPP and to be connected with the YOU youth shelter.

35. On December 1, 2022, Mr. Baez-Thoonen was admitted to LHSC after he came to the ED voluntarily several times during the evening and night of November 29, 2022. He did not wait long enough to be admitted or seen by an Emergency physician. In the morning of December 1, 2022, the PEPP team called Mr. Baez-Thoonen back to the ED, so that he could be admitted. A Form 1 was completed given his impulsivity and leaving the ED multiple times the night before. He came to hospital because of issues with housing and perhaps some residual psychosis, although this was unclear. He was discharged on December 2, 2022.

36. On December 6, 2022, Mr. Baez-Thoonen presented at the ED reporting a very difficult 48 hours. He felt very unsafe in community housing, feeling that people were wanting to cause him harm. He was admitted to the short stay unit for stabilization under a Form 1 given his impulsive changes in plans and lack of a clear safety plan at the time. He was discharged to his uncle's place on December 13, 2022.

37. On June 7, 2023, Mr. Baez-Thoonen met with Dr. Richard. He was referred to Addiction Psychiatry for help with his cannabis use. He reported that he had occasional thoughts/concerns of people breaking into his apartment, so he had been keeping his door locked. When he moved, he also lost his bottle of paliperidone 6mg tablets and was waiting until this appointment to ask about getting a new bottle. He had not taken his paliperidone for roughly one week.

38. On July 31, 2024, Mr. Baez-Thoonen met with Dr. Richard. It was noted that he had not filled his medications since late April, but he assured her he had an extra bottle at home. However, he admitted to missing a few days a month. He was urged to consider returning to a long-acting injection (LAI) but stated he didn’t like the pain with it but that he would consider it once his baby arrived given the stress that he will endure. He was informed that his type of major life change (having a baby) was a high risk for relapse.

39. On November 15, 2024, Mr. Baez-Thoonen met with Dr. Richard. Overall, he was struggling significantly with his mood but there were no acute safety concerns. There appeared to be significant stressors around the baby being born (October 26, 2024) as well as financial, legal, and family stressors. Restarting an antidepressant was discussed as he had utilized them in the past. He was agreeable with starting Wellbutrin 150mg daily.

40. Mr. Baez-Thoonen currently resides in a house where he rents a room with his partner. Five other people live in the home. There is drug use by other residents in the home, therefore it is unlikely that this accommodation would be approved. He and his partner have their own bedroom and bathroom but share the kitchen and living room. They have lived there since April 2024. He noted a variety of minor concerns e.g., thin walls, lack of privacy, and the smell of other people's cooking. Mr. Baez-Thoonen has been actively looking for other places and noted that his partner’s workers via Community Living can help them find a place.

Substance Use History:

41. The following information was taken from the Report at page 8, quoting from the NCR Report dated January 28, 2024, and authored by Dr. Ajay Prakash:

Mr. Baez-Thoonen stated that his drug of choice was cannabis. At the time of this report he was vaping cannabis THC oil, using approximately one gram (roughly equivalent to three grams of cannabis leaf), over a three-day period. He stated that he began to use cannabis at twelve years of age, and at most was using two grams a day. He noted having withdrawal symptoms when stopping, urges when reducing his use, and believed that cannabis negatively impacted his mental health e.g., lack of motivation and drive.

Mr. Baez-Thoonen stated that he has tried MDMA “a dozen times”, psilocybin approximately thirty times, LSD approximately twice, crystal methamphetamine once, and cocaine approximately a dozen times. At the time of this report, Mr. Baez-Thoonen stated that he was only using cannabis. Mr. Baez-Thoonen stated that he had a very negative experience when he used crystal methamphetamine, “I freaked out, got kicked out of my moms, then went to the hospital”.

As noted in the London Health Sciences Centre, mental health admission note, date of admission November 26, 2021, Mr. Baez-Thoonen stated that he began using cannabis at age 12. He stated that his use of cannabis varied throughout the years, however, at most he smoked cannabis “until I pass out”. Mr. Baez-Thoonen denied current alcohol use and stated that he quit in 2019. Mr. Baez-Thoonen endorsed “snorting” heroin in high school as well as “snorting” cocaine at the age of 18, however, “stopped because he said his heart almost stopped”. Mr. Baez-Thoonen denied using any other substances.

Evidence at the Hearing:

42. Dr. Ajay Prakash, Mr. Baez-Thoonen’s assessing psychiatrist, adopted the contents of the Report. Dr. Prakash told the Board that he had assessed Mr. Baez-Thoonen and had prepared an NCR Report in 2024 for the Court and had again assessed him and prepared the Report dated January 9, 2025. Dr. Prakash has not seen Mr. Baez-Thoonen since that date.

43. Dr. Prakash told the Board that Mr. Baez-Thoonen’s static risk factors are low. He has been living in the community since the index offence in 2021. He had no criminal record prior to the index offence and has had no criminal charges or involvement with the police since.

44. However, the doctor pointed out that all dynamic risk factors are present and relevant, and the HCR-20 (V3) indicates a moderate risk of violence under a detention disposition (with community living) and a higher risk under a conditional discharge.

45. Mr. Baez-Thoonen has a primary mental disorder, schizophrenia, and two psychiatrists (Dr. G. de Amorim Levin, and Dr. Ajay Prakash) have also diagnosed him with substance use disorder (cannabis). He currently uses cannabis frequently; used cannabis at the time of the index offence; and since 2021 has used cannabis prior to various hospital admissions. In the past, he has used other drugs as well.

46. Currently, Mr. Baez-Thoonen uses caffeine pills and energy drinks.

47. In the doctor’s opinion, the use of cannabis destabilizes Mr. Baez-Thoonen, increasing paranoia and instability, and leading to several hospitalizations since the index offence.

48. Dr. Prakash acknowledged Mr. Baez-Thoonen’s efforts and stated desire to reduce cannabis use, but remained of the opinion that use of cannabis (and any other substances) is a continuing risk factor. Mr. Baez-Thoonen has not yet engaged in a treatment program for substance use.

49. For these reasons, the hospital recommends including a prohibition on the use of cannabis in the Disposition.

50. Mr. Baez-Thoonen has a good personal support system in his partner, but stressors include mental health struggles (for both Mr. Baez-Thoonen and his partner); a new baby; financial struggles; and housing instability.

51. Mr. Baez-Thoonen has the support of Dr. Richard and the PEPP team and has responded well to oral Invega. However, Mr. Baez-Thoonen has not been fully adherent to his oral medication regime.

52. Mr. Baez-Thoonen is capable to consent to treatment with antipsychotic medications and has declined the long-acting injectable form of the medication. He has ongoing paranoia about the injection and thinks that the injection will harm him. Dr. Prakash referred to page 19 of the Report, where Mr. Baez-Thoonen is quoted as saying, "I am paranoid about the injection and it hurts...I think when someone is going to give it to me, I think they are going to put a bubble in there".

53. In short, it was Dr. Prakash’s evidence that Mr. Baez-Thoonen’s symptoms are ‘close to the surface’; he misses doses; and uses cannabis.

54. Mr. Baez-Thoonen’s insight is still developing across all spheres. He continues to grapple with whether his symptoms result from a primary psychotic illness or are drug-induced. Dr. Prakash referred to page 18 of the Report: When discussing his need for medications, Mr. Baez-Thoonen was able to identify his current medications but stated, "personally I would just stop...I don't know...I don't know if it’s mental illness or just drug use".

55. Mr. Baez-Thoonen stated that he believes his past violence was related to drug use, specifically crystal methamphetamine. Dr. Prakash pointed to page 18 of the Report: He stated that he may relapse into crystal meth use "when I get depressed, like a slow suicide type of thing...I hope I don't, I would rather be healthy than being a drug addict".

56. Mr. Baez-Thoonen stopped his Wellbutrin after taking it for only about a month, without consulting medical professionals. Dr. Prakash referred to page 19 of the Report: He stated, "it made me go to bed early and gave me more energy without caffeine, I was doing a lot of caffeine, the Wellbutrin gave me more energy which was good, but then I hurt my neck and began using cannabis and I didn't want to do both...I think the benefits of the cannabis blocked the benefit of the Wellbutrin".

57. Dr. Prakash, with his usual candour, admitted that deciding between a conditional discharge and a detention disposition was challenging, given there were advantages and disadvantages to both, but in the end, came down firmly on recommending a detention disposition.

58. Dr. Prakash stated that from a community-mental health perspective, Mr. Baez-Thoonen is doing well, but he is not doing so well when his symptoms and behaviours are looked at from a forensic risk-management perspective.

59. Dr. Prakash told the Board that a Warrant of Committal (“WOC”) is necessary to enable the hospital to bring Mr. Baez-Thoonen to the hospital expeditiously. Dr. Prakash indicated that because Mr. Baez-Thoonen is capable to consent to treatment, the criteria under Box A of the Mental Health Act (MHA) would have to be met to keep Mr. Baez-Thoonen in hospital involuntarily. These criteria are difficult to meet and would be met only after Mr. Baez-Thoonen had reached an unacceptable risk level.

60. Dr. Prakash acknowledged that Mr. Baez-Thoonen had brought himself to the hospital voluntarily on several occasions. Dr. Prakash noted that he had also left the hospital on various occasions prior to being seen by a doctor, and that he had been subject to a Form 1 on more than one occasion. In the doctor’s opinion, Mr. Baez-Thoonen’s risk for violence is high when there is a critical presentation to hospital, and at that point it is important that he not leave without being seen.

61. On the one hand, Mr. Baez-Thoonen is to be commended for seeking support. On the other hand, the quality of support is much higher under a WOC. Mr. Baez-Thoonen needs external supports and supervision to progress.

62. Dr. Prakash stated that he is concerned about the least restrictive and least onerous disposition from a health care perspective. If Mr. Baez-Thoonen is admitted to hospital under a Detention Disposition, it will alter life as Mr. Baez-Thoonen has known it so far. It will have a potential impact on his housing and on his relationships. However, because the forensic system will expect much more from Mr. Baez-Thoonen than the civil system has so far, there are potential long-term benefits because the team will be able to support him to address addictions; assess mental health issues more comprehensively; and optimize medications.

63. With respect to housing, PEPP has access to the same resources as the hospital. It is not as urgent that the hospital approve accommodation because of PEPP support, but without PEPP support, the hospital will need to be able to approve accommodations, particularly to support Mr. Baez-Thoonen in his management of substance use.

Closing Submissions:

64. All parties maintained their initial positions.

65. Ms. Zampgrogna submitted that Mr. Baez-Thoonen posses a significant threat to the safety of the public, and this threat needs to be managed by a detention disposition. He has a history of housing instability. He has a diagnosis of a major mental disorder and substance use disorder. He has continued paranoia and affective instability. He sometimes has thoughts of hurting someone when he cannot cope with stress. His insight is underdeveloped, and he is not fully compliant with his prescribed medications. He engages in substance use. Cannabis is connected to instability and paranoia, therefore an abstain clause should be included in the disposition. He has not fully engaged with his outpatient psychiatrist. Because he is considered to be capable to consent to treatment, the MHA is not sufficient to manage his risk. He has made no progress in dealing with his mental health and addictions.

66. Ms. Zamprogna also submitted that the fact that Mr. Baez-Thoonen has had only one criminal offence must be regarded with caution. It was a significant offence and occurred within months of the onset of psychotic conditions. Mr. Baez-Thoonen had no time to develop a criminal record. A conditional discharge is not realistic. Public safety is the paramount consideration. This requires a detention disposition.

67. Mr. Dobson submitted that the least onerous and least restrictive disposition is a conditional discharge. It is possible to provide for Mr. Baez-Thoonen’s liberty interests under either type of disposition, but the hospital does not need to approve Mr. Baez-Thoonen’s accommodation.

68. Mr. Baez-Thoonen has been partially engaged in his treatment. He has reached out for help in the form of hospital visits and has returned to the hospital when advised to do so by PEPP. He has followed instructions to take his medications. He takes medications on a reliable basis. He is motivated to seek help and abstain from substances, and with the team’s support he can achieve this. He does not need an abstain clause. There is no evidence that his use of cannabis creates a significant threat. Although Mr. Baez-Thoonen uses cannabis daily, he states he will stop.

69. It has been four (4) years since the index offence and Mr. Baez-Thoonen has lived in the community without problematic behaviours despite regular use of cannabis. He has voluntarily engaged in treatment and follow-up with PEPP and seeks help when he feels overwhelmed by his symptoms.

70. However, if the Board orders a detention disposition, that gives Mr. Baez-Thoonen a year to show the team what he can do, and the team will still have the ability to return him to hospital if that is necessary.

71. Mr. Rows, for the Attorney General, agreed with Ms. Zamprogna’s submissions.

Analysis and Conclusion:

Significant Threat to the Safety the Pubic:

72. The Board must determine if Mr. Baez-Thoonen is a significant threat to the safety of the public. For completeness, we set out the legal test which must be applied.

73. Parliament has defined that term in s. 672.5401 of the Code to mean “a risk of serious physical or psychological harm to members of the public...resulting from conduct that is criminal in nature but not necessarily violent.” Public safety has been determined by Parliament to be the paramount consideration. Thus, by the words chosen, the level of harm which could be created must be significant, not minimal or a mere annoyance.

74. The Supreme Court decision in Winko remains instructive as to how to interpret this section. A risk must be real and objectively supportable, not remote, theoretical or exist only due to one person’s fears. (See: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] S.C.J. No. 31, at paras. 57, 62).

75. Further, the Board must determine if, at the time of the hearing, the evidence has established a risk of serious harm. It is not sufficient that, at some time in the future, the subject person could commit other, unspecified offences. Nor is it sufficient that at some time the subject will make a decision which is deleterious to his own mental health or stability. As stated by McLachlin, J. (as she then was) at para. 69:

“It is for the court or Review Board, acting in an inquisitorial capacity, to investigate the situation prevailing at the time of the hearing and determine whether the accused poses a significant threat to the safety of the public. If the record does not permit it to conclude that the person constitutes such a threat, the court or Review Board is obliged to make an order for unconditional discharge.”

76. The Court of Appeal has also emphasized that the test to be applied is stringent, and there must be both a likelihood of risk materializing and the likelihood of serious harm occurring. Speculation as to the level of risk is not sufficient, and the risk of a mental health relapse is not congruent with the standard to be applied and cannot justify detention. It is recognized that the absence of violent behaviour in itself does not eliminate the risk of significant harm to the public. Similarly, lack of insight into the index offences, the discontinuation of medication and substance abuse are all factors to consider (See: Re: Sheikh, 2019 ONCA 692; Re: Krist, 2019 ONCA 802; Re: Abdulle, 2019 ONCA 812).

77. That Court re-emphasized the onerous test in Re: Gibson 2022 ONCA 527, per Lauwers J.A. at para. 9:

Huscroft J.A. said in Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17, that “the ‘significant threat’ standard is an onerous one”. He added that “[t]he board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge”. Mere speculation is insufficient. See also, Sim (Re), 2020 ONCA 563, at paras. 63-65, per Strathy C.J.O., Marmolejo (Re), 2021 ONCA 130, 155 O.R. (3d) 185, per Tulloch J.A., at paras. 33-37.”

78. Having heard all the evidence and considered the submissions of counsel, the Board makes a positive finding that Mr. Baez-Thoonen poses a significant threat to the safety of the public.

79. There is no doubt that Mr. Baez-Thoonen has a serious mental illness. He has been diagnosed with schizophrenia and substance use disorder. The Board does not suggest that these illnesses in and of themselves make him a serious threat to the safety of the public. It is not the presence of an illness which the Board must consider, but whether due to that illness a person is likely to act in such a way as to create a reasonable likelihood of danger to the public. That danger must be real; it must be beyond annoyance, as set out by the Supreme Court.

80. The evidence indicates that Mr. Baez-Thoonen has not engaged in physical violence directly against others, apart from environmental damage. Based on this, if the Board was only considering the likelihood of whether he would commit an actual assault, the test for serious threat would likely not be made out. However, the test is not only one of direct physical violence.

81. The index offence was serious and criminal in nature. The totality of the evidence militates towards the conclusion that Mr. Baez-Thoonen’s decompensated mental state, exacerbated by cannabis use and sub-optimal management of his schizophrenia, drove his index offence.

82. The evidence indicates that Mr. Baez-Thoonen has a history of cannabis and illicit drug use which leads to a destabilization in his mental status and a corresponding risk to others in such a state, as occurred with the index offence. The Board is satisfied that there is a likelihood of decompensation, especially since Mr. Baez-Thoonen continues to use cannabis frequently. Mr. Baez-Thoonen is ambivalent about his need for anti-psychotic medication, and he has chosen to use cannabis rather than his prescribed medication (Wellbutrin).

83. Mr. Baez-Thoonen’s partial insight into his mental illness and risk for violence raises serious concerns for the Board regarding his level of insight and his understanding of the risk he poses to others when using substances in a decompensated state.

84. Mr. Baez-Thoonen’s housing remains unstable, and his current accommodations expose him to substance use by others in the home.

85. Mr. Baez-Thoonen remains vulnerable to destabilization due to substance use, particularly cannabis, which in turn increases Mr. Baez-Thoonen’s risk to the safety of the public.

86. Mr. Baez-Thoonen still needs to participate in substance use counselling and the Board has little confidence that he can remain substance-free in the community without extensive support and oversight of mental health professionals. Although PEPP has provided care to Mr. Baez-Thoonen, and he has been at least partially compliant with his medications, the oversight and support provided to date has not enabled Mr. Baez-Thoonen to remain substance-free or fully compliant with his prescribed medications.

87. The Board adopts in its entirety the clinical assessment of risk set out at pages 25-26 of the Report which concludes that Mr. Baez-Thoonen continues to pose an elevated risk that the clinical team estimates to as being in the “moderate” range for violent recidivism.

Disposition:

88. Mr. Baez-Thoonen has resided in the community since the index offence with no further involvement with the criminal justice system. For these reasons, the Board agrees that a Conditional Discharge has “an air of reality” about it. Consequently, the Board carefully considered whether Mr. Baez-Thoonen’s consent to treatment pursuant to 672.55(1), together with other provisions of the Code and civil mechanisms available under the MHA, would be sufficient to maintain his mental stability in the community and to ensure his expeditious return to hospital in the event of noncompliance or decompensation and concluded that they would not.

89. The Board carefully considered the potential impact of a Detention Disposition on Mr. Baez-Thoonen’s personal relationships and family; his accommodations; and his community psychiatric supports.

90. The Board agrees with the hospital’s position that there is a need to be able to quickly intervene and readmit Mr. Baez-Thoonen to hospital in the event of a decompensation or threatened decompensation in his mental state. The provisions of the MHA, which are retrospective in nature, are insufficient to accomplish this, particularly given the rapidity with which Mr. Baez-Thoonen is likely to decompensate given the fact that he continues to exhibit paranoia (e.g. with respect to injections).

91. The Board is aware that Mr. Baez-Thoonen’s medications are administered orally, and that he has declined a long-acting injection. He has been inconsistent with medication compliance. He uses cannabis daily and has not had a comprehensive mental health assessment while abstinent. He has not been fully cooperative with his community treatment team, particularly Dr. Richard, as described at page 20 of the Report:

He stated, "she's nice I guess", but noted that he was not able to be completely open and honest with her. When asked why he felt this way, he stated, "not 100% sure" and was not able to elaborate further. Mr. Baez-Thoonen stated he has only missed 2-3 appointments over the last two years; "I feel like I had to go...they were telling me I had to go because of the NCR I guess...my lawyer and Richard". He stated that he needed a psychiatrist prior to the index offence but was uncertain as to whether he needed this support now; "I don't know, maybe".

92. If he were to decline treatment with his antipsychotic medication, as he did with the Wellbutrin, or to otherwise experience an increase in illness symptoms, the provisions of the MHA would not allow the hospital to intervene sufficiently quickly to ensure public safety.

93. For these reasons, the Board finds that a Conditional Discharge is not sufficient to manage the risk to the safety of the public, which is the paramount consideration, and that the necessary and appropriate disposition is a Detention Disposition.

94. During the hearing Dr. Prakash was questioned about the utility of including a prohibition on the use of cannabis in the disposition, given that Mr. Baez-Thoonen uses cannabis daily. Dr. Prakash responded that while in the past any breach of disposition would result in hospitalization, under recent caselaw the treatment team can take a more nuanced approach. In response to a breach of the disposition, the treatment team can increase visits to Mr. Baez-Thoonen, optimize his medications, and assist him to manage his cravings. If this fails, the detention order with an abstain clause will permit the treatment team to bring Mr. Baez-Thoonen to hospital.

95. The Board accepts that a prohibition on the use of cannabis is necessary to reduce the risk to the safety of the public and accepts that Dr. Prakash’s “nuanced approach” can provide external motivation and structure for Mr. Baez-Thoonen to address his addictions.

96. The Board acknowledges that Dr. Prakash stated that the hospital did not ‘need’ to approve Mr. Baez-Thoonen’s accommodations. The Board noted that this evidence was given in the context that, because PEPP has supported Mr. Baez-Thoonen’s search for housing and has access to the same housing alternatives as the hospital, it is not necessary for the hospital to become involved in Mr. Baez-Thoonen’s current search for new housing.

97. The Board notes that other residents of the house where Mr. Baez-Thoonen lives are substance users. The Board finds that the hospital will need to be able to approve accommodation, whether procured by PEPP or the hospital, in order to support Mr. Baez-Thoonen in addressing his addictions.

98. The Board included a clause requiring Mr. Baez-Thoonen to abstain from non-medical use of drugs etc. including cannabis, to emphasize the importance of the Disposition providing extrinsic support for abstinence.

99. Reporting requirements were increased from no less than 2 times per month as recommended by the hospital, to no less than four times per month, to ensure that Mr. Baez-Thoonen works closely with the treatment team, and the treatment team has ample opportunity to assess him. This is especially important in the upcoming year as the treatment team and Mr. Mr. Baez-Thoonen begin to develop a therapeutic relationship.

100. For the foregoing reasons, the Board is of the view that a Detention Disposition on the terms set out in the Report, with the exception that Mr. Baez-Thoonen report no less than four times per month, is the least onerous and restrictive disposition that is necessary and appropriate in the circumstances.

101. In making this Disposition, the Board has considered the criteria set out in s. 672.54 of the Code, which are the safety of the public, being the paramount consideration, the mental condition of Mr. Baez-Thoonen, the reintegration of Mr. Baez-Thoonen into society and the other needs of Mr. Baez-Thoonen.

102. The Board commends Mr. Baez-Thoonen for his willingness to seek help when he is in crisis and wishes him success in the upcoming year.

DATED this 5^th^ day of March 2025, at the City of Toronto, in the Toronto Region.

Katherine Tomaszewski

Legal Member

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Office of the Registrar

Ontario Review Board