Re William H. Baker, 2025 CanLII 21210

Re: William H. Baker

ORB File No: 7431

Hearing held on: Monday, January 27, 2025

Place of hearing: Southwest Centre for Forensic Mental Health Care

Pursuant to: Section 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. Tamra Mann

Members: Dr. A.D. Jones

Dr. S. Wiseman

Ms. K. Tomaszewski

Ms. C. Plyley

Parties Appearing:

Accused: William H. Baker

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 4, 2025)

Introduction

1. On October 10, 2018, William H. Baker was found not criminally responsible on account of mental disorder (NCR) on Criminal Code (Code) charges of sexual assault and indecent act.

2. Mr. Baker is currently subject to a disposition of the Ontario Review Board (the Board) dated February 6, 2024, which detains him at the Southwest Centre for Forensic Mental Health Care (the Hospital) with the privileges up to and including community living in accommodation approved by the person in charge of the hospital.

3. On January 27, 2025, this panel of the Board convened a hearing at the hospital for the annual review of Mr. Baker's disposition pursuant to s. 672.81(1) of the Code. Mr. Baker attended the hearing by video conference from the long-term care facility where he lives. Mr. Baker was supported by members of the forensic outreach team during the hearing, and was represented by counsel, Mr. Dobson.

4. The issue at this hearing is whether Mr. Baker is a significant threat to public safety, as defined in s. 672.5401 of the Criminal Code. If so, the necessary, and appropriate, Disposition in the circumstances must be determined, bearing in mind the factors enunciated in s. 672.54 of the Criminal Code.

5. At the outset of the hearing the parties were canvassed for their initial positions. The Hospital took the position that Mr. Baker no longer represents a significant threat to the safety of the public and recommended an absolute discharge.

6. Counsel for the Attorney-General agreed with the position of the Hospital.

7. Counsel for Mr. Baker agreed with the Hospital’s position.

8. For the Reasons which follow, the Board found that Mr. Baker is no longer a significant threat to the safety of the public and ordered that he be Absolutely Discharged.

Index Offences

9. The description of the index offences is taken from last year’s Board Reasons:

“The accused in this matter William BAKER resides at 511-563 Mornington Avenue in the City of London. The witness in this matter Heather INGREY is a cleaner at the apartment building.

On April 30, 2018 at approximately 8:40 am BAKER was sitting in a chair in the main lobby common area of the building. At this time INGREY was carrying out her cleaning duties. INGREY looked over at BAKER and observed him to be fully exposing his penis and genitals in her direction. INGREY retreated into the laundry room and BAKER followed her into the room. INGREY then retreated into the main office of the building and police were contacted."

"The following is taken from the London Police Service Charge Sheet (18-7451), dated April 30, 2018:

Accused: William BAKER 75 years of age. Victim: Wanda WALCZAK 50 years of age.

Prior to this event the victim and the accused did not know one another. Both share the same transportation service; Voyageur. The victim is for the most part non-verbal and functions much at the level of a young child due to her Downs syndrome.

On April 23rd, 2018, Dale HURLBUTT was driving a Voyageur shuttle bus and picked up the accused at 8:30 a.m. from 1151 Oak Crossing Road, London. Soon thereafter, Dale picked up the victim at 8:58 a.m. from her home. Once Dale arrived at the victim's drop off location he exited the driver seat to assist her getting off the bus. He observed the accused to have his hand down the front of the victim's pants. Dale told him to stop which he did. The accused then placed his own hand on his own lap. Dale helped the victim up and as she was walking down the isle [sic] to get off the bus the offender grabbed her buttocks. Again, Dale told the accused to stop and then got the victim off the bus. Dale reported this to his management and the London Police Service became involved."

Background and Course Since Last Hearing:

10. The Hospital Report dated November 19, 2024, was entered into evidence as Exhibit 1. The Report details Mr. Baker's personal history, his mental health history as well as his course in the hospital and in the community, both before the index offences and after the offences and the NCR finding. As the document was made an exhibit, it is not necessary to fully set out this information.

11. Mr. Baker is 82 years of age and has current diagnoses of major neurocognitive disorder (vascular dementia) (“NCD”), schizophrenia, antisocial personality disorder, substance use disorder (remote) and Parkinson's (recently confirmed). Mr. Baker’s residual symptoms of schizophrenia remain chronic and severe. He has limited knowledge of the medications he has been taking and his response to the medications remained partial.

12. Mr. Baker is incapable of managing treatment decisions relating to his mental illness. The Office of the Public Guardian and Trustee is his substitute decision maker.

13. Mr. Baker lives in a long-term care facility (“LTC”), Henley Place, with 24/7 supervision. He has a good relationship with the staff at Henley Place.

14. Mr. Baker continues to refuse his intramuscular injections from time to time, but there is one nurse at the LTC home with whom he appears to have a heightened, positive working relationship, and she is able to get him to comply with the injection while others tend to struggle. However, the LTC home has not reached out to report difficulty with injection compliance this review year. Mr. Baker is persuaded to take his medications because he does not want to return to the hospital.

15. There have been no admissions to the Hospital during the reporting period.

16. Mr. Baker’s physical health has declined. He has greater mobility issues. His cognitive stability has declined over the year.

17. Mr. Baker's personal supports continue to be his granddaughter, Ms. Ashley Walker.

Evidence at the Hearing

18. Dr. Ajay Prakash gave evidence for the Hospital at the hearing and adopted the contents of the Hospital Report.

19. The doctor testified that Mr. Baker poses a low risk to the safety of the public for four main reasons.

20. First, Mr. Baker continues to experience chronic residual symptoms of schizophrenia, NCD and antisocial personality disorder, all of which contribute to his risk to the public. These behaviours are well managed by the LTC staff.

21. Second, while Mr. Baker’s antisocial personality disorder causes dysfunction in his housing and relationships with the people around him, he now lives in a private room. The funding for this room is secure and long-term. Because he copes with stress by withdrawing to his room, he is less of a risk to those around him. He is no longer a risk to roommates because he has no roommates.

22. Mr. Baker likes living at Henley Place. He is unlikely to wish to leave Henley Place, and he is incapable with respect to LTC placement decisions.

23. Dr. Prakash stressed that living in a private (single) room has resulted in a significant reduction in the risk of harm to the public, both because fewer people are exposed to Mr. Baker, and because Mr. Baker has a safe place to go to get away from stressors.

24. When asked whether Mr. Baker is likely to refuse to pay for his private room, Dr. Prakash indicated that he has never declined to pay rent in all the years he has lived at Henley Place, and that if he did decline to pay the rent, Mr. Baker would most likely be admitted to hospital, where his capacity to manage property would be assessed.

25. In the doctor’s opinion, it is speculative at best to propose that there is a risk that Mr. Baker will leave Henley Place or lose his private room.

26. Third, Mr. Baker now has community-based psychiatric supports. On June 19, 2024, a referral was made to the Discharge Liaison Team (“DLT”) for geriatric aftercare. On July 12, 2024, the Forensics outreach team completed a joint visit with DLT, which was their first visit. After this initial visit, Ms. Yumiko Takahashi (Registered Nurse) became a designate for forensic services and began meeting with Mr. Baker, independently, every two weeks. All visits with Ms. Takahashi have gone well and Mr. Baker is building a good working relationship thus far. Positively, Ms. Takahashi has access to the electronic health record at the long-term care home, which allows her to supervise medication, behaviours, and presentation (mental and physical health) easier, and likely more thoroughly, than the forensic outreach team. The forensic team requires the nursing home staff to review the documentation and to verbally report findings.

27. Mr. Baker is also supported by a DLT psychiatrist, Dr. Lisa Van Bussell, who is affiliated with Parkwood Hospital in London. Parkwood has geriatric care facilities.

28. The plan developed with DLT was to issue a Community Treatment Order (“CTO”) prior to an absolute discharge, to ensure compliance with the treatment plan.

29. Fourth, the CTO was issued just prior to the hearing, on the same day as the hearing. This will require Mr. Baker to comply with antipsychotic medications and sex-drive reduction medications; to meet with the DLT; to comply with laboratory investigations; and to notify the team before any change of residence.

30. Dr. Prakash explained that Mr. Baker is treatment decision incapable, and if he did not comply with treatment a Form 47 could be issued under the CTO to bring him to the hospital. The Box B criteria of the Mental Health Act could then be used to keep him in the hospital for treatment.

31. As a practical matter, Dr. Prakash pointed out that Mr. Baker is unable to leave the LTC by himself, spends most of his time in his room, and has little interaction with peers. As the years have gone by, he has become more physically and medically fragile. He is less mobile now. He uses a walker and spends most of his time in bed.

32. Mr. Baker’s mental disorder and behaviours have not changed, and he continues to pose potential risk for harm, but that risk is now well-managed by external, post-forensic supports, and no longer rises to the level of significant threat.

Analysis and Conclusion

33. The central issue is whether Mr. Baker remains a significant threat to the safety of the public.

34. The relevant legal principles to be applied to the evidence with respect to the issue of significant threat are summarized in the decision of the Ontario Court of Appeal, in Marmolejo (Re), 2021 ONCA 130 at paras 34-37:

“…the role of the Board is first to determine whether an NCR accused represents a significant threat to public safety. If the answer to that question is "no" or uncertain, then the NCR accused must be discharged absolutely: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No 31, at pp. 659-61, 669 S.C.R. If the NCR accused does present a significant threat, the Board must either conditionally discharge or detain the individual”: Winko, pp. 662, 669 S.C.R.

It is important to bear in mind that the Board's responsibility to grant an absolute discharge is non-discretionary, in the event that it harbours any doubt about whether the NCR accused represents a significant threat: Carrick (Re), [2018] O.J. No. 4878, 2018 ONCA 752 , at para. 16. As the majority of the Supreme Court emphasized in Winko, at pp. 652-53 S.C.R.: "Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application."

Individuals with mental disorders are not inherently dangerous: Winko, at p. 653 S.C.R. There is no presumption of dangerousness and no burden on the NCR accused to prove a lack of dangerousness: Winko, at pp. 660-61, 662 S.C.R. Rather, the legal an evidentiary burden of establishing significant threat rests on the Board or the court: Winko, at p. 663 S.C.R.

The threshold for significant risk is "onerous": Carrick (Re) (2015), 128 O.R. (3d) 209, [2015] O.J. No. 6524, 2015 ONCA 866, at para. 17. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public: R. v. Ferguson, [2010] O.J. No. 5138, 2010 ONCA 810, at para. 8. The conduct must be of a serious criminal nature: Ferguson, at para. 8. A very small risk of grave harm will not suffice, nor will a high risk of trivial harm: Ferguson, at para. 8. The threat must be more than speculative in nature; it must be supported by evidence: Winko, at p. 665 S.C.R.; Pellett (Re) (2017), 139 O.R. (3d) 651, [2017] O.J. No. 5025, 2017 ONCA 753, at para. 21.”

35. In this case, the Board cannot identify a real, significant risk of physical, or psychological, harm to members of the public that goes beyond the merely trivial or annoying. The Board cannot make a positive finding that Mr. Baker poses a risk that is criminal in nature. Such a finding is what Winko requires.

36. The Board relies on Dr. Prakash’s testimony, as supported by the following passages from pages 116-117 of the Hospital Report:

Mr. Baker presents a low risk for violence if granted an absolute discharge. Even though there is evidence of clinical and future risk items present, they are not relevant as they have been present for years with no incidence of violence since November 2022, and no readmissions to hospital since then. Mr. Baker now has adequate supports in place, which have proven to be sufficient in managing his physical and mental health care needs. The team believes that these supports can successfully manage him in the community. That is, he is able to be risk-managed. Mr. Baker is under the PGT for treatment, he is on two injections, and he will be placed on a CTO to ensure ongoing medication compliance.

Additionally, Mr. Baker’s decline in both his physical mobility and cognition when coupled with the aging process significantly reduces his overall level of risk.

The following protective factors are present to some extent for Mr. Baker:

• Financial Management: Mr. Baker has a fixed income each month which is sufficient to support himself and he has adequate savings.

• Professional Care: Mr. Baker has regular contact with mental health care professionals (DLT) and is also supported by the LTC staff.

• Living Environment: Mr. Baker has a stable living environment and is supported by the staff at the LTC home. He has a private room that has been integral to his success and is paid for with special funding from the LTC home.

• External Control: Mr. Baker is incapable of making treatment decisions related to his mental illness and is under the PGT. He will also be on a CTO prior to his ORB hearing to ensure ongoing medication compliance post discharge.

Overall Clinical Assessment of Risk

It is the opinion of the treatment team that Mr. Baker no longer poses a risk of serious physical or psychological harm to members of the public. The following evidence supports this opinion:

1. Although Mr. Baker has presented with ongoing residual symptoms of his illness, including auditory hallucinations, these symptoms are not distressing, do not impact his day-to-day functioning, and have not required emergency mental health interventions;

2. Although Mr. Baker demonstrated affective, behavioural and cognitive instability (e.g., mood lability, sudden outbursts of anger, and a distorted attributional style), these incidents have lessened, and the LTC home has been able to manage him without issue;

3. Mr. Baker has had some issues with rule adherence, but the LTC staff have been able to manage these incidents without intervention from the outreach team;

4. Mr. Baker’s cognitive impairments continue to decline, but he is being managed well by the LTC staff and the Discharge Liaison Team;

5. Mr. Baker has poor insight into his mental illness, his need for treatment, and his violence risk, which will likely not change in the future due to his cognitive ailments; and

6. Mr. Baker has a history of medication nonadherence, specifically with receiving his injection. However, the LTC home has not reached out to report difficulty with injection compliance this review year. As well, Mr. Baker will be placed on a CTO prior to discharge to ensure ongoing compliance under the supervision of the DLT and his community psychiatrist.

7. It was Dr. Prakash’s uncontroverted evidence that the external structures provided by the LTC, the DLT, and the CTO, combined with Mr. Baker’s private accommodation; the secure financing of his accommodation; his declining mobility; and his declining physical and medical condition; have reduced Mr. Baker’s risk to the public below the threshold of significant threat.

8. The Board agrees with Dr. Prakash.

9. As appellate courts have observed in several cases, the threshold for finding of significant threat to the safety of the public is onerous. Upon careful consideration of all the evidence and submissions of the parties, the Board is unable to find that Mr. Baker is a significant threat to the safety of the public. As the Board is unable to make this positive finding, Mr. Baker must be absolutely discharged.

10. The Board congratulates Mr. Baker and wishes him all the best.

DATED this 4^th^ day of March 2025, at the City of Toronto, in the Region of Toronto.

Ms. K. Tomaszewski

Legal Member