Re: Clayton Kokokopenace
ORB File No: 6975
Hearing held on: January 20, 2025
Place of hearing: Thunder Bay Regional Health Sciences Centre
Pursuant to: Section 672.48 (1) 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Goldenberg
Members: The Hon. E. Kruzick Dr. G. Eayrs Dr. M. Green Mr. A. Mete
Parties Appearing:
Accused: Clayton Kokokopenace Counsel: Mr. U. Agostino
The Person in charge of Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Ms. C. Sieradzki
REASONS FOR DISPOSITION
(Dated March 21, 2025)
Introduction:
On June 22, 2016, Clayton Kokokopenace was found unfit to stand trial on charges of assault causing bodily harm and mischief under $5000 both contrary to the Criminal Code of Canada (Criminal Code). He is currently subject to a disposition dated February 6, 2024, detaining him at the Secure Forensic Unit of Thunder Bay regional Health Science Centre, Thunder Bay, (TBRHSC or Hospital) with prohibitions and several privileges including the privilege of living in the community of Northwest Ontario in approved accommodations. As a result, Clayton Kokokopenace is currently under the jurisdiction of the Ontario Review Board (ORB or Board).
On January 20, 2025, a panel of the board convened in person at the TBRHSC for the annual review of that disposition. Clayton Kokokopenace was present and represented by counsel, Mr. Agostino while the hospital was represented by Ms. Davidson. Ms. Sieradzki appeared as counsel for the Attorney-General.
Issues at the Hearing
- The issues at this hearing are whether Mr. Kokokopenace remains unfit to stand trial and if so, whether he remains a significant threat to the safety of the public. If that is determined to be the case, then it is for the Board to determine the necessary and appropriate disposition for the coming year based on the factors of s. 672.54 of the Criminal Code.
Positions of the Parties
- At the commencement of the hearing, the parties were canvassed as to their initial positions. Ms. Davidson indicated that the hospital's position is that Mr. Kokokopenace is permanently unfit to stand trial and that he continues to represent a significant threat to the safety of the public. The hospital recommends no change to his current detention order. On behalf of the Attorney General, Ms. Sieradzki joined the hospital. Mr. Agostino on behalf of Mr. Kokokopenace stated that he joins the hospital with respect to Mr. Kokokopenace being permanently unfit. He has no instructions for disposition from his client and therefore takes no position on that issue.
Findings
- For the Reasons that follow, the panel found that the threshold for unfit to stand trial is met and that the necessary and appropriated disposition is a continuation of the current detention disposition.
Index Offences
- The allegations giving rise to the index offences are set out in the last Disposition and summarized as follows: on Tuesday March 22, 2016, at approximately 9:33 P.M. police received a call for service in the First Nation Territory of Grassy Narrows. Complainant Jackie Fobister called to report that someone was breaking into Baxton’s house on the loop; it is a male wearing a red sweater carrying a bat. Jackie advised that it is a yellow house, and she can hear Baxton yelling, “stop it”. At approximately 9:35 P.M. police arrived on scene at Paxton Kokokopenace residence. Upon driving into the driveway, Clayton Kokokopenace came out of Baxton's house wearing a red sweater and he had a cut on the right side of his head. Constable Taman observed multiple windows broken and blood on the ground. at approximately 9:38 P.M. Constable Taman placed Mr. Kokokopenace under investigative detention and placed him in the police vehicle. Constable Tamon and Sergeant Gervais entered the house to look for Paxton and observed a large amount of blood on the floor and broken glass. While in the residence police received a call from Provincial Communication Centre advising that Crisis called and they have Clayton Kokokopenace with a large cut to his hand bleeding a lot and will be taking him to the clinic. Constable Tamon advised that Mr. Kokokopenace was in the back of police car and that and officers would attend the clinic and speak with the other injured male. At approximately 9:48 P.M. Constable Tamon and Sergeant Gervais attended the Grassy Narrows Clinic and there was a male sitting in a chair in the lobby waiting for the nurse. Male identified himself as Baxton Kokokopenace and stated that his brother Clayton broke his windows and then freaked out, hitting him with what he believed to be hedge trimmers. Paxton showed Constable Tamon the cut on his hand which was bleeding a lot. Baxter advised that he will provide a statement and wants his brother charged. At approximately 9:54 P.M. Mr. Kokokopenace was placed under arrest for assault causing bodily harm and mischief.
Background Information
Mr. Kokokopenace is currently 56 years of age. He was born in Kenora and raised in Grassy Narrows. His parents are both deceased, having died when he was 17 years of age. His mother died in a fire and his father from alcohol related issues. Both parents were reported to be heavy drinkers and there was violence in the family. Mr. Kokokopenace reported having a good relationship with his parents. He has five siblings: two brothers residing in Grassy Narrows, and three sisters - one living in Winnipeg, one in Kenora, and the other is unknown. He maintains contact with the known sibling group. Mr. Kokokopenace learned English in high school. Cree is his first language.
Mr. Kokokopenace has an extensive criminal record from in or about 1985 through to 2004. It includes a number of offences involving violence, possession of a firearm while prohibited, possession of a weapon, assault causing bodily harm, assault with a weapon, and two other assaults. His criminal history is set out in greater detail in the Hospital Report at pages 3 and 4.
Mr. Kokokopenace is physically impaired in several areas including language, physical incontinence, and suffers choking.
Prior to coming to TBRHSC Mr. Kokokopenace was a resident of Ontario Shores for approximately three years. His ability to communicate has deteriorated since the time of his hospitalization at TBRHSC.
Mr. Kokokopenace has been found to be permanently unfit since 2016. When spoken to by the Oji-Cree interpreter and asked Taylor questions (See: R. v. Taylor 2014 SCC 50, [2014] 2 SCR 495) the interpreter reported that Mr. Kokokopenace’s responses were nonsensical and unrelated to the questions that had been asked of him.
It is suspected that Mr. Kokokopenace likely experiences psychotic symptoms from time to time. He has a history of being overtly psychotic. It is reported that Mr. Kokokopenace was involved in multiple minor assaults on staff during the past treatment year when they were trying to change his soiled clothing. He is otherwise pleasant. He does have supervised community access, but experiences problems dealing with loud noises or crowded locations. He enjoys outdoor activities. Mr. Kokokopenace maintains phone contact with his sisters. His brother has visited him.
Mr. Kokokopence has been on a wait list with the Brain Injury Services of Northern Ontario (BISNO) since 2019. In August 2022, he was accepted to waitlist for the Transitional Care Unit (TCU) at St. Joseph’s Care Group’s Hogarth Riverview Manor.
Psychiatric History
- Current Diagnoses as set out in the Hospital Report are as follows:
Major Neurocognitive Disorder due to Neurosyphilis (with behavioural disturbance, moderate)
Alcohol and Cannabis Use Disorder, in sustained remission in a controlled environment
Evidence at the Hearing
Hospital Report dated December 18, 2024 was made an exhibit at this hearing. Dr. Schubert, who co-authored the report gave oral evidence. He adopted the contents of the report and provided the Board with an update on Mr. Kokokopenace status.
Dr. Schubert testified that since the Hospital Report was prepared there have been no significant changes or new developments in Mr. Kokopenance’s case. He continues to reside at the Secure Forensic Unit of TBRHSC.
The Hospital Report assesses his risk as follows:
“Mr. Kokokopenace’s cognitive functioning has deteriorated over the intervening years. His inability for internal control and to use appropriate judgment during minor conflicts or when upset with others has led to threatening and assaultive behaviours while under the ORB at this hospital, at Ontario Shores, as well as during his stay at the long-term care facility in Kenora. He has a history of violence prior to coming under the ORB, including convictions for assault causing bodily harm, assault, assault with a weapon, utter threats, possession of a weapon, and driving while impaired. He has a history of alcohol and cannabis use. However, this is not an issue currently.”
Mr. Kokokopenace spends his time on the unit participating in activities they include recreational and Indigenous programming and arts and crafts. He also enjoys outings into the community and primarily car rides, short walks and shopping trips.
After being on the TCU waitlist, on March 25, 2024, Mr. Kokokopenace received a placement for transitional care. He was transferred to the Hogarth-Riverview Manor Transitional Care Unit in Thunder Bay. At the outset, while at the TCU it appeared Mr. Kokokopenace was doing fairly well. He enjoyed his visits from the hospital team who came to help with the transition. The hospital staff included a social worker and an occupational therapist.
Unfortunately, the facility which is transitional and was not meant to be long-term only accommodated Mr. Kokokopenace for a few months. He was discharged back to the Forensic Inpatient Unit of TBRHSC on November 19 2024. While at the TCU concerning behavioural incidents were documented. These are set out in greater deal at pages 44 and 45 of the Hospital Report. The incidents recount Mr. Kokokopenace’s aggressive behaviours. The TCU was not willing to continue to accommodate Mr. Kokokopenace as he continued to be more disruptive and aggressive.
The behaviours which resulted in the TCU decision to terminate Mr. Kokokopenace’s stay occurred in November, 2024. On November 5 2024 a nurse documented that Mr. Kokokopenace raised his fist at her when she attempted to select clothing for him. Then, on November 18th 2024, Mr. Kokokopenace assaulted a co-resident. That incident resulted in the termination of Mr. Kokokopenace’s stay at the TCU.
Since then, Dr. Schubert’s reported that the hospital team is having difficulties in finding a long-term care facility willing to accommodate Mr. Kokokopenace.
Dr. Schubert opined that Mr. Kokokopenace is considered permanently unfit to stand trial based on his irreversible and progressive cognitive insults resulting from neurosyphilis. He was assessed by Dr. Schubert with respect to fitness December 5, 2024. In Dr. Schubert opinion given Mr. Kokokopenace’s recent behaviours, at the date of the hearing there has been no change in his fitness. As in the past years, Mr. Kokokopenace remains unable to participate in any meaningful way, is unable to answer questions coherently or at all beyond the shaking of his outstretched arms and mumbling. In conversations, Mr. Kokokopenace responds with only a few words. At times he is distracted or laughs for no apparent reason.
As a result of his major neurocognitive disorder, in Dr. Schubert’s opinion Mr. Kokokopenace is unable to understand the nature or purpose of court proceedings, the possible consequences of the proceedings and is unable to communicate with counsel.
Dr. Schubert testified that Mr. Kokokopenace is incapable of consenting to treatment or of managing his finances.
Counsel for Mr. Kokokopenace asked Dr. Schubert whether Mr. Kokokopenace is being considered for residency at a proposed BISNO long-term care facility currently under construction in Thunder Bay. Dr. Schubert indicated that while Mr. Kokokopenace is a candidate for that facility, given the recent trial period at the TCU it remains an option but there is no plan in place for Mr. Kokokopenace at this time.
When asked by a Board member whether Mr. Kokokopenace has funding through Developmental Services Ontario (DSO), Dr. Schubert confirmed he is on DSO.
When asked if the new long-term care facility, currently under construction in Thunder Bay could be suitable housing for Mr. Kokokopenace, Dr. Schubert replied that it could be but he would have to meet the requirements. Dr. Schubert expressed that the hospital team will continue to explore Mr. Kokokopenace’s long term care options.
No other evidence was called.
Submissions
- Ms. Davidson and Counsel for the Attorney General expressed that their positions remained as at the outset of the hearing. On behalf of Mr. Kokokopenace, Mr. Agostino maintained his initial position with no instruction from his client as to disposition.
Analysis
In considering the evidence at this hearing, the Board is unanimous in finding that Mr. Kokokopenace is unfit, and permanently so. In coming to our conclusion we bear in mind the submission of counsel. In that regard, Mr. Kokokopenace has been permanently unfit since 2016.
The statutory definition of “unfit to stand trial” is set forth in s. 2 of the Criminal Code. The evidence of Dr. Schubert, and as set out in the Hospital Report, supports the Board’s finding that Mr. Kokokopenace remains unfit to stand trial pursuant to the Taylor test and as further explained by our Court of Appeal in R. v. Bharwani, 2023 ONCA 203. In fact, the evidence of Dr. Schubert, who has known Mr. Kokokopenace for over six years, is that Mr. Kokokopenace’s cognitive ability has deteriorated, and he has observed noticeable cognitive decline in his exchanges with Mr. Kokokopenace.
In the most recent exchange Mr. Kokokopenace was unable to respond to the Taylor test questions put to him by Dr. Schubert. While the Taylor test questions are not a sufficient surrogate for assessing fitness, they ae helpful in providing insight into a person’s ability in relation to the s. 2 criteria.
The evidence supports that Mr. Kokokopenace is unable to demonstrate any understanding of the nature and objectives of a trial and is, in fact, unable to communicate. From the evidence we find that at a trial Mr. Kokokopenace would be unable to participate in a meaningful way. Regrettably, the evidence supports that Mr. Kokokopenace’s could not intelligibly communicate with either counsel or the court.
Given the recent incidents of ongoing physical aggression to staff and co-residents, as set out in the Hospital Report, and, more particularly, the November 18th, 2924 assault on a co-resident at the TCU, the Board is unanimous in finding that Mr. Kokokopenace represents a significant threat to the safety of the public.
On a positive note, Mr. Kokokopenace enjoys a good quality of life at the hospital. His personal care and needs are being met and he enjoys a quality of life that is as good as possible for him.
As was attempted last year, we encourage the hospital team to continue to pursue Mr. Kokokopenace’s reintegration and to be moved to a long-term care facility, or to BISNO.
Conclusion
- On the evidence which we accept the Board finds that the jurisdictional threshold of ‘Unfit to Stand Trial’ is met. For all the reasons set out above, we agree with the position of the hospital that Mr. Kokokopenace’s disposition should continue without change. As indicated it allows the hospital team to pursue Mr. Kokokopenace’s reintegration and to be move to a long-term care facility, or to BISNO.
DATED this 21st day of March 2025 at the City of Toronto, in the Toronto Region.
Emile Kruzick
Legal Member
Office of the Registrar
Ontario Review Board