Re Donald Harry Everingham, 2025 CanLII 23521

Re: Donald Harry Everingham

ORB File No: 0359

Hearing held on: Tuesday, February 25, 2025

Place of hearing: Ontario Review Board, 151 Bloor Street West, Toronto (Via Zoom Video Conference)

Pursuant to: Sections 672.69 and 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. C. Finley Members: Dr. R. Kunjukrishnan Dr. J. Cheston Mr. L. Calzavara Mr. A. Bouvier

Parties Appearing:

Accused: Donald H. Everingham Counsel: Mr. I. McCuaig

The Person in charge of Hospital: Representative: Dr. J. Gray

Attorney General of Ontario: Counsel: Mr. A. Findlay

REASONS FOR PLACEMENT DECISION AND DISPOSITION

(Dated March 18, 2025)

Introduction:

1. On May 5, 1975, Donald Everingham was convicted of forcible seizure, rape and attempted murder, contrary to the Criminal Code of Canada. He was initially sentenced to four years for forcible confinement, eight years for rape and twelve years for attempted murder. Upon a Crown appeal, the Court of Appeal varied his sentences on the rape and attempted murder counts to two life sentences. On October 1, 1975, Mr. Everingham was found not guilty by reason of insanity (NGRI) on charges of assault and assault causing bodily harm, contrary to the Criminal Code. He is therefore a dual status offender.

2. Mr. Everingham is currently subject to a disposition of the Ontario Review Board (ORB/the Board), dated December 10, 2024, detaining him at the Secure Forensic Unit of the Brockville Mental Health Centre – Member of the Royal Ottawa Health Care Group, Brockville, Ontario (Brockville/the hospital), with discretionary privileges up to and including the ability to reside in the community in supervised accommodation approved by the person in charge. The same panel ordered that a placement review hearing be held, pursuant to s. 672.69(3) of the Criminal Code.

3. On February 25, 2025, the Board convened a panel using Zoom technology to conduct the review of Mr. Everingham’s placement. Mr. Everingham was present and represented by his counsel Mr. McCuaig. Dr. Gray, Mr. Everingham’s treating psychiatrist, appeared on behalf of the hospital but also give evidence. Mr. Findlay appeared on behalf of the Ministry of the Attorney General. All parties were in agreement that the only issue to be determined is the placement of Mr. Everingham. He currently is residing at the hospital.

4. Dr. Gray, on behalf of the hospital, submitted the issue was whether there is a presumption that a dual status offender under the jurisdiction of Correctional Services Canada (CSC) should remain so unless their mental health needs require them to be in a hospital, and where the offender is in a psychiatric facility, they should remain so unless their risk cannot be managed, in which case the offender should be placed under the jurisdiction of the CSC. Dr. Gray indicated that the hospital was happy to continue to support Mr. Everingham. Having said that, the hospital was not providing him with any specific mental health treatment. The team was simply monitoring him and trying to manage his risk to the safety of the public.

5. Mr. Findlay provided a tentative position that Mr. Everingham should be placed under the jurisdiction of the CSC.

6. Mr. McCuaig submitted that Mr. Everingham should remain under the care of the hospital. In his submission, the Board had no authority to change Mr. Everingham’s placement, as there had been no significant change in circumstances that would justify his being transferred to the jurisdiction of the CSC. If Mr. Everingham has been deemed sufficiently manageable that he can live in the community, this should not result in his being transferred from the jurisdiction of the ORB to that of the CSC.

Findings

7. For the reasons that follow, the panel finds that Mr. Everingham should be transferred to the jurisdiction of the CSC.

Preliminary Matters

8. It is apparent that the Board directed a placement hearing for reasons related to both the mental health needs of Mr. Everingham and the safety of other persons. It is convenient to quote from that decision, as set forth below (Reasons of Board, dated December 9, 2024, at paras.106, 111).

“As an inquisitorial Board this panel has a positive duty to consider what else can be done for the individual before it and search out evidence that favours the accused’s liberty interest, bearing in mind the paramount goal of public safety. These duties require the Board to do more than simply maintain a status quo. It has a positive obligation to proactively consider how further progress could be accomplished [citation omitted] … It may be that Mr. Everingham can progress no further in the forensic mental health system without putting the public at risk from behaviours that are criminogenic in nature.

In light of the expert evidence before this panel and in view of the submissions of the parties, we consider it appropriate that a placement review be conducted on an expedited basis for the following reasons:

• Mr. Everingham does not have a psychotic or mood disorder and therefore is not prescribed or treated with any antipsychotic or mood stabilizing medications;
• There is no therapeutic programming available in Hospital to address Mr. Everingham’s criminogenic risk factors, particularly his diagnoses of Sexual Sadism Disorder, Pedophilic Disorder and Antisocial Personality Disorder. Targeted therapeutic programming may be available within the criminal justice setting;
• Mr. Everingham was released into the community in 2021/2022 albeit this was a failed trial. However, he is currently assessed by his treatment team as ready again for release to community living, heightening concerns for public safety and in particular, concerns for those in Mr. Everingham’s likely victim pool – highly vulnerable young children who are in close proximity to his current independent residence;
• The treatment team may not have the same resources or expertise as CSC to monitor Mr. Everingham’s criminogenic behaviour; and
• There may be a lack of appropriate supervised accommodation in the community to adequately manage his risk to public safety as well as being accessible to Mr. Everingham given some potential mobility concerns, which likely require further assessment.

9. It bears noting that in the case of a dual offender like Mr. Everingham, such an offender, even if given a discharge by the ORB, will fall under the jurisdiction of the CSC to serve out, in some capacity, their extant sentence. In the case of a life sentence, that will be for life, although a suitable offender ultimately may be granted, for example, parole.

The Evidence

10. The evidence at the hearing consisted of the Hospital Report, dated September 29, 2011 (ex. 1), the Hospital Report dated November 21, 2024 (ex. 2), documents from CSC (exs. 3-5), and the viva voce evidence of Dr. Gray, Mr. Everingham’s treating psychiatrist, and Ms. Stoliker, a Senior Project Officer with CSC.

The Index Offences

11. The circumstances of the Index Offences are summarized in the 2024 Hospital Report, as follows (at pp. 1-2):

“On July 10, 1974, Mr. Everingham was driving his car on Royal York Road in Toronto. The 17-year-old victim was riding her bicycle. Mr. Everingham left his car, knocked the victim from her bicycle and down a grassy bank, and then threatened her with what was believed to be a knife and tried to force her into his car. The victim escaped by knocking off Mr. Everingham's glasses and calling for help. She memorized the license plate number on Mr. Everingham’s car. Accompanied by his lawyer, Mr. Everingham subsequently surrendered to police. He was later released on bail with a first appearance date of November 27, 1974.

Notably, following this offence, Mr. Everingham went to his aunt’s residence, where he threatened to kill her.

Offence Resulting in Dual Status:

Much of the following information has been gleaned from the police report resulting from this incident.

Mr. Everingham was released on bail following the July 10, 1974 offences described above. On August 26, 1974, around 7:30 p.m., an 8-year-old girl had been visiting with friends and was returning home on a bicycle when a car passed her, turned around, and stopped alongside her. A man stepped from the car, asked the girl where she lived and then grabbed her from her bicycle and put her in the car through the driver’s door. He then drove away to a lonely area, raped her in the car, tied one of her knee socks around her throat and threw her in a ditch some 15 miles from her home. She was found at 11:20 p.m. the same night, lying nude, face down in the grass with the knee sock tied tightly around her throat as the ligature. She was bleeding from her genitals. It is believed a torrential rainstorm saved her life - the rain had caused the ligature to stretch.

Medical examination at Meaford General Hospital revealed the girl had been raped and sustained the following injuries:

A massive tear in the vagina wall extending up to the cervix. The tear extended through the perineum, through the sphincter of the rectum and the muscles surrounding the rectum. Only a thin layer of mucous membrane separated the vagina from the rectum. The rectum was grossly distended. The tear appeared to have been caused by the entrance of an object into the vagina. Other injuries were in the form of bruises and abrasions to the front and sides of the neck. The girl was hospitalized for eight days.

Mr. Everingham was arrested at his place of residence on September 1, 1974. On May 5, 1975, he was found guilty in Owen Sound Court and sentenced on charges of Abduction (4 years), Rape (8 years), and Attempted Murder (12 years). These sentences were to run concurrently. However, in 1976, the Crown Attorney’s office appealed the duration of the sentence as imposed by the Court. The Crown was successful and Mr. Everingham was sentenced to life imprisonment on the charges of Rape and Attempted Murder. Simultaneously, Mr. Everingham appealed his convictions on the charges of Rape and Attempted Murder. His appeal was heard on June 22, 1976, and dismissed.”

Background

12. The documents filed as exhibits include a great deal of information pertaining to Mr. Everingham’s background and history under the Board and need not be reviewed in detail here given the limited focus of the hearing. Mr. Everingham is a 78-year-old man who has been under the jurisdiction of the Board for almost 50 years.

13. Mr. Everingham experienced significant violence as a youth, both as a victim and a perpetrator. The Hospital Reports provide some details of his criminal record, which includes convictions for indecent assault (reportedly involving a 9-year-old girl), possession of an unregistered firearm and break, enter and theft. The Reports also refer to many sexual offences that did not result in criminal convictions but contribute to an assessment of his risk. These include “contributing to the juvenile delinquency” after apparently molesting two girls aged about 6 and 8 years, and confession to the murder of two females that did not result in charges.

14. Mr. Everingham began consuming alcohol at a young age and other substances in his late teens, in particular, cannabis, hash, acid and speed. At the time of the index offences, he was consuming significant amounts of both alcohol and substances.

Oak Ridge/Waypoint: 1975-2012

15. Mr. Everingham’s diagnoses are Sexual Sadism Disorder, Pedophilic Disorder – attracted to opposite sex, Polysubstance Use Disorder and Antisocial Personality Disorder. He has not been prescribed any antipsychotic or mood-stabilizing medications while under the ORB as he has not displayed any symptoms of psychosis or mood disorder.

16. Following his NGRI finding, Mr. Everingham was admitted to Oak Ridge of the Mental Health Centre Penetanguishene (now Waypoint). He initially participated in some therapy groups. In September 1991, Mr. Everingham attended his first formal group session in the Problem Identification Group and in January 1994, he attended the Sex Offender Program Relapse Prevention Group. Mr. Everingham was found to be a very skillful manipulator and engaged only superficially with staff. He was challenging, angry, testing limits and repeatedly rude and sarcastic. The treatment team regularly raised concerns about whether any signs of rehabilitation were real or apparent.

17. Increasingly, Mr. Everingham declined to participate in recommended assessments, programming or therapy for various reasons, notwithstanding recommendations by the Board.

18. The Hospital Report details a number of incidents where observations of Mr. Everingham’s behaviour by staff differed from reports made by Mr. Everingham, in particular relating to his mobility. Thus, he complained of back and neck pain and spent most of his day lying in bed. However, staff observed him to adopt many different positions that seemed incompatible with severe back and neck problems. Team members acknowledged Mr. Everingham’s physical limitations. However, they felt that he was attempting to present as more physically limited than he actually was.

19. There also was concern that Mr. Everingham was demonstrating addictive behaviour with respect to his requests for Oxycodone analgesic medication, which he used three times a day.

20. Mr. Everingham’s compliance with recommended treatments for his physical health issues was less than ideal. Mr. Everingham refused to take any responsibility for managing his physical symptoms. When a detailed treatment plan was developed and implemented, Mr. Everingham became uncooperative and belligerent. He thwarted any efforts to encourage him to assist in his overall rehabilitation and refused to participate. He also refused to engage with his treating psychiatrist. In order to resolve the treatment impasse, the treatment plan had to be abandoned. It was believed that Mr. Everingham’s behaviour was consistent with a desire to continue experiencing his symptoms and use them in a strategy to work towards a transfer to a less secure setting. Given Mr. Everingham’s stagnation and the availability of appropriate security and programming in the CSC, at this time, the treatment team raised the possibility of Mr. Everingham’s placement being changed.

21. Over the next clinical year, Mr. Everingham’s attitude and behaviour towards the staff improved. He indicated an interest in participating in programming for sexual offenders when that became available and attended the Arousal Management program. Unfortunately, upon completing that program, Mr. Everingham declined to participate in further recommended therapeutic programming. In particular, Mr. Everingham declined to participate in a Cognitive Behavioural Program for Sex Offenders. He was invited and agreed to participate in the Mental Health and Drugs Recovery Group in May 2009, however, he stopped attending after one session. When asked his reason for refusing to continue, Mr. Everingham declined to respond.

22. Notwithstanding the foregoing, Mr. Everingham progressed to the point where the team felt that his risk could be managed at a medium secure forensic setting. He did not present as a management concern and there were no instances of violence or physical aggression. He did not require the high level of security at Oak Ridge. While recommending the Board order a transfer of Mr. Everingham’s care to Brockville in 2011, the treatment team made the following observation, as found at p. 75 of the 2024 Hospital Report:

“The Team does recommend a cautious progression and stresses Mr. Everingham will require escorted privileges in any less secure setting. In addition, it is important that he not have access to vulnerable females or children. Any internet access would also be a concern as Mr. Everingham is quite adept and knowledgeable with respect to computers and it is possible potential victims could be accessed via this tool.”

23. On November 16, 2011, the Board addressed the issue of Mr. Everingham’s placement. The Board found that, taking into consideration the criteria now articulated in s.672.68(3), Mr. Everingham should continue to be placed in custody in hospital.¹ The Board further ordered Mr. Everingham’s transfer to a secure forensic all-male unit in Brockville.

Brockville Mental Health Centre 2012-the present

24. Mr. Everingham was transferred to an all-male forensic unit at Brockville in March 2012. At this time, Mr. Everingham was regularly using a wheelchair. In December 2012, he entered a vulnerable co-patient’s room and struck him in the eye, causing significant injury. Further, unbeknownst to the team, he also was engaged in an on-line relationship with “Patricia”. Once it was discovered, Mr. Everingham refused to allow the treatment team to contact her for any collateral information, stating, “the relationship was none of the hospital’s business.” This was and is of significant concern in light of the above noted comments by his longstanding treatment team at Oak Ridge.

25. Mr. Everingham appealed his 2013 disposition that ordered him to “refrain from the use of computer devices, unless he give permission to hospital staff to monitor their use for content and messaging”. In upholding the Board’s decision, the Court of Appeal found that the implementation of the condition was “eminently reasonable. The Hospital cannot be expected to manage the appellant’s risk based solely on his self-reporting of the nature of his online communications.”²

26. Mr. Everingham participated in two groups through program nursing, one, the Historical Mental Health Drugs and Offending Behaviour (MDO) Substance Abuse group and, two, the Stress Management Group. He also met individually with a psychology resident. The resident reported that Mr. Everingham’s engagement was superficial and deemed it unlikely that he benefited much from the sessions. Mr. Everingham has not participated in any recommended groups or therapy since then.

27. On October 23, 2013, Lubron Depot, an antilibidinal, was commenced with Mr. Everingham’s consent. It continues to be administered by injection every three months.

28. In May 2014, Mr. Everingham made a veiled threat to a co-patient who was developmentally delayed, referencing the 2013 assault on another co-patient. This threat was made when he did not appreciate that he was being observed by staff. In April 2018, he threatened a nurse.

29. By 2016, the hospital was recommending that Mr. Everingham receive indirectly supervised community passes and the removal of the condition relating to the monitoring of Mr. Everingham’s internet use. By 2019, Mr. Everingham was expressing a desire to reside in his own independent apartment.

30. The 2024 Hospital Report references the Board’s Reasons and dispositions made in 2019 and 2020. In both, the panel stressed the need for a gradual transition and ordered that Mr. Everingham reside in supervised accommodation approved by the person in charge. Mr. Everingham remained adamant that he reside in his own apartment.

31. Matters came to a head when it was determined that there was no supervised accommodation in the Brockville catchment area that could accommodate wheelchair accessibility. One option was a transfer to Kingston, where suitable accommodation was available. Mr. Everingham refused.

32. The Hospital Report prepared for the Board in advance of the annual hearing in 2020 includes the following observation as found in the 2024 Report (at p. 127):

“At this time, all information taken together, Mr. Everingham falls in the MODERATE risk range for violent recidivism when in a structured and controlled environment. The results of the current assessment are in alignment with previous assessment by Dr. Gray who opined that, “The next step should be that he transfer into a supervised accommodation in the community in order to address his risk. With a high level of supervision in the community his risk would continue to be moderate and manageable as it is in his present situation.”

33. In order to accommodate Mr. Everingham and facilitate his discharge into the community, the hospital determined that another option was to allow Mr. Everingham to reside in an independent unsupervised apartment and have staff from the hospital monitor him. In 2020, his disposition included the ability to reside in approved accommodation.

34. Mr. Everingham was discharged to his own apartment in March 2021. The plan was for staff to visit his apartment on a daily basis and then, after a month, visit several times a week. Dr. Gray, initially would see him weekly.

35. At that time, representatives from CSC advised both Dr. Gray and Mr. Everingham that should Mr. Everingham receive either an absolute or conditional discharge, he would transfer to the jurisdiction of CSC.

36. The extent of Mr. Everingham’s mobility continued to be an issue. He had been using a wheelchair for some time. However, in May 2022, staff noticed that Mr. Everingham was able to walk. Indeed, they observed him walk down a steep bank to go fishing.

37. For the first year in the community, things seemed to go well for Mr. Everingham. However, in 2022, towards the end of the clinical year, concerns developed. In September 2022, staff noted a smell of cannabis when they visited Mr. Everingham’s apartment. The end of a joint was observed in an ashtray. Mr. Everingham denied any cannabis use and maintained it was from his housekeeper, Sharleene. When a urine sample was requested, Mr. Everingham claimed he could not urinate. Over the following days the request was renewed on a number of occasions. He repeatedly claimed that he was unable to provide a sample. Over a week later, Mr. Everingham finally provided a urine sample. The results were positive for a high level of cannabinoids.

38. During one of the staff visits at this time, Mr. Everingham, unprompted, disclosed to members of the treatment team that he had attended a birthday party for Sharleene’s 13-year-old daughter. When Dr. Gray attended at the apartment a few days later, Mr. Everingham repeated the disclosure and shared photos that he had taken during the party. They included pictures of Sharleene’s grandchildren, ages 3 and 18 months, in bathing suits playing. The team had not been aware of Mr. Everingham’s relationship with Sharleene nor his attendance at the party.

39. Given his history of adamantly refusing to share any information, including anything on cellphones and computers, Mr. Everingham’s behaviour was seemingly out of character. In a subsequent discussion with Dr. Gray, Mr. Everingham did not deny that the motivation to disclose the pictures was to avoid getting a conditional discharge and thereby frustrate CSC taking over his care. In Dr. Gray’s opinion, it is likely that he planned these actions deliberately to remain subject to a detention order.

40. Mr. Everingham consented to Dr. Gray contacting Sharleene. She ultimately confirmed that she sometimes consumed cannabis while cleaning Mr. Everingham’s apartment. She indicated that he had never smoked any cannabis in her presence and she believed that he was against the use of drugs, including cannabis. She was unaware of Mr. Everingham’s disposition restricting contact with children.

41. Following the positive urine test and the discovery of the photos, Mr. Everingham was admitted to hospital on September 20, 2022. The team was to reconsider Mr. Everingham residing in the community and what level of supervision would be warranted.

42. Dr. Gray included the following observations in the 2024 Hospital Report, at pp. 140-141:

“I note that Mr. Everingham’s risk factors are entirely criminogenic rather than based on mental health. Unlike someone who suffers from, for example, a psychotic illness, antecedents to future offences would not be readily evident to treatment team members with changes in mental health symptoms. The main risk factors would be his use of substances and access to potential victims. Use of substances can be monitored to a degree by our treatment team but access to victims is more of a challenge to monitor comprehensively even with frequent visits by the treatment team to his residence where he had more than a professional relationship with his cleaning lady and had access to her children and grandchildren.

The Review Board may also consider the fact that Mr. Everingham’s risk factors are entirely criminogenic rather than based on mental health. Some risk concerns highlighted in last year’s Reasons for Decision would be almost impossible for the forensic treatment team to monitor, such as his use of the internet or cellular phone while residing in the community…A full monitoring of his risk in the community would likely be done more comprehensively and successfully by the Correctional Services of Canada than the forensic outpatient team given the nature of the risks and the type of monitoring that seems to be envisioned by the Ontario Review Board.”

42. During Mr. Everingham’s admission to hospital it became apparent that he had improved in terms of his physical functioning. He was able to walk around the unit without discomfort or a limp. In light of these improvements, it initially was opined that Mr. Everingham could go to a supervised residence in the Brockville area. However, although Mr. Everingham appeared to ambulate relatively well when not aware that he was being observed by staff, he presented as unsteady when he noticed staff looking at him.

43. Unfortunately, Mr. Everingham was unwilling to work with the treatment team and his discharge back to the community was delayed. A visit to his apartment to ensure it continued to be an approved accommodation did not go well. The treatment team had grave concerns about Mr. Everingham being able to work with the outpatient team. There also were three incidents of cannabis use over the course of a six-month period from February to August 2023. Mr. Everingham admitted to using cannabis for pain control when confronted by staff.

44. Mr. Everingham has refused all medication for his physical issues. He has continued to take Lupron by injection every three months.

45. Mr. Everingham remained in hospital until he was granted a Leave of Absence back to his apartment in November 2024. During his time in the community, Mr. Everingham was visited once a day by members of the treatment team and weekly by Dr. Gray. Of note, this is the same level of supervision as prior to his readmission to hospital. It was anticipated that he would be formally discharged after his annual hearing in December.

Oral Evidence at the Hearing

46. Dr. Gray testified before the panel. He indicated that since the most recent disposition requires Mr. Everingham to reside in supervised accommodation, his apartment was no longer appropriate. As a result, Mr. Everingham was readmitted to hospital. Mr. Everingham accepted the admission without issue. He continues to exercise indirectly supervised passes in the community. He spends time at Kinda Electronics, where he helps his friend Ahmed. He also regularly accompanies Ahmad, who is an imam, to a mosque.

47. Dr. Gray reported that Mr. Everingham maintains contact with Sharleene. Mr. Everingham meets with her outside of her home. The treatment team has not received any complaints from members of the community about Mr. Everingham. Finally, Mr. Everingham received his most recent dose of Lupron this month.

48. Dr. Gray testified that the plan is to obtain supervised accommodations for Mr. Everingham. The doctor reiterated that those located in Brockville required the resident be able to use stairs. Given Mr. Everingham’s mobility issues, the team was looking for accommodations in the Kingston area. Dr. Gray indicated that Mr. Everingham is now amenable to that option.

49. Dr. Gray confirmed that the team was not providing any mental health treatment to Mr. Everingham save Lupron, a drug that is regularly prescribed and administered by CSC staff. Mr. Everingham was not participating in any programming or therapy. Dr. Gray indicated that, in his opinion, the hospital was capable of managing Mr. Everingham’s risk in the community.

50. In response to questions from Mr. Findlay, Dr. Gray agreed that the index offences were predatory in nature and were brutally violent. He agreed that Mr. Everingham continues to represent a significant threat to the safety of the public, in particular children. Dr. Gray testified that Mr. Everingham is still physically capable of harming children, notwithstanding his physical health issues. He is able to walk short distances and complete his activities of daily living (ADLs).

51. Dr. Gray agreed that Mr. Everingham’s diagnosis of Antisocial Personality Disorder leads to his continued manipulativeness. Dr. Gray also agreed that, were Mr. Everingham to be under the supervision of the CSC, he would be motivated to behave well in order to progress through the system. In contrast, while under the jurisdiction of the ORB, Mr. Everingham is motivated to strike a balance between being well enough for community living but not well enough for a conditional discharge. There is a disincentive to progress towards an absolute discharge.

52. In response to questions from Mr. McCuaig, Dr. Gray agreed that there was therapeutic value in the relationships that Mr. Everingham had developed while in the community. While at the service store, Mr. Everingham helps out the staff and socializes with others. It is a pro-social activity that provides Mr. Everingham with structure to his day.

53. Dr. Gray agreed that moving Mr. Everingham to a federal institution would “set him back a lot” in terms of his integration into the community. Although Mr. Everingham has no history of depression, he could become frustrated and angry which could result in deviant fantasies. That risk would be mitigated by the continued administration of Lupron and the reality of being in prison.

54. Dr. Gray stated that monitoring Mr. Everingham’s use of the internet is impossible. There is no evidence that Mr. Everingham has been visiting websites and he has no history of visiting sites that are illegal.

55. Dr. Gray testified that Mr. Everingham can walk short distances but he does not think that he can run. When he meets with Mr. Everingham, it is more of a mental status check. It is not therapy.

56. Dr. Gray indicated that the most important medication to mitigate Mr. Everingham’s risk is Lupron. When questioned as to whether cannabis impacted on the efficacy of Lupron, Dr. Gray indicated that cannabis can have an indirect effect and be disinhibiting. This could cause one to lose some of the apprehension around breaching a disposition. It could result in one being less mindful of conditions, for example, relating to children.

57. In terms of Mr. Everingham’s diagnoses, Dr. Gray testified that sexual sadism might be blunted at this point, due to Mr. Everingham’s age. The sadistic component of the disorder is driven by pleasure, not from one’s own sexual gratification, but rather from seeing suffering and humiliation of another person. Pleasure is derived from doing extreme harm to others. Dr. Gray noted that, at this time, he has not seen evidence that Mr. Everingham has deliberately tried to make people suffer or seem to derive pleasure from that. The Pedophilic Disorder is one of opportunity towards a vulnerable person, such as a young girl. Dr. Gray agreed that any re-offence would be catastrophic for a victim.

58. When asked about Mr. Everingham’s angry reaction to the team’s restricting his access to children, Dr. Gray stated that Mr. Everingham doesn’t like being told what to do, particularly if he feels that the position is “an overreach”. Mr. Everingham felt that the decision not to allow minors in his apartment, even if they were with their parents, was going beyond his disposition and overly restrictive. He indicated that he wanted to have relationships with parents and their children and he should not be deprived of that.

59. When asked about the perception that Mr. Everingham was “gaming the system” by manipulating his treatment team to do what he wanted, Dr. Gray responded that the legal framework and overriding threat of incarceration contribute to Mr. Everingham’s behaviour. Understandably, Mr. Everingham does not want to return to prison.

60. Dr. Gray described his weekly meetings with Mr. Everingham in the community. The doctor would review with him his current relationships and monitor to what extent he was trying to position himself to get in contact with children. The doctor would also cover relapse prevention techniques, using the rationale that it was in Mr. Everingham’s best interests to stay as far away as possible from children to avoid the perception and presumption that he was doing something inappropriate. Accordingly, these meetings were therapeutic.

61. Dr. Gray testified that he was concerned when Mr. Everingham showed him the photos of the children. He was concerned not only because Mr. Everingham was contacting them, but that he was taking pictures of them either for his viewing or to show Dr. Gray to shock him into readmitting him to hospital. Dr. Gray acknowledged that he would have had no idea of the contact or the photos taken but for Mr. Everingham spontaneously sharing the images.

62. Ms. Stoliker testified on behalf of CSC. She is a Senior Project Officer who is responsible for Mr. Everingham’s file. She indicated that, should Mr. Everingham come under the jurisdiction of CSC, he would be placed at Joyceville Institution, in the centralized assessment unit. Within 5 days, he would be interviewed by a parole officer and the assessment process would be completed within 90 days. The assessment would include a mental health assessment, previous reports that would be updated, and any information Mr. Everingham would like to provide. Mr. Everingham would then meet for a thorough interview with a correctional program officer for a sex offender assessment to be completed.

63. During the assessment process, the parole officer would complete an Assessment for Decision, which would include recommendations as to the appropriate security level and location for Mr. Everingham. It is likely that Mr. Everingham would be placed in a medium, or potentially, a minimum-security facility. The institutional head would make the final placement decision.

64. When asked when Mr. Everingham would be eligible to return to living in the community, Ms. Stoliker noted that Mr. Everingham has already passed his day parole and full parole eligibility dates. Based on his formulated release plan, a request would be made for a community strategy to determine if his risk can be managed in the community. A Parole Board of Canada hearing would be scheduled for five months after his admission. He could apply for day parole upon admission and have it determined at his hearing. If granted, his discharge would be dependent on the availability of a bed in a community half-way house.

65. In 2022, Mr. Everingham withdrew his consent to allow the sharing of information between the treatment team and CSC. Prior to that, the parole officer assigned to Mr. Everingham’s case had made a recommendation that day and full parole be denied because he had not yet participated in any sex offender treatment. The position was that Mr. Everingham had yet to address the risk that he presented if residing in the community. This initial assessment would be updated.

66. Programming and referrals would be made by Mr. Everingham’s institutional parole officer. Mr. Everingham meets the criteria for High Intensity Sex Offender programming. However, because of his age, his treatment with Lupron and the fact that he has participated in some programming, he has been recommended to participate in the Moderate Sex Offender program.

67. Ms. Stoliker confirmed that Mr. Everingham could continue to receive injections of Lupron and he also would be able to access psychiatric services. Ms. Stoliker also confirmed that substance abuse counseling would be available. There also is ongoing monitoring through urine drug screens.

68. With respect to sexual offender programming, the parole officer would likely want to see Mr. Everingham complete a cognitive behavioural program before making a recommendation for his release into the community. The Parole Board of Canada would make the ultimate decision as to his release. In Ms. Stoliker’s experience half-way houses in the community may not be prepared to accept someone with a background such as Mr. Everingham’s who has not completed such a program. That particular program is not available in the community.

69. Ms. Stoliker testified that the moderate sex offender programming is 3 months in duration. Mr. Everingham would be placed at the top of the wait list given he is past his eligibility dates. His transfer out of Joyceville would be to an institution that provides that program. Ms. Stoliker could not provide any information as to the wait times involved in such a transfer.

70. Mr. Everingham would be assigned a psychiatrist in order to administer his medication. In addition, should there be a deterioration in his mental status, a referral to psychiatric services would be provided.

71. In response to questions from the panel, Ms. Stoliker indicated that CSC is particularly well-equipped to both assess and treat persons with diagnoses similar to Mr. Everingham. CSC has an extensive and robust treatment program that includes a comprehensive risk assessment for those particular types of disorders. Given his life sentence, he would continue to be monitored for the presence of any risk and the management of that on an ongoing basis, even while residing in the community.

Submissions

72. Dr. Gray reiterated his initial position that he had no objections to Mr. Everingham remaining under their care. He acknowledged the concern over the lack of oversight but for the staff visits. The new disposition would allow for increased supervision and oversight.

73. Mr. Findlay referred to the most relevant criteria to be examined pursuant to s. 672.68(3) of the Criminal Code, in particular, the need to protect the public from dangerous persons, and the treatment needs of the offender and the availability of suitable treatment resources to address those needs. Mr. Everingham’s continues to represent a significant threat to the safety of the public, specifically towards the most vulnerable, children. This is despite his age and his treatment with Lupron. In his submission, Mr. Everingham has some interest in presenting himself as a risk, by deliberately violating the terms of his disposition, referring to the photos taken of the children. If placed under the jurisdiction of CSC, Mr. Everingham’s motivation will be to do the best that he possibly can in order to reside in the community. CSC has more robust programming and can continue to provide Mr. Everingham treatment with Lupron.

74. Mr. McCuaig submitted that Mr. Everingham had progressed to the point that he was considered appropriate to reside in the community in his own apartment. In his submission, “it is bizarre to find that Mr. Everingham should now be incarcerated’. Mr. McCuaig referenced Dr. Gray’s evidence that Mr. Everingham was being adequately managed by the treatment team. The strides that he has made during the course of his reintegration into the community would be swept aside. Further, the length of time that Mr. Everingham would remain in custody is unknown given the wait lists for a transfer out of Joyceville Institution and the availability of programming.

Analysis and Conclusion

75. For ease of reference, the Board sets out the relevant statutory provisions:

672.68(2) On application by the Minister or of its own motion, where the Review Board is of the opinion that the place of custody of a dual status offender pursuant to a sentence or custodial disposition made by the court is inappropriate to meet the mental health needs of the offender or to safeguard the well-being of other persons, the Review Board shall, after giving the offender and the Minister reasonable notice, decide whether to place the offender in custody in a hospital or in a prison.

(3) In making a placement decision, the Review Board shall take into consideration:

a) the need to protect the public from dangerous persons;

b) the treatment needs of the offender and the availability of suitable treatment resources to address those needs;

c) whether the offender would consent to or is a suitable candidate for treatment;

d) any submissions made to the Review Board by the offender or any other party to the proceedings and any assessment report submitted in writing to the Review Board; and

e) any other factors that the Review Board considers relevant.

672.69(2) The Review Board shall hold a hearing as soon as is practicable to review a placement decision, on application by the Minister or the dual status offender who is the subject of the decision, where the Review Board is satisfied that a significant change in circumstances requires it.

(3) The Review Board may of its own motion hold a hearing to review a placement decision after giving the Minister and the dual status offender who is subject to is reasonable notice.

Preliminary Statutory Issues – The Test for Review

76. There are three separate subsections that deal with a review of a dual status offender’s placement.³ Section 672.68(2) pertains to the review of a placement decision made by a court. The Board must be of the opinion that the placement is inappropriate to meet the mental health needs of the offender or to safeguard the well-being of other persons. As this subsection is a review of a court decision, it is not operative in the instant case.

77. A placement review under s.672.69 may be sought by the dual status offender, the Minister or the Review Board. Where the dual status offender or Minister seeks a placement review, s.672.69(2) expressly provides that the Review Board must be “satisfied that a significant change in circumstances requires it”. This subsection also is not applicable to the case at hand.

78. The third and operative subsection - s.672.69(3)- allows for the Board to initiate a review on its own motion. This provision contains no “significant change in circumstances” language, indeed, any language fettering the Board’s discretion. It stands to reason, however, that the Board would only order such a placement review if it had a concern about the appropriateness of a governing placement. This clearly was the case in December 2024, when the Board ordered this review.

79. Counsel for Mr. Everingham and and Dr. Gray made submissions touching on the scope of the Board’s authority. Dr. Gray for his part raised whether there is any presumption in play, i.e., whether, for example, a dual status offender under the care of a hospital should remain there unless their risk cannot be managed, in which case they should be placed under the jurisdiction of the CSC. The Board finds no such presumption in play under s.679.69(3), although accepts that there should be an articulable reason to make a placement change, informed by the paramount consideration, namely, the safety of the public.

80. Mr. McCuaig, on behalf of Mr. Everingham, submitted that the Board cannot make a placement change in the absence of a significant change in circumstances, in apparent reference to the language of s. 672.69(2). However, the Board is proceeding under s.672.69(3) which, again, does not include such a requirement. The only stated requirement under that subsection is that the parties be given reasonable notice.

81. Assuming solely for the sake of argument that the threshold of a significant change in circumstances also governs the Board and is operative in these circumstances, it is the position of the Board that the considerations that informed its decision, dated December 9, 2024, directing this review collectively met the threshold of “significant change in circumstances”. In brief summary, Mr. Everingham’s recent failed transition to the community ultimately confirmed a litany of problems and challenges that hitherto had not been evident or as evident while Mr. Everingham remained under strict detention. Matters had “come to a head”.

82. Once the Board determines that a review should be held, the criteria for making the placement decision are found under s. 672.68(3).

Factors Under s.672.68(3):

a. The need to protect the public from dangerous persons

83. Dr. Gray testified that Mr. Everingham is still a significant threat to the public, in particular children. This is notwithstanding his mobility issues (which remain unclear, in the Board’s view) and his treatment with Lupron. The Hospital Reports include repeated warnings about Mr. Everingham’s extreme risk and the need for close supervision. Should Mr. Everingham reoffend, based on his history and personal factors, this would almost certainly be a sexual offence against a child. Based on the evidence received, this is a very real, and substantial, threat. Without strict supervision, it is a likelihood, if not more.

84. Mr. Everingham’s risk to the safety of the public has risen significantly with his discharge into the community. Previously, his risk was managed in a secure forensic facility. The panel is concerned about the current level of supervision provided by the hospital. Mr. Everingham has repeatedly kept information and behaviour from the treatment team. The team has been surprised on more than one occasion about Mr. Everingham having relationships with women, either on line or in the community. Most recently the team was surprised by Mr. Everingham’s relationship with Sharleene, her teenage daughter and her young granddaughters. But for Mr. Everingham’s arguably strategic disclosure of the extent of the relationship, the team would be none the wiser.

85. Mr. Everingham’s ability to access children and his desire to have a relationship with them is alarming. The taking of photos of young children playing is even more alarming. Again, none of this was known to Dr. Gray and the treatment team. This is when they were attending at his residence on a daily basis and Dr. Gray was seeing him weekly and presumably monitoring Mr. Everingham’s access to children.

86. To the extent that one might be tempted to minimize the above conduct as evidence of Mr. Everingham, colloquially, gaming the system (as Brockville staff candidly allow for, although in different terms) in order to remain under the auspices of the ORB, the Board nonetheless regards such conduct as troubling. First, gaming is dishonest and manipulative conduct. Second, and more seriously, the overlap with Mr. Everingham’s horrific criminal past could not be clearer or more chilling. If this is just gaming, Mr. Everingham could not have selected more disturbing flashpoints. However, the situation is all the more serious if this conduct is not just gaming. Finally, it surely is not in the public interest that an offender remain under the jurisdiction of the ORB by gaming the system unless, of course, that remains forensically necessary.

87. Additionally, while Mr. Everingham was residing in the community he was using cannabis, again unbeknownst to the treatment team. It took multiple requests and a week went by before he finally provided a sample. The positive result contradicted his repeated denials. Mr. Everingham continued to acquire and use cannabis when in hospital. This is of particular concern in light of Dr. Gray’s evidence that cannabis use could result in one being less mindful of conditions, for example, relating to children.

88. In brief, and regrettably, Mr. Everingham cannot be trusted. And such trust is required for Mr. Everingham to be living in the community, even with staff check-ins. The Board can but reiterate the prior comment of the Court of Appeal: “the hospital cannot be expected to manage [Mr. Everingham’s] risk based solely on his self-reporting”. Yet that is precisely what the treatment team did, again.⁴

b. The treatment needs of the offender and the availability of suitable treatment resources to address those needs

89. Mr. Everingham’s risk factors are entirely criminogenic. His diagnoses are Sexual Sadism Disorder, Pedophilic Disorder, Polysubstance Abuse Disorder and Antisocial Personality Disorder. He has not been prescribed nor required any psychiatric medication, save Lupron. He is not receiving any medication to address any psychosis or mood disorder as there has been no evidence that he suffers from psychosis. As Dr. Gray indicated, the focus of a forensic hospital is to monitor mental illness symptoms, to quickly react when the symptoms impact on the person’s risk to the safety of the public. The brief daily drop-ins by staff and weekly visits by Dr. Gray appear to be more in keeping with mental status assessments, which are geared to identifying any changes. Whatever mental health benefit his continued supervision by Brockville staff may provide (there may be some), this is not the treatment that Mr. Everingham requires in order to progress into the community. As discussed below, that treatment can be provided under the auspices of the CSC.

90. To the extent of its limited availability, Mr. Everingham has not engaged in any sex offender programming or treatment in almost 30 years, but for the administration of Lupron. In contrast, CSC has a great deal of experience dealing with offenders with backgrounds and diagnoses similar to Mr. Everingham. There is a much better coordinated regimen of sex offender programming within CSC than at Brockville, or even the forensic system as a whole. The program includes a comprehensive risk assessment strategy and ongoing monitoring. It is CSC’s position that completing this programming is critical prior to a release in the community. Once an offender is in the community, CSC is in a better position, through parole, to manage that risk.

c. Whether the offender would consent to or is a suitable candidate for treatment

91. Broadly speaking, it is fair comment that Mr. Everingham has not been interested in participating in recommended programming while under the jurisdiction of the ORB. As such, Mr. Everingham may not be an enthusiastic treatment candidate if returned to the jurisdiction of the CSC. This said, the Board agrees with the submission of Mr. Findlay that the prospect of release into the community may well provide Mr. Everingham with the necessary incentive to participate in any relevant CSC treatment and programming.

Conclusion

92. It is clear that Mr. Everingham’s current placement is inappropriate. Importantly, he has not engaged in any meaningful treatment, in particular treatment focused on his sexual diagnoses, for years. CSC offers comprehensive treatment and support in that regard. Transferring his custody to the CSC better affords him a chance to transition to the community. Further, and critically, it also is clear that public safety will be better protected through the identification, treatment, monitoring and management of Mr. Everingham’s risk factors on the ongoing basis that is required in the circumstances of his criminogenic factors. Accordingly, the panel unanimously finds that the appropriate placement for Mr. Everingham is under the jurisdiction of the CSC.

93. To Mr. McCuaig’s points, the Board recognizes the seeming incongruity of returning Mr. Everingham to prison, where he recently was living in the community. However, among other considerations, this is a function of his own troubling behaviour while living in the community, and the fact of his still being under life sentence for serious crimes of violence. As the Board observed at the outset, even were Mr. Everingham to be granted a discharge, he would fall back under the jurisdiction of the CSC, for processing under that regime. The Board is hopeful that in time Mr. Everingham will progress through the CSC regime and its resources and soon be living in the community under parole.

DATED this 18th day of March 2025, at the City of Toronto, in the Toronto Region.

Ms. C. Finley

Alternate Chairperson

Office of the Registrar

Ontario Review Board

Footnotes

1. 1See Reasons for Disposition, November 28, 2011.
2. 2Re Everingham, 2014 ONCA 743, para 24.
3. 3The Ontario Court of Appeal considered these subsections in Walker Re, 2019 ONCA 957
4. 4See para 25 above with footnote