Re Terrence Shorter, 2025 CanLII 23525

Ontario Review Board

Re: Terrence Shorter

ORB File No: 7256

Hearing held on: Monday, January 20, 2025

Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. M. Labrosse Members: Dr. R. Buckingham Dr. W. Loza Ms. L. Banks Mr. W. Apted

Parties Appearing:

Accused: Terrence Shorter Counsel: Ms. M. Murphy

The person in charge of hospital: Representative: Dr. M. Choptiany

Attorney General of Ontario: Counsel: Mr. C. Ponesse

REASONS FOR DISPOSITION

(Dated March 17, 2025)

Introduction

1. On November 16, 2017, Mr. Terrence Shorter was found unfit to stand trial on account of mental disorder on a charge of manslaughter, contrary to the Criminal Code of Canada.

2. Mr. Shorter is currently subject to a Disposition of the Ontario Review Board dated February 1, 2024, which detains him at the Forensic Service of the Centre for Addiction and Mental Health (“CAMH”), also referred to as “the hospital”.

3. On January 20, 2025, the Ontario Review Board convened a hearing at CAMH to conduct the annual review of Mr. Shorter's Disposition pursuant to ss. 672.48(1) and 672.81(1) of the Criminal Code. As has been the case for at least the last annual hearing, Mr. Shorter refused to attend his hearing in person. Counsel for Mr. Shorter, Ms. Murphy, advised that she had been instructed by Mr. Shorter’s sisters, the substitute decision makers (“SDM”), both of whom attended by video conference, to proceed with the hearing in his absence. On the consent of all parties, an order was made permitting Mr. Shorter to be absent from this hearing pursuant to s. 672.5(10)(a) of the Criminal Code. A hospital report dated January 13, 2025, was entered as Exhibit 1 for the hearing.

4. The issues for this hearing are whether Mr. Shorter continues to be unfit to stand trial. If so, the Board must then determine whether Mr. Shorter continues to pose a significant threat to the safety of the public and, in the affirmative, to make a disposition that is necessary and appropriate.

5. For the reasons set out below, and based on the joint submission of the parties, the Board finds that Mr. Shorter remains unfit to stand trial, that he is likely permanently unfit, and that he continues to represent a significant threat to the safety of the public. The Board further finds that the necessary and appropriate disposition to manage the threat posed by Mr. Shorter is a continuation of the existing detention order, on the same terms and conditions.

Outstanding Charges

6. The details of the outstanding charges against Mr. Shorter are extracted from the Hospital Report as follows:

“CHARGE: MANSLAUGHTER CC 236

DATE: FEBRUARY 26TH, 2017

LOCATION: BRIDGEPOINT HEALTH CENTRE, 7TH FLOOR 1 BRIDGEPOINT ROAD, TORONTO

VICTIM: Catherine MCNAMEE, 90 years

On February 26th, 2017 at approximately 6AM the victim in this matter, Catherine MCNAMEE was walking in the hallway of the 7th floor of the Bridgepoint Health Centre, near room #125.

The accused shouted at the victim to "get away from me". The accused is a resident of the Bridgepoint Health Centre, room #125. This interaction was observed by a Security Officer employed by the Health Centre. Soon after this interaction the accused exited his room and pushed the victim. The victim fell to the floor and struck her head.

The security officer took photographs of the victim and the accused as he walked away.

Emergency Services were contacted and the victim was transported to St. Michael's Hospital by Ambulance. The victim was diagnosed with an inter-cranial bleed. Treatment was limited due to the victim's age and she was eventually released back to Bridgepoint Health Centre on March 1st, 2016 and was to be monitored by hospital staff. The victim's health deteriorated and on March 4th, 2017 at approximately 10PM the victim died. The Coroner attended Bridgepoint Health Centre on March 5th, 2017 and commenced an investigation. An autopsy was ordered and the deceased was followed by police officers to the morgue.

Officers arrested the accused, Terry SHORTER for the assault that occurred on February 26th, 2017. The accused was given his rights to counsel and transported to 55 Division where he was held pending a bail hearing.

Ms. McNamee was a 90 year old, frail, elderly woman with clinically severe dementia. Although overall she was clinically stable in the months prior to her head injury, this is relative to her fragile baseline that was largely a consequence of her advanced age and chronic medical issues.

A post mortem was conducted by Dr. Kris Cunningham, Forensic Pathologist. Dr Cunningham determined the cause of death to be:

ACUTE ASPIRATION PNEUMONIA FOLLOWING BLUNT INJURIES OF THE HEAD AND BUTTOCK IN A FRAIL ELDERLY WOMAN WITH DEMENTIA

The blunt impact injuries to her head and left buttock, in themselves would not have been independently lethal in an otherwise healthy individual. However, given her relatively delicate medical state, the blunt injuries likely started a chain of events that she was unable to manage physiologically. This would not be unexpected in a woman of this age and medical status. The physical and psychological stress of the trauma (although not directly lethal), on a background of severe dementia and frail constitution, likely triggered the subsequent aspiration pneumonia, which represented the immediate cause for her death.

As a result on April 21, 2017, the charged were upgraded to manslaughter. The accused was advised of his new charges.”

Background History

7. Mr. Shorter's background history is set out in detail in the Hospital Report and further extracted in last year's Reasons for Disposition as follows:

“He has a lengthy criminal record, which includes several assault-related convictions prior to the time of the Outstanding Charge.

Mr. Shorter’s personal history, and the allegations surrounding the Outstanding Charge, are set out in detail in the Hospital Report. The following excerpt from last year’s Reasons for Disposition provides a useful summary:

Mr. Shorter moved to Canada at the age of six. He lived in Toronto for most of his life. He completed some grade 11 or 12 credits but did not obtain a high school diploma.

Mr. Shorter was diagnosed with schizophrenia in his early 20s and was hospitalized at various hospitals in the Toronto region. He has a history of medication non-adherence and refusal. In addition to his lengthy psychiatric history, Mr. Shorter also has a lengthy criminal record commencing in 1978 and including multiple convictions for assault and assault causing bodily harm.

In June 2007, when he was approximately 58 years old, Mr. Shorter suffered a traumatic brain injury, likely from a physical assault. He suffers from vascular dementia secondary to the traumatic brain injury and has a poor memory and difficulty recalling events that have occurred since the 1970s. In a psychological report prepared in June 2018, Dr. Percy Wright found that Mr. Shorter's ability to consolidate memory into longer term storage is "grossly impaired", and that while fitness coaching may be of some benefit, this will likely not assist Mr. Shorter in incorporating information into his longer-term memory.

Sometime in the spring of 2015, Mr. Shorter suffered an ankle fracture. As a result, in May 2015, he was admitted to a long-term care bed at Bridgepoint Health (Bridgepoint) in Toronto, where he resided until his arrest in respect of the index offence in late February 2017.

The allegations regarding the index offence are as follows: Early in the morning on February 26, 2017, Catherine McNamee, a 90-year-old Bridgepoint patient, was walking in the hallway outside of Mr. Shorter's room. Mr. Shorter shouted at Ms. McNamee to get away from him. He pushed her and she fell to the floor, striking her head. Ms. McNamee suffered an internal cranial bleed and, on March 4, 2017, died as a result of complications associated with the fall. As described in the post-mortem report, the blunt impact injuries that Ms. McNamee suffered as a result of her fall would not have been independently lethal in an otherwise healthy individual. However, given her severe dementia and medical frailty, the physical and psychological stress of the trauma of the fall likely triggered the aspiration pneumonia which was ultimately the cause of Ms. McNamee’s death.”

Mr. Shorter was found unfit to stand trial on November 16, 2017. He was then admitted to the Forensic Assessment Treatment Unit at CAMH on November 23, 2017. Mr. Shorter was transferred to a forensic secure unit of the hospital on July 13, 2018, where he remains to date. He is being treated with paliperidone, a long-acting injectable antipsychotic, as well as valproic acid by substitute consent provided by his sisters

8. Mr. Shorter's current diagnoses are:

i) Schizophrenia

ii) Mild Neurocognitive Disorder, Multiple Etiologies (Vascular Disease, Traumatic Brain Injury)

Evidence at the Hearing

9. The hospital's evidence was presented through its report dated January 13, 2025, and through the oral testimony of Mr. Shorter’s attending psychiatrist, Dr. M. Choptiany. This evidence is summarized below.

10. Dr. Choptiany adopted the Hospital Report, and by way of update, advised that he had since met again with Mr. Shorter and conducted a further fitness assessment. According to Dr. Choptiany, though Mr. Shorter was able to answer some questions regarding the role of various people in the court process and that he was able to understand potential consequences of the outcome of a trial, he continues to lack the ability to instruct counsel and to meaningfully participate in a trial. It is stated in the Hospital Report that Mr. Shorter does not have any recollection of the index offences.

11. In the opinion of Dr. Choptiany, Mr. Shorter is likely permanently unfit but likely still meets the threshold for significant threat to the safety of the public as he continues to manifest behaviours that are similar to those at the time of the index offences. Mr. Shorter is prone to both verbal and physical outbursts, particularly when there is a high level of noise on the unit. His physical outbursts are unpredictable, and he continues to have the physical ability to cause physical harm to those around him. Dr. Choptiany recounted an incident where Mr. Shorter had attempted to choke a co-patient on the unit.

12. Mr. Shorter is well-supported on the secure unit of the hospital where he continues to reside. It is unlikely that he will be moved as a less secure unit would not be sufficient to support his needs and manage the risk to others. The doctor advised that the higher staff to patient complement of a secure forensic unit allows for more immediate staff intervention when Mr. Shorter becomes agitated, thereby reducing the risk of harm to co-patients.

13. In response to questions posed to him by counsel for the Attorney General, Mr. Ponesse, Dr. Choptiany explained that there is a certain ebb and flow to the aggression exhibited by Mr. Shorter. The verbal and physical aggression remain unpredictable. Dr. Choptiany does not believe that Mr. Shorter would be suitable for long-term care facilities given the continuation of those outbursts. In consultation with the long-term care coordinator of CAMH, it has been confirmed that Mr. Shorter would not be accepted in any long-term care facilities or the Geriatric Unit of the hospital because of his behaviours.

14. In response to questions posed to him by counsel for Mr. Shorter, Ms. Murphy, Dr. Choptiany confirmed that Mr. Shorter continues to have problems with male staff and male co-patients as he has in prior years, though he appears to tolerate working with Dr. Choptiany and as well as with a male occupational therapist on the unit, with whom he reportedly gets along.

15. Overall, the opinion of the treatment team is that Mr. Shorter is likely as stable as he can be on his current medications. Attempts to engage him in behavioural therapy or a behavioural approach to managing him on the unit have not worked.

16. Mr. Shorter’s two sisters, Ms. Joan Shorter and Ms. Jill Darnell, are Mr. Shorter’s SDMs and are frequently in contact with the treatment team and with Mr. Shorter. They continue to support the current placement for their brother.

17. In response to questions posed to him by members of the panel, Dr. Choptiany stated that the last psychological assessment conducted on Mr. Shorter was in 2018 and that there have been no updates because there does not appear to be any progression in Mr. Shorter's condition. According to anecdotal evidence, Mr. Shorter appears more confused, but his situation has otherwise remained stable. Dr. Choptiany does not believe that there are any facilities in the community that can currently manage Mr. Shorter's behaviours. There would have to be improvement or even absence of those outbursts for him to be acceptable at any of the long-term care facilities. Dr. Choptiany confirmed that Mr. Shorter’s physical health is stable though he does have mobility issues and has been encouraged to use a walker which he refuses to do. Mr. Shorter is on an all-male unit because all of the secure units of the hospital are either all-male or all-female.

18. Counsel for the Attorney General, Mr. Ponesse, confirmed that the last Prima facie hearing for Mr. Shorter appears to have taken place on January 20, 2022.

Submissions of the Parties

19. The Board was presented with a joint submission of all parties that Mr. Shorter continues to be unfit to stand trial and that the current Disposition, a detention order, remains necessary and appropriate to manage the risk.

Analysis and Conclusion

Fitness to Stand Trial

20. The test for fitness to stand trial, as set out in R. v. Taylor, is one of limited cognitive capacity. This means that the person charged must be able to understand the nature and object of the proceedings and their possible consequences and that he can recount to counsel facts necessary to allow counsel to properly prepare a defence. This last point has been elaborated upon by the Court of Appeal in R. v. Morrissey, 2007 ONCA 770, at para. 29, wherein Blair J.A. stated:

“The ability to communicate with counsel in the context of a fitness inquiry speaks to the ability to seek and receive legal advice.”

21. At para. 36 the Court stated:

“An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence... Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.”

22. The Court of Appeal addressed the fitness tests most recently in R. v. Bharwani, 2023 ONCA 203. The Court emphasized the need for meaningful participation in proceedings to be fit for trial.

23. Having considered the evidence presented at the hearing and the joint submission of the parties, the Board agrees that Mr. Shorter continues to be unfit to stand trial and that he is likely permanently unfit. Mr. Shorter is diagnosed with schizophrenia and with neurocognitive disorders. Mr. Shorter is unable to recall the nature of the charges against him. Though he is able to identify certain aspects of the court process, his ability to process and retain information is limited due to his cognitive impairment. The uncontradicted evidence of the hospital is that Mr. Shorter would be unable to instruct counsel and to meaningfully participate in a trial.

Significant Threat to the Safety of the Public

24. The hospital risk assessment is set out on p. 20 of the Hospital Report. On the basis of the entire evidentiary record, including the oral testimony of Dr. Choptiany, the Board finds that Mr. Shorter continues to meet the threshold for significant threat to the safety of the public as a result of the ongoing verbal and physical aggression that he manifests despite being maintained on a secure hospital unit. The evidence persuades us that Mr. Shorter could not be managed on a less secure unit let alone that he be managed in a community setting in a long-term care facility.

25. A detention order, on the same terms and conditions, continues to be required to manage the risk. In coming to our decision, we have taken into consideration the factors at s. 672.54 of the Criminal Code of Canada, namely the protection of the public, which is the paramount consideration, the mental condition of the accused, his reintegration into society and his other needs.

DATED this 17^th^ day of March, 2025, at the City of Toronto, in the Region of Toronto.

Ms. M. Labrosse Alternate Chairperson

__________________ Office of the Registrar Ontario Review Board