Ontario Review Board
Re: Frederick O’Donnell
ORB File No: 4349
Hearing held on: Monday, January 20, 2025
Place of Hearing: Providence Care Hospital, Kingston
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. K.A. Connidis
Members: Dr. P. Wright
Dr. R. Kunjukrishnan
Mr. A. Bouvier
Parties Appearing:
Accused: Frederick O’Donnell
Counsel: Mr. P. Casey
Person in charge of Hospital: Counsel: Ms. T. Tom
Attorney-General of Ontario: Counsel: Mr. A. Scott
REASONS FOR DISPOSITION
(Dated March 21, 2025)
Introduction
On November 28, 2005, Mr. O’Donnell was found not criminally responsible on account of mental disorder ('NCR') on charges of repeated communication causing fear for safety (x2), utter threats to cause death (x4), utter threat to cause damage to property (x1), and fail to comply with probation order (x1).
In addition, on December 22, 2005, he was found NCR on charges of utter death threats (x6), utter threat to cause damage to property (x1), criminal harassment (x1), and fail to comply with probation order (x1). Mr. O'Donnell has remained under the Board's jurisdiction since then.
Mr. O’Donnell is currently subject to an Ontario Review Board ('Board') Disposition dated October 31, 2023, under which he is detained at the Secure Forensic Unit of the hospital, Providence Care Hospital ('PCH') in Kingston, with privileges extending to living in the community in a 24-hour supervised Developmental Sector Home.
On January 20, 2025, this panel of the Board convened at the hospital to conduct the annual disposition review for Mr. O’Donnell.
The Issues, Evidence Introduced, and Parties' Positions at the Hearing
The issues to be decided were whether Mr. O’Donnell poses a significant threat to the safety of the public at this time, and, if so, what is disposition is necessary and appropriate for him for the coming year. In deciding the second issue, the Board is required by s. 672.54 of the Criminal Code to consider four factors, being the safety of the public, as the paramount consideration, and Mr. O’Donnell's mental condition, reintegration into society, and other needs.
The evidence included a Hospital Report dated September 27, 2024 (the 'Hospital Report') and the viva voce evidence of Dr. Z. Selhi.
At the outset of the hearing, Ms. Tom advised that the hospital was recommending that all the same terms of Mr. O'Donnell's current Disposition be continued in his new disposition for the coming year. Both Mr. Scott for the Attorney General and Mr. Casey for Mr. O'Donnell supported the recommendation. In closing submissions, the parties maintained that joint position. For the reasons given below, the Board agreed, and ordered Mr. O'Donnell's new Disposition accordingly.
Index Offences
- The two sets of index offences are described in the Hospital Report (pgs. 2-5), and have been fairly summarized as follows in a number of recent Board Reasons for Disposition:
"Between August 2001 and October 2005, Mr. O'Donell made eight communications mostly with a former probation officer of his, and one to a former uncle and one to his grandmother. These communications were by letter and among other things threatened death, hatred, and assaults. Additionally, his mother received a number of phone calls from him, threatening to kill her.
"Between February and October of 2005, Mr. O'Donell made nine communications also of a threatening nature, either by letter or by phone calls, to the same former probation officer and the same uncle.
"In each set of offences, a number of the offences took place while he was under a probation order to keep the peace, and he was also charged with failing to comply with these orders."
Relevant Prior Personal and Mental Health History
The Hospital Report should be referred to for an account of Mr. O'Donnell's relevant past history. As that Report is an exhibit, its detailed contents need not be reiterated here.
However, this brief summary is given. Mr. O’Donnell is now 52 years old. He was born in Toronto, to parents who both drank heavily, reportedly including during his mother's pregnancy with him. His mother had been unable to care for him, and his maternal grandmother became his primary caregiver. When he was three years old, his parents separated. He resided in foster care.
At an early age, he experienced motor and speech delay, and was provided with special education classes at school. He has an early history of aggression and oppositional behaviour with others, and had tried to kill a pet kitten. By eighteen years old, Mr. O'Donnell had been able to attain a grade five or six education. He then worked for short periods in labouring type work, but has been unemployed for most of his adult life, and has been supported through ODSP. For years, he lived in hostels and on the streets.
Mr. O’Donnell had a past extensive history of alcohol-related substance use. He also reported using cannabis and magic mushrooms, has a history of experimenting with cocaine, and has used Listerine and rubbing alcohol. He has a long history of threatening to kill himself, and threatening his grandmother and his mother. In his twenties, he reportedly broke his cat's back when he was intoxicated. He has often been incarcerated on criminal charges and convictions, and has been the subject of restraining orders involving many of his family members. He has had many psychiatric hospital admissions as an adult, detailed in the Hospital Report.
A clinical psychology assessment in 2008, when Mr. O'Donnell was 36 years old, concluded that his intellectual functioning fell in the 'extremely low' range, below 99 percent of his peers (a decline from his previously reported 'borderline' range of functioning), and that his compromised intellectual functioning posed a significant barrier to learning verbally mediated abstract concepts, and would affect his ability to benefit from therapeutic programs.
Current Diagnoses
- Mr. O'Donnell's current psychiatric diagnoses, described in some detail in last year's Boards' Reasons for Disposition of December 3, 2023, and Reasons for Decision on ROL review of July 22, 2024, are set out in summary on the cover page of the Hospital Report as follows:
(1) Intellectual Development Disorder (Mild-Moderate),
(2) Paraphilia(s), by History,
(3) Personality Traits or Disorder, by History, and
(4) Substance Use Disorder(s), by History.
- Mr. O’Donnell has a lengthy criminal record beginning in 1992, outlined in the Hospital Report (pgs. 5-7). This record includes convictions for many property offences, and also for assault, uttering threats, sexual assaults, criminal harassment, indecent telephone calls and uttering threats to cause death. As noted above, his history includes incarcerations due to criminal charges and convictions, restraining orders, and diversions to mental health care.
Course under the Board's Jurisdiction, from the Hospital Report
Reference should be made to the Hospital Report, for detailed annual accounts of Mr. O'Donnell's course under the Board's jurisdiction following the NCR findings in late 2005. Again, that Report's contents need not be reiterated here, but the following outline is noted.
Under his initial disposition, Mr. O'Donnell was detained in January 2006 at the former Oak Ridge Division of the former Mental Health Centre, Penetanguishene – now the High Secure Forensic Programs Division of Waypoint Centre for Mental Health Care ('Provincial Division' of 'Waypoint'). He remained there for ten years.
In February 2016, he was transferred to the Secure Forensic Unit of PCH in Kingston. His September 2019 Disposition expanded his privileges to include the opportunity to live in the community in a 24-hour supervised Developmental Services Ontario ('DSO') sector home.
In the past reporting year, Mr. O'Donnell was noted to have increasing affective and behavioural lability since approximately December 2023 or January 2024, with generalized anxiety, some changes in cognitive functioning, multiple physical concerns including self-reports of frequent falls, and poor skills for coping with stress. These symptoms appeared to worsen as his discharge to community living approached, and they led to several medical investigations. Adjustments were made to his medications, and he was described as being managed relatively well by a combination of medications and extensive psychotherapy. At the same time, his anxiety was seen to affect his therapeutic relationship with his team, and his stress and impulsivity were noted to lead to his sabotaging his care.
In March 2024, Mr. O'Donnell began his transition to live in a Dual Diagnosis Transitional Rehabilitation Housing Program ('DD-TRHP') community home, under the joint care of the PCH Forensic Mental Health Outpatient Team ('Outpatient Team') and the Community Living association of Kingston and District ('CLKD').
This DD-TRHP home is a newly-established 24-7-staff supervised, highly-structured and accessible house in the Kingston community, for providing daily living support for residents with dual diagnoses, i.e., with developmental disabilities and also other mental health concerns and under forensic system oversight. Mr. O’Donnell was supported in making this transition by his treatment team's Occupational Therapist, who had worked extensively with him since 2016; this support included helping to obtain physical supports he needed to live safely in the home, and communing with the home staff about his level of independent functioning.
On April 15, 2024, Mr. O’Donnell was fully discharged to live as an outpatient in the DD-TRHP home. He was the home's first resident. Over the first two months there, his behaviour regressed, with increasing agitation, deteriorating functioning, and grandiose, bizarre, and some threatening behaviour. This apparently developed (Hospital Report, pg. 121) in the context of his psychosocial stress in the transition, the poor boundaries and inconsistent management of his behaviours by staff at the home, and a second resident beginning, in early/mid-May, the process of her transition to living in the home.
On June 10, 2024, he was readmitted to the Forensic Mental Health ('FMH') inpatient unit of PCH, Pod A, following what is described in the Hospital Report (pg. 124) as a decompensation in his mental state and bizarre behaviours over the weekend, placing both himself and the public at risk of harm. This significantly increased restriction on his liberty ( 'ROL') was upheld as warranted on the Board's ROL review. The intention at the time of his readmission was for him to return to this community home when his mental state and behaviour had stabilized.
Mr. O’Donnell remains in detention at the hospital's FMH unit. Initially, his behaviours worsened (including in verbal and physical aggression, sexually and other inappropriate acts, and medication non-compliance). In late July, a behavioural plan was initiated to address his worsening maladaptive behaviours and poor coping skills. On August 9th, he was transferred to his previous housing unit on Pod C. He was placed in seclusions on six occasions between June 17th and August 30th, twice each month. He was described as coping better throughout September, until September 26th, when his highly agitated and aggressive state and his threats to kill staff led to his being placed in a seventh seclusion.
Viva Voce Evidence of Dr. Z. Selhi
- Dr. Selhi has been Mr. O'Donnell's treating psychiatrist since April 2024, and is a co-author and co-signatory of the Hospital Report. Dr. Selhi testified in chief, in summary, as follows:
(a) Dr. Selhi confirmed her opinion remains, as set out in the Hospital Report, that Mr. O’Donnell represents a significant threat to the safety of the public. She noted his significant history during a long time in hospital, with eight years as an inpatient at PCH, and that the other risk factors are as set out in the Hospital Report.
(b) Mr. O’Donnell has had a difficult time since his return to the hospital. His seclusions are always due to very significant circumstances. He is threatening and often becomes physically aggressive. When secluded at the end of September, he was upset, wanted to go back to the group home, stopped taking certain medications, and Dr. Selhi believes he barricaded his room with his bed, began to threaten staff, and attempted to choke one of the staff members. He was then put into four-point restraints and transferred to a different unit where a seclusion room was available. On the AIS ('Aggressive Incident Scale') he was given a score of eight. He had a GRIT-RED on the unit, indicating a high risk of violence. He settled several days later and returned to his regular room on Pod C. He has remained settled and not engaged in that kind of violence or behaviour, since then.
(c) The seclusion and return to Pod C were in general very helpful for him. Pod A was over-stimulating for him. In Pod C he had been maintained for many years. He is now more at baseline, over the past few months.
(d) Dr. Selhi is not sure that his transition back to the DD-TRHP home is the best placement for him, given the problems that came to light. He also does not want to go back now. This has not been discussed yet by the team, as it is a relatively new plan at this time.
(e) Dr. Selhi has had thoughts that over the next year he could be transferred out of the forensic unit and into another psychiatric unit in the hospital, which might be possible.
(f) The team would like to continue to have the community living privilege in his Disposition, to be available as an option.
(g) Respecting Mr. O’Donnell's diagnosis now with Parkinson's disease, medications are available for that illness, but there were reservations as to whether to start them. The medical doctor put them on hold, and is continuing to follow Mr. O’Donnell.
(h) With respect to his privileges, he has hospital grounds and community privileges accompanied by staff. To progress to indirect passes, they will want to see him use those accompanied passes a little bit more. He recently asked for indirect passes in the hospital, but he tends to have falls. They are worried about other factors such as this, in addition to his psychiatric state, if he were to be out in the hospital alone.
- There were no questions from counsel for the Attorney-General. In answer to questions from Mr. Casey, counsel for Mr. O’Donnell, Dr. Selhi testified in summary:
(a) As to the medical doctor's reservations about starting Mr. O’Connell on medications, Dr. Selhi could not recall what the reason was, but thought it was possibly because he was going into seclusion at the time, the end of September, and that made it not appropriate for him to start on the medication.
(b) Recently a physical therapy referral has been made for Mr. O'Donnell.
- In answer to questions from Board panel members, Dr. Selhi testified:
(a) There was a high staffing level at the DD-TRHP home, either a 4:1 to 2:1 ratio. To the proposition that it is hard to envision the hospital having access to a community placement with any higher supervision level, Dr. Selhi elaborated that Mr. O'Donnell does very well with a highly structured setting, she was not sure the home staff had education and training to the degree they could have had, and there were boundary issues. The home was brand new in everything. As well, the hospital team was not being updated as to exactly what was happening in the home. Dr. Selhi later found out that, when she had been seeing Mr. O'Donnell while he was living there, he had not been doing as well as she had believed he was.
(b) This group home was the best option they had at the time with that degree of support. There are a lot of reservations right now, but that does not mean that there is not something that they could consider.
(c) Regardless of the reason for Mr. O'Donnell's behaviour, and whether it stems from professional attention-seeking or dramatization or other reasons, when his aggression occurs he uses quite a bit of force and becomes quite violent, and the outcome is significant. Dr. Selhi stressed that in the September incident he had tried to grab a staff member’s throat, barricaded the room with his bed, and it required a lot of staff to place him in the four-point restraints to take him to the seclusion room.
(d) It is very rare to get another placement in a DD-TRHP home. Mr. O'Donnell does require a 24-hour supervised placement, and does need a high degree of structure. He is used to the hospital setting and is comfortable in it. For a long time, he wanted to back to the group home; very recently, he has decided not to go back there. Dr. Selhi believed there are only two beds there, and it would be impossible to get a similar home in the Kingston area. At this time, he does not want to go back there. The treatment team does not feel it is a good idea for him to go back, and this is the bigger issue.
(e) When asked if Mr. O'Donnell's symptoms, which were apparent at the hearing in his facial movements, could be secondary to his antipsychotic medication which it seems had been quite low, Dr. Selhi noted that in the past he was on antipsychotic medication, and she believed he had had a neurological consultation. He has not been started on medications for Parkinson's disease, and his symptoms might be revisited when he starts on medications. He is able to move around and to toilet himself.
(f) When he was readmitted to the hospital, he had increasing anxiety, and to the group home staff he had appeared to have delusional or psychotic symptoms. However, when Dr. Selhi saw him, he did not appear to be psychotic.
(g) However, he really decompensated in the hospital. He was aggressive and threatening. He was in seclusion and in quite a bad state at the time of the Board's ROL review in June 2024, and in seclusion five times since June. Dr. Selhi had not known what had been going on at the group home, and there were very much some concerns about management problems involved.
(h) Mr. O'Donnell has been doing quite a bit better over the past few months and he seems to have returned to his baseline.
(i) Mr. O'Donnell has had quite a few different psychiatrists attending him during his time at PCH, and that had probably been a problem for him. With respect to his potential placement elsewhere in the hospital, for people in the hospital a long time, whether to move them to another unit in the hospital is always something considered. The forensic unit has a high degree of structure.
Closing Submissions
On behalf of the hospital, Ms. Tom reiterated the evidence supporting a significant threat finding, including Mr. O'Donnell's very risky behaviour not that long ago. Ms. Tom noted that the group home staff had not been consistently managing him, and that Mr. O'Donnell benefits greatly from a highly structured environment, with consistency among the staff. Ms. Tom submitted that, if there is significant structure, living in the community is not foreclosed for him, but at this time there are valid concerns that his risk would escalate. The treatment team is just beginning to explore some of the conversations around this, and around his Parkinson’s diagnosis.
Mr. Scott supported the hospital's position. Mr. Casey also supported that position, and highlighted that it was heartening that Mr. O'Donnell has stabilized since September, and that he wants to stay in the hospital for now, feeling more stable in hospital than he did in the community and wanting to be stabilized. Mr. Casey also noted that Mr. O’Donnell has expressed genuine remorse and empathy for what led him to the Ontario Review Board Order. As for his wish to exercise indirectly supervised privileges, for the moment he would like to go to Tim Horton’s, subject to his condition at the time.
Findings and Conclusions of the Board
On the first issue, we have no hesitation in finding that at this time, Mr. O'Donnell represents a significant threat to the safety of the public. This was uncontested at the hearing, and the finding is amply supported by the evidence.
The term “significant threat” is defined in s. 672.5401 of the Criminal Code as “a risk of serious physical or psychological harm to a member of the public … resulting from conduct that is criminal in nature but not necessarily violent.” A significant threat finding must be guided by the principles of law established in the Winko decision, 2 S.C.R. 625, as applied and elaborated in numerous judicial decisions since then. To state this jurisprudence in only a nutshell: A finding of significant threat cannot be speculative; it must be based on evidence. It requires positive findings, supported by the evidence, that the threat that a person would engage in criminal conduct is a “real” threat , and that the harm this conduct would cause would be “serious”. Both findings are required: Neither a miniscule risk of grave harm, nor a high risk of trivial harm, is sufficient to find a real threat of serious harm.
The evidence at this hearing includes the results of two actuarial-type measurement tools used for structuring clinical risk assessment, scored for Mr. O'Donnell as summarized in a Psychological Risk Assessment Report of October 2021 (Hospital Report, pgs. 133-35), and remaining relevant today.
On the Static-99R, the results for him indicate that he is at "Well-Above Average Risk' for sexual and violent reoffending, described as "about three to four times the average rate" of such reoffending for those convicted of sexually-motivated offences.
On the HCR-20-v.3 guide for violent reoffence risk assessment, the results for him indicate a "high level of long-term risk" (based on historical factors), a "low-moderate shorter-term risk" (based on current dynamic factors), and a "low anticipated risk management risk". These are summarized as a "moderate overall risk" of violent reoffence, which is noted to be "due in large part to his hospitalization and the high degree of supervision and structure [the hospital] has been able to provide", with the caveat that it was "difficult to know to what extent Mr. O'Donnell would be able to maintain this status should he be released" from hospital.
The current reoffence risk factors for Mr. O'Donnell include his multiple prior diagnoses, most notably Intellectual Developmental Disorder and Paraphilia(s), his mental and behavioural instability, his limited insight, his stress and difficulty coping with it, and his past and recent history of relapsing into serious aggressive conduct. His risk management needs include ongoing expert forensic mental health care treatment, oversight, and support, and a highly-supervised, structured setting with appropriately-skilled staff members.
The Summary of Risk provided by Dr. Selhi in the Hospital Report (pg. 135), for the time following Mr. O'Donnell's return to hospital in June 2024 from the DD-TRHP community home, "due to increasing behavioural problems, poor ADL's, and difficulty with redirection", concludes:
"While Mr. O’Donnell had several weeks of relative stability from August into September 2024, he had multiple admissions to seclusion for threatening, inappropriate, and/or aggressive behavior, including a seclusion one day prior to the submission of this report [dated September 27, 2024]. Mr. O’Donnell clearly requires a longer period of stability prior to his reconsideration for community placement, though staff at DDTRHP may not be in a position to resume care of an individual with such high needs. As a result, Mr. O’Donnell’s length of stay on the forensic unit is undetermined.
Given the above, no changes to Mr. O’Donnell’s disposition are recommended. At this
time, he requires a highly structured setting to manage his significant risk to the public.
In her viva voce evidence. Dr. Selhi gave an update respecting Mr. O'Donnell's condition and circumstances from September 2024 to date, and reiterated her opinion on significant threat and her disposition recommendation. The significant threat posed at this time by Mr. O'Donnell is well established, and supported by all the factual and opinion evidence.
On the second issue, of the new disposition, the same evidence makes it clear that the continuation of Mr. O'Donnell's detention order remains the necessary and appropriate disposition for him for the coming year. It will properly protect the safety of the public, which is the paramount factor for the Boad to consider. It will also serve other important and related factors respecting Mr. O'Donnell's best interests, including for ongoing treatment and stabilization in the structured and well-supervised hospital setting with its well-trained mental health care experts and supportive staff members.
Some important issues will be addressed in the year ahead. Mr. O'Donnell has a number of health concerns, which include his recent reconfirmed diagnosis of Parkinson's disease, an earlier diagnosis of Illness Anxiety Disorder, "a very real change" in his physical and cognitive functioning (Hospital Report pgs. 126-27), and symptoms such as involuntary facial movements observed at the hearing. He is being actively followed with respect to ongoing psychotherapy and counselling, and to planning for potential physiotherapy and medication or other treatments respecting these health concerns.
Mr. O'Donnell's future transition to community living is not foreclosed at this time. However, time and work will be required to ensure he can be accommodated in an appropriate highly-structured and supported 24-hour-supervised residence, with staff who are skilled in caring for and effectively managing dual diagnosis residents such as Mr. O'Donnell. While the staff at the DD-TRHP home had been assisted by the hospital's inpatient and outpatient team members during Mr. O'Donnell's transition there starting in March 2024, the home was newly-established. It does appear that further specialized training for the staff, including in working with the outpatient team, would be in order. This is for Mr. O'Donnell's treatment team and the hospital to determine.
There are a number of strengths Mr. O'Donnell has shown in the past year. He has now settled, more stable, and doing well back on Pod C, in the unit he is quite familiar with. He has continued to abstain from illicit substance use, which is a very positive factor. He remains capable of managing his finances, being income from the Ontario Disability Support Program and some additional funding from the DSO Passport Program, with active support from his treatment team. Mr. Casey noted in his closing submissions that he sees Mr. O'Donnell is "on the right track", and we agree it is heartening that wants to stay in the hospital and that he looks forward, when he is ready and his stability allows, to exercising further privileges.
We wish Mr. O'Donnell all the best in the year ahead, in his work with his treatment team members and in his therapy with other health care experts.
DATED this 21st day of March 2025, at the City of Toronto, in the Toronto Region.
Ms. K.A. Connidis
Alternate Chairperson
Office of the Registrar
Ontario Review Board