Re Karim Khanu, 2025 CanLII 23536

Ontario Review Board

Re: Karim Khanu

ORB File No: 8024

Hearing held on: Tuesday, January 21, 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: Karim Khanu Counsel: Ms. F. Glaizghi

The person in charge of hospital: Representative: Dr. R. McMaster

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

REASONS FOR DISPOSITION

(Dated March 18, 2025)

Introduction

1. On February 7, 2022, Karim Khanu was found unfit to stand trial on account of mental disorder in respect of one count of assault causing bodily harm, contrary to the Criminal Code of Canada.

2. Mr. Khanu is currently subject to a Disposition of the Ontario Review Board dated August 21, 2023, which discharges him on conditions including the condition to reside at 1145 Albion Road in Etobicoke, Ontario, which is the address of his current long-term care residence.

3. On January 21, 2025, the Ontario Review Board convened a hearing at the Centre for Addiction and Mental Health (“CAMH”) to review Mr. Khanu’s Disposition pursuant to ss. 672.48(1) and 672.81(1) of the Criminal Code.

4. Mr. Khanu was not present at the hearing. His counsel, Ms. Glaizghi, confirmed that she had met with him the previous day and that he advised her that he did not wish to attend the hearing. This request was supported by his two children. Ms. Glaizghi indicated that she was prepared to proceed in the absence of her client to which both Dr. McMaster and counsel for the Attorney General, Mr. Ponesse, indicated having no issues. Accordingly, the Board ordered that Mr. Khanu be permitted to be absent from his hearing, pursuant to s. 672.5(10)(a) of the Criminal Code.

5. The issues for the hearing are to determine whether Mr. Khanu continues to be unfit to stand trial and, if so, whether he continues to represent a significant threat to the safety of the public, in which case the Board will determine the necessary and appropriate Disposition.

6. For the reasons set out below the Board found that Mr. Khanu is permanently unfit to stand trial and that he no longer represents a significant threat to the safety of the public. Pursuant to s. 672.851(1), we recommend to the court that an inquiry be held to determine if a stay of proceedings should be ordered.

Outstanding Charge

7. The circumstances giving rise to the outstanding charge are set out in last year's Reasons for Disposition and the Hospital Report, as follows:

“On Wednesday August 12, 2020 at approximately 10:00 AM the victim was on the third floor of her residence located at 1145 Albion Road, Etobicoke, Ontario. The victim was standing near the nurse’s station. Several staff were on scene attending to residents. The accused exited his room and walked out to the nurse’s station.

The accused leaned up against the counter. The victim proceeded to walk by the accused.

The accused for unknown reasons struck the victim one time with a closed fist in the face. The victim fell to the ground. Staff on scene were unaware what had happened and rushed over to assist the victim. The accused leaned up against the counter and watched the staff attend to the victim.

The victim was brought to her room. Later in the day staff observed the victim to be in a great deal of pain. The victim was taken to hospital for treatment. Staff of the residence were updated the victim possibly had a fracture[d] wrist. The director of care reviewed video at the nurse’s station, and it came to light that the accused had struck the victim in her face with his fist causing her to fall to the floor.

As of August 26, 2020, the victim was still in hospital and was furthered diagnosed with an upper arm (humerus) fracture. The accused was arrested on September 4, 2020, and arrangements were made for the accused to have 24-hour care with a staff member until the case is concluded.

It was noted that the victim passed away after being hospitalized following this assault.”

Background History

8. Mr. Khanu’s personal, legal and psychiatric history are set out in detail in the Hospital Report dated August 8, 2024 as well as the Addendum to the Hospital Report dated January 5, 2025, which were entered as Exhibits 1 and 2 for the hearing.

9. Briefly summarized, and as summarized in last year’s Reasons for Disposition, Mr. Khanu is 72 years of age and was born in Iraq. He was one of six siblings. Little else is known of his childhood. He has a wife, from whom he is separated, and two children. According to CAMH records, he suffered a traumatic brain injury in the Iraq war in 1982, when he was hit by a piece of shrapnel due to a bomb blast. He suffered a left side skull fracture and required a left frontal craniotomy. He went missing for several months and had no recollection of what had happened. According to hospital records, he was left with many deficits following this first head injury, including poor memory, and poor organization skills.

10. Mr. Khanu and his family left Iraq as refugees in 1992. They travelled from Turkey to Greece, where they stayed for one year. During that year he worked as an Arabic to English translator. Mr. Khanu’s brother sponsored him to come to Canada in 1993. After his immigration to Canada, Mr. Khanu held various jobs, such as in a bakery, and in construction for a tile company.

11. According to St. Michael’s Hospital records, Mr. Khanu was admitted from February 18 to March 7, 2013, for a second traumatic brain injury. He was urinating onto subway tracks while intoxicated with alcohol, when his head was struck by the subway train, travelling at approximately 20 to 30 km/h. He fell back on the subway platform and hit the back of his head. He was admitted to the neurosurgery service with a brain contusion (right frontal lobe), a fracture of the right frontal bone, and an acute subdural hematoma, all of which resolved without surgery.

12. According to records from Bridgepoint Hospital, Mr. Khanu was admitted for rehabilitation on March 7, 2013, following his second traumatic brain injury. It was noted that he presented with “paranoid ideation” and was often suspicious of the questions asked by staff. A legal capacity assessment was completed on July 19, 2013; Mr. Khanu was found incapable for the purpose of decisions related to admission to a long-term care facility, and his two children were appointed as his substitute decision makers (SDMs) for placement decisions.

13. According to CAMH records, Mr. Khanu had a history of regular alcohol use in the years leading up to his accident in 2013. He was frequently intoxicated, sometimes swearing at, or talking aggressively to strangers. He was arrested once for touching a female inappropriately while intoxicated in Toronto. He was intoxicated with alcohol when he suffered a brain injury in 2013 and was diagnosed with alcohol withdrawal at the hospital.

14. Mr. Khanu has the following criminal record:

1993-12-17: Assault - suspended sentence and 18 months’ probation

1998-04-02: Invitation to sexual touching - suspended sentence (2 months of pre-sentence detention) and 2 years’ probation

1999-01-21: Fail to comply with probation order - 30 days intermittent and probation

2001--08-23: Sexual assault - suspended sentence (2 months and 2 weeks of presentence custody) and 2 years’ probation

15. Reportedly, the 1993 assault conviction related to an incident when he struck his wife during an argument.

16. Following the index offence, Mr. Khanu was followed by the CAMH Geriatric Mental Health Outreach Clinic where he was diagnosed with a major neurocognitive disorder due to traumatic brain injury, alcohol use disorder and rule out post traumatic stress disorder. It is reported that Mr. Khanu presented with physical aggression, unpredictable behaviour, an impaired memory. He started receiving treatment in March 2021 with some noted improvements. Over the course of the next few months his behaviour was noted to be improving but he was deteriorating physically.

17. Mr. Khanu has continued to live at the Westside Long Term Care Home where he was receiving 24/7 clinical care and support of nursing staff.

18. Mr. Khanu’s current diagnoses are:

i) Major neurocognitive disorder due to traumatic brain injury;

ii) Alcohol use disorder; and

iii) Rule out posttraumatic stress disorder.

Evidence at the Hearing

19. The hospital's evidence was presented through its reports and through the oral testimony of Dr. R. McMaster, Mr. Khanu’s attending psychiatrist since September 2024. This evidence is summarized below.

20. Dr. McMaster adopted the contents of the Hospital Reports and confirmed that he had recently met with Mr. Khanu at his-long term residence, as well as virtually with the benefit of a Chaldean interpreter.

21. According to Dr. McMaster's assessment, Mr. Khanu’s cognition is quite impaired and he is currently not oriented as to time and place. Mr. Khanu is also physically impaired. Though he is capable of standing up in his room he is most often in a wheelchair when he is outside his room in communal areas. Mr. Khanu has been residing at the Westside Long Term Care Residence in Rexdale since 2013. The index offence occurred in that same long-term care residence.

22. Though Mr. Khanu has reported periods of irritability, there have been no incidents of note that have taken place over the course of the past year. Mr. Khanu has 1:1 supervision. He receives excellent care from the facility where he resides, and his family is very involved.

23. Mr. Khanu’s major neurocognitive disorder resulted from two serious brain injuries. Dr. McMaster does not believe that Mr. Khanu's situation will improve and that it is likely to decline.

24. In the opinion of Dr. McMaster, Mr. Khanu no longer poses a significant threat given how he is managed in his long-term care residence and that there is no expectation that he will leave that residence. In addition, Mr. Khanu’s physical health has deteriorated to a point where he is unlikely to pose a physical threat to anyone.

25. In response to questions posed to him by counsel for the Attorney General, Mr. Ponesse, Dr. McMaster responded as follows:

a. He meets with Mr. Khanu monthly and speaks regularly to his caseworker who meets with him twice per month at the residence.

b. Dr. McMaster confirmed that Mr. Khanu’s children are supportive of maintaining him in the long-term care facility where he has resided for the past 11 years and Mr. Khanu appears to be content there as well. He sometimes says that he wants to leave but he has no capacity to do so. He cannot ambulate out of there and would not survive out of that facility. There is no way that Mr. Khanu could abscond from that facility.

c. With respect to the 1:1 supervision that Mr. Khanu receives at the long-term care facility, he is not the only resident there who has this type of supervision. Both the family and the long-term care residence have confirmed that the 1:1 supervision will continue independently of an ORB Disposition. The fact that this will continue and the fact that Mr. Khanu’s behaviour has improved are the basis for the recommendation that Mr. Khanu no longer meets the threshold of significant threat to the safety of the public and that the Board is being encouraged to recommend a stay of proceedings.

26. In response to questions posed to him by counsel for Mr. Khanu, Ms. Glaizghi, Dr. McMaster confirmed that the 1:1 supervision consists of a person who is supervising Mr. Khanu and sits outside his room with a little desk and chair immediately outside the doorway to his room.

27. In response to questions posed to him by members of the panel, Dr. McMaster stated that he could not confirm whether the 1:1 supervision is a product of the LTC residence seeking to protect itself, given that the index offence took place in that facility. Other residents in the facility also have this level of supervision in the residence. The family does not pay for this supervision but they are supportive of it.

28. No other evidence was presented but counsel for Mr. Khanu, Ms. Glaizghi, asked to read a statement from Mr. Khanu's children. They stated that they do not have the ability to care for their father and that they believe that it is best for him to remain in the current residence. They have ongoing communication with staff and are informed of any changes in their father's health and behaviour. Mr. Khanu has access to an on-site doctor and they plan to continue being involved and meeting with the residence staff, including having an annual conference to review their father's health, medication and plan of care. The children confirmed that it is their belief that Mr. Khanu is doing very well in his current arrangements.

29. Dr. McMaster was asked about Mr. Khanu’s current list of medications and confirmed that all of those medications are being prescribed to him by the medical staff at the long-term care facility.

30. No other evidence was presented.

Submission of the Parties

31. The hospital submits that Mr. Khanu is permanently unfit to stand trial and no longer poses a significant threat to the safety of the public. Accordingly, the Board is encouraged to make a recommendation for a stay of proceedings that would have Mr. Khanu returned to court for that to be determined as set out in s. 672.8501 of the Criminal Code. Counsel for the Attorney General, Mr. Ponesse, agree that Mr. Khanu is unfit but was not recommending a stay of proceedings at this time. Counsel for Mr. Khanu, Ms. Glaizghi, supported the hospital position and recommendation for this hearing.

Analysis and Conclusion

Fitness to Stand Trial

32. 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.”

33. 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.”

34. 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.

35. Having considered the evidence presented at the hearing and the joint submission of the parties, the Board agrees that Mr. Khanu remains unfit to stand trial. Due to his neurocognitive deficits, he is unable to understand the nature or object of the court proceedings, the consequences of the proceedings and would be unable to instruct counsel. The Board accepts the evidence of Dr. McMaster that Mr. Khanu’s condition will not improve, that it will likely further deteriorate, and that he is permanently unfit.

Significant Threat to the Safety of the Public

36. Mr. Khanu was charged with a serious offence of assault causing bodily harm against a resident of the long-term care facility who had a broken arm as a result of the assault but later died in hospital from an unrelated condition. The incident took place in August 2020.

37. Since the alleged offence, Mr. Khanu’s physical health and mobility have significantly declined. He is now confined to a wheelchair when out in common areas of his residence. He is no longer demonstrating any aggressive or violent behaviour and despite this, has 1:1 supervision provided by the long-term care residence which provides important risk mitigation which will continue for the foreseeable future. Accordingly, we find that Mr. Khanu no longer represents a significant threat to the safety of the public.

38. In view of our conclusions, that Mr. Khanu is permanently unfit and no longer represents a significant threat to the safety of the public, we recommend to the court, pursuant to s. 672.851(1), that an inquiry be held to determine if a stay of proceedings should be ordered.

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

Ms. M. Labrosse Alternate Chairperson

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Office of the Registrar Ontario Review Board