Ontario Review Board
Re: K. (G.)
ORB File No: 7486
Hearing held on: Friday, January 17, 2025
Place of hearing: North Bay Regional Health Centre – North Bay Site
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. L. Banks (via video conference)
Members: Dr. J. Watts Dr. P.N. Wright Mr. P. Capelle Mr. J. Cyr
Parties Appearing:
Accused: K. (G.) Counsel: Ms. M. Munsterman (via video conference)
The Person in charge of Hospital: Representative: Ms. J. Doyon Counsel Mr. P. Trenker
Attorney General of Ontario: Counsel: Ms. M. Mazurski
AMENDED REASONS FOR DISPOSITION
(Dated March 20, 2025)
Please see underlined change to original reasons made November 13, 2025 at the first paragraph.
Introduction
On December 8, 2017, the accused, K. (G.), was found not criminally responsible on account of mental disorder on three charges of sexual assault contrary to the Criminal Code of Canada (the "Criminal Code").
On Friday, January 17, 2025, a panel of the Ontario Review Board ("the ORB" or "the Board") convened a hearing at the North Bay Regional Health Centre ("NBRHC") pursuant to s. 672.81(1) of the Criminal Code of Canada. The annual review for K. (G.) was held in person. Mr. K. (G.) was in attendance and was represented by his counsel, Ms. Marni Munsterman.
Preliminary Matters
The day prior to this hearing, this panel of the Board received and ultimately granted a Virtual Participation Request from patient's counsel who identified the following exceptional circumstances:
The trip to North Bay for me is 7 hours round trip (approximately 3.5 hrs each way). I fully intended to attend in person tomorrow, which is why we had it scheduled for the afternoon. However, I started experiencing mechanical issues with my car last evening and I cannot get it into the shop for repair today to be able to make the trip tomorrow. I am not comfortable making the 7 hour trip with the car as it is and am worried I will end up stranded on the highway. We have already adjourned the hearing once and I do not wish to delay Mr. K. (G.)'s hearing for this reason. As such I am requesting to be able to attend and conduct the hearing virtually tomorrow.
Without Prejudice Position of the Parties
Mr. Trenker, on behalf of the Hospital, indicated that no changes to the existing Detention Disposition were sought, but for the addition of:
- a residential treatment provision,
- the discretionary privilege to live in the community within the city of North Bay in accommodation approved by the person in charge, and
- while residing in the community, reporting not less than every two weeks.
Ms. Mazurski, on behalf of the Crown, indicated that she was largely supportive of the Hospital recommendation but would have questions about the propriety of a community living provision. Ms. Munsterman, on behalf of Mr. K. (G.), advised that a transfer to Ottawa was no longer being sought and that the ongoing presence of significant risk was not at issue. Ms. Munsterman supported the additional terms and conditions recommended by the Hospital.
Index Offences
The nature of the allegations giving rise to the charges on the index offences is described in the hospital report and can be summarized as follows.
"On September 24, 2018, at approximately 18:00, the accused was walking on the Mackenzie King Bridge when he pushed into a woman, placed his hand under her dress and digitally penetrated her vagina. The victim and the accused both fell down to the ground, and then the accused walked away. Around the same time, a second female victim was also walking on the Mackenzie King Bridge when the accused walked in front of her and placed his hand on her vagina over her jeans. She began to follow him and phoned police and he ran towards Ottawa.
The accused ran toward Dalhousie and Rideau streets where he slapped the buttocks of a third woman. Another call to police was made and a security officer chased him down and placed him under an arrest The Ottawa Police arrived on the scene and took over custody. He was charged with three counts of sexual assault."
Current Diagnoses
Mr. K. (G.)'s current diagnoses are:
- Schizophrenia, multiple episodes, currently in partial vs full remission.
- Borderline Personality Disorder, other Specified Personality Disorder.
- Methamphetamine Use Disorder.
- Cannabis Use Disorder, severe, in a controlled environment.
- Opioid Use Disorder.
- Alcohol Use Disorder.
Evidence at Hearing
Mr. Trenker called Dr. Le to give evidence on behalf of the Hospital. On the date of this hearing, Dr. Le had only been Mr. K. (G.)'s treating psychiatrist for 11 days. Referencing the Hospital Report, Dr. Le agreed that a few months prior to this hearing, there were ongoing disputes between Mr. K. (G.) and the treatment team regarding the speed of his treatment progression. However, in the past few months, Mr. K. (G.) is noted to have been less argumentative with staff and with his peers. As a result, the exercise of his privileges has been increased. Mr. K. (G.) has also independently sought out and engaged in online self-improvement programming.
Achieving community living will necessitate ongoing medication compliance, monitoring of hyper-religiosity, as well as active engagement in substance abuse programming. These objectives have already been identified to Mr. K. (G.). Additionally, Dr. Le wants to see that Mr. K. (G.) can enter the community absent drug-seeking or behavioural incidents.
The inclusion of a community living provision represents an incentive for him to pursue the necessary steps to move forward with his treatment and rehabilitation. The first likely placement would be Maplewood Lodge. This was described as a transitional residence, heavily supported by the hospital, located within a semi-detached house, with staff on site for the majority of the day, but for Sundays, where there is a remote check-in protocol. There is no time limitation for how long patients can live there. It is staffed by individuals of the same experience profile that work at the NBRHC. Questioned by Ms. Mazurski, Dr. Le advised that she genuinely believes her patient will be able to achieve community living within the next 12 months and this is not simply proposed as an incentive for him.
Dr. Le added that she has always been clear with her patients that if they meet expectations, they will move forward and if not, they will not. She added that the rudeness and threats to staff documented in the Hospital Report have been a problem that won't be tolerated going forward and if they resurface, will certainly impede Mr. K. (G.)'s progress.
Mr. K. (G.) now admits to having cravings and to events that are triggering for him. For example, seeing the use of methamphetamines during a television show. Dr. Le remains amendable to Mr. K. (G.) attending at a residential treatment facility. She added that this would represent a good stepping stone for him to live in the community within the next 12 months.
Responding to questions from Ms. Munsterman, Dr. Le confirmed that Mr. K. (G.) has shown good progress. There has only been one documented episode of substance use in the past calendar year which occurred in January of 2024. This was prior to Mr. K. (G.)'s March 2024 arrival at the NBRHC. Following the recent transfer of care to Dr. Le, Mr. K. (G.) advised that he was now amenable to remain in North Bay and work with his new treating psychiatrist. This is why the transfer request to Ottawa was withdrawn.
Dr. Le was asked if medication optimization had been considered in light of Mr. K. (G.)'s ongoing religiosity which could be a marker of a worsening mental state. Dr. Le responded that she is open to that suggestion. Further, she may consider CBT for psychosis if she perceives it may improve her patient's symptoms and functionality. Dr. Le was also questioned about the reports of increased fentanyl use in 2023 which resulted in overdoses and the necessity of Naloxone treatment. She responded that there have not yet been discussions regarding these events. She envisions this will occur as she continues to build rapport with Mr. K. (G.) who seems eager to engage and start making changes.
It was noted that Mr. K. (G.) was charged criminally following a knife incident that occurred at the Royal Ottawa Hospital and that he has a previous history with weapons. Given the foregoing, the doctor was questioned as to why a weapon's prohibition was not recommended for the coming year. At this juncture, Mr. Trenker interjected and advised that the Hospital would support the inclusion of a weapon's prohibition in Mr. K. (G.)'s Disposition.
Ms. Munsterman advised the panel and remaining parties that the underlying rationale why no weapon's prohibition was contained within the Hospital's recommendations is that Mr. K. (G.) was given a suspended sentence non-reporting with probation for 12 months and a Section 109 Criminal Code weapons prohibition for ten years relating to the stabbing incident reference in the preceding paragraph.
Closing Observations
Mr. Trenker submitted, on behalf of the Hospital, that community living is a realistic possibility that will be left to the discretion of Dr. Le and her treatment team to implement if appropriate. Currently, Mr. K. (G.)'s Disposition contains indirectly supervised access to the community as well as passes for up to 14 days. As a result, community living is not a huge extension. Further, Dr. Le opined that her patient can cope with the unfilled expectation if that occurs.
Ms. Mazurski indicated that her submissions would be limited to the issue of community living. She submitted that in the circumstances, there is only a remote possibility that community living will be achieved in the coming year. Therefore, its inclusion would only serve to incentivise Mr. K. (G.). She noted that within the last reporting year, there have been more months that Mr. K. (G.) demonstrated an unwillingness to engage as opposed to a willingness to engage.
Ms. Munsterman submitted that a key element in Dr. Le's evidence was that Mr. K. (G.) has independently initiated programming to enable self-improvement which has not been seen before. Dr. Le believes that community living is achievable at the back end of 12 months based on reported changes conveyed by the treatment team over the last several months as well as her meeting with him. She noted that Mr. K. (G.) is also willing to attend a residential treatment program if this is deemed appropriate.
Analysis and Decision
(a) Significant Threat
Ongoing significant threat to the safety of the public cannot be speculative. It must entail a real risk of serious physical or psychological harm arising from conduct that is both serious and criminal in nature.
In determining whether Mr. K. (G.) continues to represent a significant threat to the safety of the public, the Board has carefully analyzed the evidence as it relates to the Supreme Court of Canada decision in Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
The Board unanimously finds that Mr. K. (G.) continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the joint position of the parties and accepted the uncontroverted evidence of Dr. Le that Mr. K. (G.) continues to pose a significant threat. The Board also relies on the Hospital Report and the Risk Summary contained therein in determining that Mr. K. (G.) suffers from Schizophrenia; a major mental illness, complicated by Borderline Personality, Methamphetamine, Opioid Alcohol and Cannabis Use Disorders. The following paragraph, extracted from page 58 of the Hospital Report, is reproduced below for ease of reference as it describes the risk posed by this patient, absent necessary oversight by his treatment team and this Tribunal:
The treatment team unanimously opined that the risk of violence would increase significantly without the support and supervision he currently receives at NBRHC and further opined it was imperative to ensure a slow progression of granting Mr. K. (G.)'s privileges to mitigate the risk to the public's safety. If left to his own devices, the treatment team opines that Mr. K. (G.) would return to substance use, cease taking his treatment as prescribed and disengage from his mental health supports. Consequently, the treatment team strongly opines that Mr. K. (G.) would re-engage in violent behaviour. Mr. K. (G.) lacks insight and judgement into the risk he poses to the public's safety and into his mental illness and need for treatment and supervision.
Given the foregoing, this panel of the Board accepts that absent an ORB Disposition, Mr. K. (G.) would likely become non-compliant with prescribed medications which would lead to decompensation, use of substances and the re-emergence of behaviours similar to those seen at the time of the index offences. We are satisfied that absent an ORB Disposition, it is likely that Mr. K. (G.) will cause serious physical or psychological harm to members of the public and such conduct will likely be criminal in nature.
(b) Disposition
Flowing from the Board's finding that Mr. K. (G.) continues to pose a significant threat to the safety of the public, it must shape a Disposition for the year ahead. Its paramount consideration in doing so must be the safety of the public while also considering Mr. K. (G.)'s needs pursuant to s. 672.54 of the Criminal Code.
The necessary and appropriate Disposition for Mr. K. (G.) provides him as much freedom as possible without subjecting the community to a real risk of dangerous behaviour.
In considering Mr. K. (G.)'s needs, the Board was attentive to the Hospital's recommended inclusion of a community living provision, supported by patient's Counsel.
The panel is prepared to accept this recommendation regardless of whether or not a community living placement is realistic for Mr. K. (G.) in the year ahead. This panel is well aware of the direction provided by Ontario's Court of Appeal in Sookram (Re), 2024 ONCA 823. Therefore, this panel cannot accept Ms. Mazurski's assertion that a community living provision should be omitted as it would only serve to incentivize Mr. K. (G.) following a reporting year wherein his willingness to engage with treatment has been inconsistent and, therefore, insufficient to justify the inclusion and possible exercise of a community living provision.
Whether or not it is likely that Mr. K. (G.) will be accorded the privilege to reside in the community, this panel finds no downside to including that provision in his next Disposition. Dr. Le testified that her patient may progress to the point of being able to transition to the achieve community living within the next 12 months and added that the inclusion of this provision is not simply proposed to incentivise him. Given the foregoing, this panel of the Board is satisfied that there is little likelihood that Mr. K. (G.) may be discharged prematurely. This determination is further supported by Dr. Le's uncontroverted testimony that she has been clear with Mr. K. (G.), as with her other patients, that if he meets expectations, he will achieve greater privileges. However, he won't be accorded community living simply because that privilege is contained within his next Disposition.
This panel of the Board finds that the inclusion is necessary and appropriate to signal to current and future forensic treatment providers that Mr. K. (G.) was given a suspended sentence, non-reporting with probation for 12 months and a Section 109 Criminal Code weapons prohibition for ten years relating to a stabbing incident. This is important information required to safeguard staff and co-patients who come in contact with Mr. K. (G.). Whether or not this is a duplicitous entry, inclusion of a weapons prohibition in Mr. K. (G.)'s Disposition is necessary and appropriate as regards to protection of the public.
Conclusion
The Board unanimously determines that the necessary and appropriate Disposition required to manage the threat Mr. K. (G.) poses to the safety of the public while still meeting his needs, is a Detention Disposition with the terms and conditions as referenced within the Without Prejudice Position of the Parties heading of these Reasons for Disposition with the addition of a weapons prohibition.
In making this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Le and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, Mr. K. (G.)'s mental condition, his reintegration into society and other needs.
DATED this 20th day of March 2025, at the City of Toronto, in the Toronto Region.
Mr. P. Capelle Legal Member
Office of the Registrar Ontario Review Board