Re: O. (K. E.), 2025 CanLII 23557

Ontario Review Board

Re: O. (K. E.)

ORB File No: 8533

Hearing held on: Thursday, March 6, 2025

Place of hearing: Ontario Shores Centre for Mental Health Sciences 700 Gordon Street, Whitby

Pursuant to: Section 672.81(2) of the Criminal Code

Before: Alternate Chairperson: Mr. J. Goldenberg Members: Dr. W. Johnston Dr. S. Wiseman Ms. C. Murray Mr. S. Duffy

Parties Appearing:

Accused: O. (K. E.) Counsel: Mr. D. Medd

The person in charge of hospital: Representative: Dr. K. De Freitas

Attorney General of Ontario: Counsel: Ms. N. MacDonald

REASONS FOR DISPOSITION

(Dated March 19, 2025)

1On April 5, 2024, Kevin O. (K. E.) was found not criminally responsible by reason of mental disorder, on charges of sexual assault and failure to comply with probation.

2Mr. O. (K. E.) is currently subject to a Disposition of the Ontario Review Board dated May 28, 2024, by which he was ordered to be detained within the Secure Forensic Service of Ontario Shores Centre for Mental Health Sciences ("Ontario Shores").

3By letter dated February 18, 2025, the Clinical Forensic Coordinator of Ontario Shores wrote to the Ontario Review Board and requested an early hearing to review Mr. O. (K. E.)'s Disposition. The Ontario Review Board agreed with that request.

4On Thursday, March 6, 2025, the Ontario Review Board convened a hearing at Ontario Shores and conducted the early review of Mr. O. (K. E.)'s Disposition.

Position of the Parties

5At the outset of the hearing, the parties were canvassed as to their recommendations to the Board.

6Dr. De Freitas appeared as the hospital's representative as well as being Mr. O. (K. E.)'s most responsible physician. She advised of the hospital position that Mr. O. (K. E.) remains a significant threat to public safety but that at the present time his threat to public safety can be managed in the General Forensic Service at Ontario Shores with a number of privileges that would be appropriate to a detainee on a General Forensic Service. Dr. De Freitas is also asking the Board to include a community living clause.

7Ms. MacDonald appeared for the Attorney General. She advised that she was not prepared to take a position at this time.

8Mr. Medd appeared for Mr. O. (K. E.). Mr. Medd concurs with the hospital. He accepts that at the present time his client remains a significant threat to public safety and if the Board so finds he accepts that his client should be detained on a General Forensic Service at Ontario Shores with privileges as requested by Dr. De Freitas and with the privilege of living in the community in approved accommodation.

Index Offence:

9"On October 18, 2023, York Regional Police were dispatched to Vaughan Mills Mall in the City of Vaughan, for report of a sex assault.

Police arrived on scene and spoke with the victim, E.M., and her mother. E.M. advised she was seated near the back of the York Regional Transit bus when an individual approached her. Despite many empty seats, he asked to sit next to her on the bus. E.M. advised the individual looked down her shirt before placing his hand on her thigh. He then moved his hand underneath her buttocks and squeezed. He then rested his head on her shoulder and attempted to touch her again in the same area. E.M. told the individual "no" but he continued to touch her.

Video surveillance of the York Regional Transit bus captures the sexual assault. Police located and arrested Mr. O. (K. E.) on scene. He was identified via court documents in his possession. Mr. O. (K. E.) told police that the sexual touching was consensual."

Evidence at Hearing:

10The Board admitted into evidence the correspondence between Ontario Shores and the ORB, a Hospital Report dated February 24, 2025, and a copy of a Victim Impact Statement. We note for the record that Ms. MacArthur was in attendance at this hearing together with her father. Ms. MacArthur read her Victim Impact Statement to the panel.

11The Hospital Report provides a great deal of information concerning Mr. O. (K. E.), his personal history, his mental health history, details of prior criminal offences and Mr. O. (K. E.)'s course in hospital subsequent to the date of the NCR finding. As the Hospital Report was made an exhibit in this hearing it is not necessary to reproduce the information contained in the Hospital Report in these Reasons.

12We do note, however, the stated diagnoses of:

Schizophrenia Cannabis Use Disorder, severe Cocaine Use Disorder, severe

13In addition to the documentary evidence the Board heard from Dr. De Freitas. Dr. De Freitas started by noting that her patient has enjoyed "a very good year". All of his symptoms are in remission. He is compliant with his medication. He has participated in many groups at the hospital. Dr. De Freitas describes her patient as a "very pleasant man". He is well liked by staff and co-patients. He has not been a management problem.

14In Dr. De Freitas's opinion, he is now ready to be transferred to a General Forensic Service. For a period of time, he was detained in the Assessment Unit at Ontario Shores and then transferred to another Secure Forensic Service unit. In this latter unit Mr. O. (K. E.) has been able to utilize accompanied passes and also indirectly supervised hospital and grounds passes. He is currently using one-hour passes with a check-in at 30 minutes. There have not been any issues arising from Mr. O. (K. E.)'s use of passes.

15The doctor noted that all of Mr. O. (K. E.)'s drug tests have been negative for substances. He has, in the doctor's opinion, improved insight. He is capable of making treatment decisions. Mr. O. (K. E.) states that he needs medication and that he will need medication for the rest of his life. Mr. O. (K. E.) has some insight about the dangers of any further use of substances. He does say that he has no desire to use substances.

16Dr. De Freitas stated that Mr. O. (K. E.) has one weakness; namely, a lack of insight regarding the sexual victims. On the other hand, Mr. O. (K. E.) does say that he will not be touching anyone. Dr. De Freitas put it that on his issue Mr. O. (K. E.)'s insight is "not rock solid".

17Dr. De Freitas noted that there has not been any inappropriate touching since Mr. O. (K. E.) arrived at Ontario Shores.

18In response to questions from Ms. MacDonald, Dr. De Freitas acknowledged that Mr. O. (K. E.) has a considerable history of using substances such as crack cocaine.

19In response to another question from Ms. MacDonald, Dr. De Freitas noted that Mr. O. (K. E.) is using indirectly supervised hospital privileges and that the doctor did not see any reason to have Mr. O. (K. E.) shadowed when he was on such privileges.

20Dr. De Freitas advised Ms. MacDonald that it would be possible for Mr. O. (K. E.) to be moved into the community near the end of the next 12 months. Dr. De Freitas opined the most likely residence would be a supervised one.

21Dr. De Freitas acknowledged that Mr. O. (K. E.) has a long history of medication noncompliance. The doctor also opined that were her patient to go off his medication there would be a rapid decompensation.

22No other evidence was heard at this hearing.

Final Submissions:

23Dr. De Freitas maintained the position she set out at the outset, namely, that her patient should be transferred to a General Forensic Service with privileges up to living in the community in approved accommodation.

24Ms. MacDonald submitted that Mr. O. (K. E.) simply is not ready to be moved to a General Forensic Service at this time. She noted a history of inappropriate touching of young women. Ms. MacDonald submitted that even should the Board transfer Mr. O. (K. E.) to a General Forensic Service, the Disposition should not include a privilege of living in the community.

25Mr. Medd started by suggesting that his client has enjoyed "a phenomenal year". There have not been any problems whatsoever in hospital. He has utilized passes; he has engaged in programming. Mr. Medd suggested that his client is moving "on the trajectory we had hoped for".

Findings of the Board:

26The Board accepts the evidence of Dr. De Freitas and the evidence contained in the Hospital Report. We agree that Mr. O. (K. E.) should be transferred to a General Forensic Service at this time. We note his successes to date and the panel is satisfied that a transfer to a General Forensic Service is both necessary and appropriate. We also believe it is necessary and appropriate to include a provision for community living. Our Disposition shall permit the ability to live in the community in approved accommodation. We will, of course, continue with the prohibitions set out in the May 28 Disposition. We note for the record, the hospital's position that the next annual review should be approximately 12 months from today's date.

27In reaching our Disposition, the Board has taken into consideration public safety, Mr. O. (K. E.)'s mental condition and his other needs, and Mr. O. (K. E.)'s reintegration into society.