Ontario Review Board
Re: Mr. Jason M. Botelho
ORB File No. 7021
Hearing Date: January 28, 2025
Hearing Location: St. Joseph’s Healthcare, Hamilton, West 5th Campus
Pursuant to: ss. 672.81(1) Criminal Code of Canada; ss. 672.48(1) Criminal Code of Canada.
Before:
Alternate Chairperson: Mr. J. Weinstein
Members: Dr. R. Buckingham Dr. L. O. Lightfoot Ms. B. Little Mr. K. McKenna
Parties Appearing:
Accused: Mr. J. Botelho Counsel: Mr. L. Dimitry
The Person in charge of Hospital: Counsel: Mr. S. O’Brien
Attorney General of Ontario: Counsel: Ms. A. Lepchuk
REASONS FOR DISPOSITION
(Dated March 25, 2025)
Introduction
1Mr. Botelho was found unfit to stand trial on September 14, 2016, on charges of assault cause bodily harm and mischief-not exceeding five thousand dollars, contrary to the Criminal Code of Canada.
2He is currently subject to a detention order under a Disposition dated November 30, 2023, with privileges that extend to living in the community of Southern Ontario in supervised accommodation.
3A panel of the Ontario Review Board (the panel) convened this annual hearing on January 28, 2025, at St. Joseph’s Healthcare, West 5th Campus, Hamilton, (St. Joseph’s) to determine if Mr. Botelho is unfit to stand trial at this time, and if so, to make the appropriate Disposition. Mr. Botelho and his mother attended the hearing.
4It was the Hospital’s position at the commencement of the hearing that Mr. Botelho was unfit to stand trial, and that a continuation of the current Disposition was appropriate. Counsel for the Attorney-General supported this recommendation. Counsel for Mr. Botelho indicated that he had no instructions to agree, but he would not be providing evidence to contradict this position.
5After considering the evidence, the panel concluded that Mr. Botelho was unfit to stand trial at the time of the hearing, and that a Disposition with the same terms and conditions as the current Disposition was necessary and appropriate.
Outstanding Charges
6The facts relate to events which occurred on December 23, 2016. Mr. Botelho was an inpatient at St. Joseph’s in the secure forensic psychiatric unit at the time.
Jason BOTELHO is currently in the HN3 Secure Forensic Psychology unit at St. Joseph’s Hospital located at 100 West 5th Street in Hamilton. He was there during the time of this incident. On Wednesday December 23rd 2016 [U.P.] and [S.P.] entered Jason BOTELHO’s room to discuss his release from the forensic unit to the Schizophrenia Unit. BOTELHO became upset and spit on [U.P.]. Both parties quickly left Jason BOTELHO’s room but he followed them. Jason BOTELHO tackled [S.P.] to the ground. He grabbed her hair and slammed her forehead into the concrete floor approximately three to four times. During this attack, her prescription eye glasses were broken. [S.P.] lost consciousness for a few seconds. [S.P.] sustained a concussion. On January 12th 2016 Police attended St. Joseph’s Hospital at 100 West 5th Street and arrested Jason BOTELHO. He was charged with Assault Bodily harm, Mischief Under $5000 (breaking [S.P.]’s glasses), and Assault Level 1 (spitting on [U.P.]). He was released at the Hospital on a PTA and Undertaking.
Hospital Report
7The Hospital Report dated October 29, 2024, (the Report) was prepared for this hearing and contains a detailed review of Mr. Botelho’s personal and mental health history.
8He is diagnosed with schizophrenia and mild intellectual disability.
9Mr. Botelho has a significant criminal record which begins in 1999, and includes numerous convictions for assault related offences.
10Mr. Botelho was diagnosed with Tourette’s Syndrome at the age of 7, and became involved with the Chedoke Child and Family Services. During his childhood, he lived in various foster homes, became a ward of the Children’s Aid Society, and was placed in a private institution. The records from these various residences describe his behaviour as argumentative, verbally abusive, and demanding. The records also stated that he did not engage well with other people.
11He required special assistance throughout school, and achieved a grade 4 education.
12Mr. Botelho has a history of alcohol and substance abuse. He also has a history of noncompliance with medication, and follow-up treatment in the community.
13He has been admitted to St. Joseph’s numerous times over the years prior to the alleged offences. In 2007, he attempted suicide, and advised the medical staff that he was feeling overwhelmed and stressed out. He had experienced auditory hallucinations, and paranoia.
14In 2009, Mr. Botelho was charged with the previous set of index offences, utter threat to cause death and fail to comply with probation. He was admitted to the Mental Health Centre Penetanguishene, and determined to be unfit to stand trial. He remained unfit and was transferred to St. Joseph’s in May 2015. In October 2015, he was assessed as fit to stand trial, and on December 23, 2015, Mr. Botelho committed the current alleged offences. He has been continuously found unfit to stand trial since the commission of the current alleged offences.
15Mr. Botelho is incapable to make treatment decisions. His mother is his substitute decision maker.
16His presentation has not changed to any appreciable degree over the years. He typically appears fully oriented, although there are times when he is disoriented to time and place. He tends to speak in a child-like or high-pitched voice, and has periods of non-sensical speech. He has periods of euphoria and can be loud and disruptive. He is often observed to be responding to internal stimuli, and can be heard clapping, singing, laughing, and talking to himself.
17Mr. Botelho can also be rude and irritable to staff. He often makes threats to staff, such as “I’ll punch you.” His behaviour is often impulsive, such as throwing items at staff and raising his fists at staff in anger. He has also displayed inappropriate sexual behaviours toward staff members, including vulgar comments, making sexual gestures, and exposing his genitals towards staff in the hallways.
18He endorses visual hallucinations, and has been observed to point and shout at the walls and windows in his room as though he were in a conversation with someone else. He also endorses bizarre delusional ideas including that his mom will cook him and make him into soup. He refers to himself as both a little boy and a little girl. Mr. Botelho believes that staff members are his aunts and uncles or his mom.
19This past year the Hospital increased the dosage of his primary antipsychotic medication without any salutary effect on his psychotic symptoms.
20Periodically throughout the year he has had his privileges cancelled following aggressive behaviour.
21He receives support from Bartimaeus staff, who visit with him a few times per week. This group specializes in providing therapy and transitional support to individuals who experience complex and severe behaviours. He also visits with his family regularly.
22The Hospital records incidents of inappropriate behaviour each year in the Hospital Report. The incidents over the years are very similar in nature and for this past year are recorded on page 68. Two incidents that are illustrative of Mr. Botelho’s behavioural difficulties occurred on February 17, 2024, and March 19, 2024. In the February incident he struck a staff member in the head with a stainless-steel food tray. When staff attempted to talk to him about the incident, he responded that “she provoked me with her vagina.” He went on to say, “you’re lucky I didn’t punch all of you in the face.” In the March incident, Mr. Botelho was being offered his medication, and began responding to internal stimuli. He was yelling at the staff, made a racist remark, and threw a cup of water at the nurse. He spat at the nurse and a code white was called. As he was being led out of is room by security, he turned and punched a female security guard in the face.
23The Hospital Report indicates that during conversations he often appears preoccupied and simply does not respond to any questions. Particularly during longer conversations, he can be highly disorganized, non-sensical, and bizarre.
24He typically has little appreciation for staff comments regarding inappropriate sexual comments or aggressive behaviour.
25Mr. Botelho has poor insight into his mental illness and need for medication, and frequently asks for the medications to be discontinued. He believes they are street drugs and they are causing him harm.
26A risk assessment was completed in 2023, which is still valid, and rates his risk of violent recidivism in the high range.
27Dr. Courtright testified at this hearing. She has been treating Mr. Botelho for many years. She indicated that Mr. Botelho’s clinical presentation has remained unchanged over the past year. He continues to experience treatment refractory symptoms of his schizophrenia despite many medication trials. He has prominent thought disorganization and delusions, and will intermittently engage in bizarre behaviour or respond to internal stimuli.
28His ability to socialize and tolerate interactions with others has improved, so he is able to exercise privileges on the non-secure side of the hospital. However, with periodic bizarre thought content, it can be very difficult to redirect him and have a rational conversation.
29His behaviour continues to be aggressive in nature, most often threatening to punch people, as well as, behaviour that is sexually inappropriate. This includes exposing himself and making vulgar propositions.
30Dr. Courtright stated that she believes Mr. Botelho is a significant risk to the safety of the public, and that this risk is controlled by external supports, the Hospital and the Review Board. He will require a very special residence that offers significant support if he is to be discharged to live in the community. With his intellectual disability the residence would have to have staff skilled in intellectual disabilities to provide proper care for Mr. Botelho.
31Regarding fitness to stand trial, Dr. Courtright indicated that Mr. Botelho can at times express an understanding of the court process and the parties involved. This level of understanding is however fleeting, and he can also have profound difficulties communicating on very simple subjects as a result of his psychotic illness. In her opinion, the majority of time he is incapable of meaningful participation in the trial process. He would be unable to comprehend the basics of court proceedings, and would not be able to instruct counsel.
32Dr. Courtright also believes that Mr. Botelho is not likely to ever improve to an extent where he is considered fit to stand trial. Many different medications have been tried, including clozapine, which has resulted in modest improvements in his ability to socialize, but has not improved his fitness to stand trial.
33Dr. Courtright advised Mr. Dimitry that Mr. Botelho currently exercises level 2 and 3 privileges escorted by staff. Level 3 is the public grounds of the hospital. She also advised that there are very few residences in the city that offer the level of support that is necessary.
Submissions
34Counsel for the Hospital and for the Attorney-General continued to recommend that Mr. Botelho is unfit to stand trial, and that a continuation of the current Disposition with the same terms is appropriate. Counsel for Mr. Botelho was not in a position to agree or disagree with the Hospital, but was not arguing against the Hospital’s recommendation.
Analysis
35After considering the evidence, the panel has no hesitation in concluding that Mr. Botelho is unfit to stand trial, and that he remains a significant threat to the safety of the public.
36The evidence indicates that he suffers severe disorganization, delusions, and perceptual disturbances. He is unable to process information. Mr. Botelho cannot comprehend the complexities of a trial or effectively communicate with counsel.
37His behaviour is often aggressive and violent. Examples of this behaviour are indicated in the Notable Incidents of the Hospital Report. His psychotic symptoms are considered treatment resistant, notwithstanding the various antipsychotic medications that have been tried.
38The risk assessment rated his risk for future violent recidivism as high.
39Dr. Courtright testified that Mr. Botelho will require very specialized housing with skilled staff if he is to live in the community, to control, or at least manage, his behaviour. He is a significant risk to the safety of the public and a detention order is necessary.
40In coming to this conclusion, the panel has applied the principles in s. 672.5401 of the Criminal Code.
Dated this 25th day of March 2025, at the City of Toronto, in the Toronto Region.
Kevin McKenna
Legal Member
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Office of the Registrar
Ontario Review Board