Re: Kerrick P. McNaughton, 2025 CanLII 26092

Ontario Review Board

Re: Kerrick P. McNaughton

ORB File No: 8113

Hearing held on: Wednesday, January 22, 2025

Place of hearing: Waypoint Centre for Mental Health Care

Pursuant to: Section 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. J. Mills Members: Dr. W. Johnston (via Zoom) Dr. G. Stones Ms. M. Chamberlain Ms. B. Naegele

Parties Appearing:

Accused: Kerrick P. McNaughton Counsel: Mr. F. Bernhardt

The person in charge of hospital: Representative: Ms. T. Newman

Attorney General of Ontario: Counsel: Ms. K. Staats

REASONS FOR DISPOSITION

(Dated March 26, 2025)

1On July 26, 2022, Kerrick McNaughton was found not criminally responsible on account of mental disorder on charges of arson-reckless disregard for human life, contrary to the Criminal Code of Canada, (the "Criminal Code").

2Mr. McNaughton is subject to a disposition of the Ontario Review Board (the "Board") dated February 12, 2024, which orders that he be detained at the Provincial Forensic Programs Division of the Waypoint Centre for Mental Health Care ("Waypoint" or the "Hospital"), with privileges up to hospital and grounds beyond the secure perimeter, escorted by staff.

3On Wednesday, January 22, 2025, the Ontario Review Board convened a hearing at Waypoint pursuant to s. 672.81(1) of the Criminal Code. Mr. McNaughton was in attendance and was represented by his counsel, Mr. Bernhardt.

Position of the Parties

4. At the commencement of the hearing, counsel for the Hospital submitted that Mr. McNaughton remains a significant threat to the safety of the public and recommended that he be detained on the all male Secure Forensic Unit at the Centre for Addiction and Mental Health ("CAMH"). Counsel for the Attorney General and counsel for Mr. McNaughton agreed with the Hospital's position. All parties maintained their respective positions in closing submissions.

5. For the reasons set out below the Board finds that Mr. McNaughton continues to represent a significant threat to the safety of the public and that he should be detained on the all-male Secure Forensic Unit at CAMH, with conditions up to and including hospital grounds privileges accompanied by staff, or a person approved by the person in charge; and to enter the community, escorted by staff. Until such time as he is transferred to CAMH, authority shall remain with Waypoint.

Evidence at the Hearing:

6. The Board received documentary evidence in the form of a Hospital Report dated January 8, 2025, a Rule 13 notice to CAMH dated December 16, 2024, a Response from CAMH dated January 13, 2025; and a Rule 13 notice to Ontario Shores dated January 1, 2025, marked as Exhibit 1 through 4 respectively. The Board also heard viva voce testimony from Dr. Ismail, Mr. McNaughton's treating psychiatrist.

Index Offence:

7. The circumstances of the index offences are taken from the most recent Reasons for Disposition, as follows:

"The following was excerpted from the Synopsis of the Toronto Police Service.

Background:

On August 3, 2021, the accused was charged with an indecent act in a public place. On August 9, 2021, the accused was released on surety bail issued by Honorable Justice Walker at the Ontario Court of Justice, located at 1911 Eglinton Avenue in Toronto. The following are conditions of his release:

"Do not communicate in any way either directly or indirectly, by any physical, electronic, or other means, with the following: Laura Connolly".

"Do not be within 100 meters of [address redacted], Toronto".

At the time of the arrest, the father of the accused indicated that he obtained a Form 2 for psychological assessment for his son, the accused.

Synopsis: On Tuesday, March 1, 2022, at approximately 2:29 a.m., the accused exited apartment 207 located at [addressed redacted] in the City of Toronto. The accused walked toward the victim's apartment door located at apartment #202 at [address redacted] and poured an unknown fluid on the ground in front of the apartment. The accused ignited the fluid which initially produced a small flame as the accused walked back to the apartment he exited.

At approximately 2:50 a.m., the victim woke up in her apartment to the sound of the fire alarm going off. The victim was in her apartment with her three children, who were asleep at the time. The victim checked her apartment door and observed flames coming into her apartment between the front door and doorframe. The victim filled buckets of water and was able to put the fire out prior to the fire department responding on scene.

After the initial investigation, the damage caused to the apartment door and entrance was estimated to be approximately $1000.00.

At approximately 1355 hours, officers were made aware of CCTV footages available that observed the fire.

Officers observed the footage and saw the accused exit apartment #207 at [address redacted] and walk over to apartment #202 and start the fire. Toronto Police, building superintendent as well as the victim witnessed the CCTV footage and identified the accused as a previous resident of the building, Kerrick McNaughton.

Arrest: On Tuesday, March 1, 2022, at approximately 1730 hours, officers attended [address redacted] and located the accused. The accused was arrested for Arson Endanger Life and Failing to Comply with Release Order. The accused was transported to 43 Division where he was held for show cause."

Evidence at Hearing:

8. Mr. McNaughton's progress since his last annual review is summarized in the Hospital Report as follows:

"Over the review period, Mr. McNaughton has exhibited a persistent pattern of inappropriate and risky behaviors. These include multiple incidents of sexually explicit conduct, verbal aggression, environmental aggression, and resistance to authority. Notable examples include exposing himself to staff on several occasions, smearing feces, and throwing objects during outbursts. Despite intervention efforts and the implementation of a Crisis Prevention Plan (CPP), these behaviors have persisted, indicating a resistance to treatment and limited progress in addressing his high-risk actions. Additionally, his ongoing symptoms of schizophrenia—such as auditory hallucinations with persecutory themes and paranoia—impair his ability to test reality and further contribute to his irritability and distrust."

9. Dr. Ismail testified that he had read and was in agreement with the Hospital Report. He did note one inaccuracy with regard to Mr. McNaughton's current diagnoses. On page one of the Hospital Report, Mr. McNaughton's diagnoses are listed as: Schizophrenia, Personality Change Due to Another Medical Condition, Disinhibited Type and Exhibitionistic Disorder. Dr. Ismail stated that the treatment team met and agreed that Mr. McNaughton had never actually met the criteria of an exhibitionist disorder. He stated that as the Hospital has obtained more information about Mr. McNaughton's history, it has become clearer that his sexual acting out is as a result of his brain injury instead of exhibitionist tendencies.

10. Dr. Ismail also noted that the Mr. McNaughton continues to represent a significant threat to the safety of the public. He experiences paranoia, is irritable, responds to internal stimuli and has poor impulse control. His intellectual disability also adds to his risk.

11. Despite his ongoing symptoms, the treatment team believes that Mr. McNaughton no longer requires the high secure unit at Waypoint. He noted that Mr. McNaughton has had no seclusions this past year and does not need the staffing ratio provided at Waypoint. Mr. McNaughton stays in his room most of the day and just needs assistance with personal hygiene.

12. Mr. McNaughton has had seven incidences where he has exposed himself to female staff during the reporting period. It is possible that some of the incidents were accidental as they took place in his room and occurred when staff were assisting him with his personal hygiene.

13. Mr. McNaughten has the support of his father who lives in the Toronto area. His father visits Mr. McNaughten every month and it is likely he would be able to visit more often if his son was transferred to CAMH. Historically, the father has been supportive of a transfer to CAMH although the Hospital has not been able to talk to him recently as Mr. McNaughten revoked his permission for the Hospital to speak with his father.

14. Dr. Ismail noted that when the Hospital tries to refer Mr. McNaughton to brain injury clinics in the area, they are unwilling to work with him due to his Schizophrenia diagnosis. He agreed with the Board that it would be helpful to get a current MRI for Mr. McNaughton and stated that the Hospital is currently putting together a neurological referral.

15. Dr. Ismail stated that he was in agreement with the privileges as proposed in the response letter from CAMH. He also stated that CAMH will have the appropriate resources to work with Mr. McNaughten's head injury.

16. Finally, Dr. Ismail stated that Mr. McNaughton seemed to understand that the transfer to CAMH will likely not occur soon but that the disposition would allow for a transfer once a space becomes available.

Findings of the Board:

Significant Threat

17. There is no dispute among the parties that Mr. McNaughton continues to pose a significant threat to the safety of the public. The Board makes a finding of significant threat and relies on the following assessment contained in the Hospital Report:

"Mr. McNaughton continues to present significant risks to public safety, primarily due to his persistent challenges with insight, ongoing symptoms of his mental health disorders, and inappropriate behaviors. Although he demonstrates partial insight into his care plan, he lacks a full understanding of the factors that exacerbate his mental health conditions or increase his risk of violence. He often denies or minimizes the seriousness of his sexually inappropriate behaviors, particularly those directed at female staff.".

Necessary and Appropriate Disposition

18. The Board finds that the necessary and appropriate and least onerous and least restrictive disposition is that he be detained on the all male Secure Forensic Unit at the Centre for Addiction and Mental Health. Mr. McNaughton's behaviours necessitate continued supervision and management under a detention order. His inability to maintain consistent progress and his continued sexually inappropriate behaviour make a secure and structured environment the most appropriate placement for the coming year. Given that Mr. McNaughton has not displayed any physical aggression in the past year and has not required seclusion to manage his behaviour, the Board agrees that his risk can be managed in the less secure setting of CAMH with the privileges as outlined in the formal disposition. In coming to this conclusion, the Board is mindful that CAMH is in agreement that Mr. McNaughten's risk can be managed on a secure forensic unit at their Hospital.