Ontario Review Board
Re: David Foster
ORB File No: 3676
Hearing held on: Thursday, January 30, 2025
Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. T. Mann Members: Dr. A.D. Jones Dr. H. Moulden Ms. K. Tomaszewski Ms. C. Plyley
Parties Appearing:
Accused: David Foster Counsel: Ms. C. Whillier
The person in charge of hospital: Counsel: Ms. J. Zamprogna
Attorney General of Ontario: Counsel: Mr. D. Rows
REASONS FOR DISPOSITION
(Dated March 31, 2025)
Introduction:
On November 19, 2002, David Foster was found not criminally responsible by reason of mental disorder on a single count of second-degree murder and two charges of assault peace officer, all contrary to the Criminal Code. He is currently subject to a Disposition of the Ontario Review Board (“the ORB” or “the Board”) dated December 13, 2023, detaining him at the Southwest Centre for Forensic Mental Health Care (“the Hospital” or “the Southwest Centre”) subject to various conditions and an envelope of privileges, the most liberal of which includes that he may live in the community of Elgin or Middlesex Counties in accommodation approved by the person in charge of the Hospital.
On January 30, 2025, a panel of the Ontario Review Board convened a hearing to review that Disposition, pursuant to section 672.81(1) of the Criminal Code. Mr. Foster was present via videoconferencing technology due to being unwell1 and represented by counsel, Ms. C. Whillier. Also present at the hearing were a number of Hospital staff members who had worked with Mr. Foster over the years.
At issue in this hearing is whether Mr. Foster poses a significant threat to the safety of the public, as defined in s. 672.5401 of the Criminal Code. If so, the necessary and appropriate Disposition in the circumstances must be determined, bearing in mind the factors set forth in s. 672.54 of the Criminal Code.
For the reasons set out below, and based on expert opinions and evidence before it, the Board concluded that Mr. Foster no longer presents a significant threat to the safety of the public. The Board further found it was therefore appropriate to grant Mr. Foster an Absolute Discharge.
The Record for the hearing consisted of the Revised Notice of Hearing, a Disposition dated December 13, 2023 and the Reasons for Disposition dated January 29, 2024. On consent of all parties, a Hospital Report dated October 17, 2024 was admitted into evidence as Exhibit 1. In addition to the Hospital Report, the panel also benefitted from oral evidence from Dr. Arun Prakash, Mr. Foster’s attending psychiatrist.
At the outset of the hearing the parties were canvassed for their initial without prejudice recommendations to the Board. The Board was presented with a joint position that Mr. Foster no longer posed a significant threat to the safety of the public, and that he should be discharged absolutely.
Evidence at the Hearing
Drawing first from the Hospital Report, Mr. Foster is diagnosed with Schizoaffective Disorder (bipolar subtype), Substance Use Disorder (in sustained remission), Personality Disorder Mixed Type (narcissistic, avoidant, passive-aggressive traits).
In terms of the index offence, the Hospital Report describes this as follows:
“On April 11, 2000, at 1142 hours police received a call that a naked male was walking down the street. On investigation, police found Mr. Foster in a state of confusion. His hands were cut and bleeding and he had numerous abrasions on his legs and torso. He was apprehended under the Mental Health Act and taken to the hospital for treatment. Police followed a trail of blood drops back to Mr. Foster’s residence and found that he appeared to have cut his hands by smashing one of the apartment windows.
At 1304 hours an ambulance was called to the lower apartment of the same building regarding a deceased male. The victim, 89 years of age, was found lying face-up, partly on his bed. There were blood smears around his neck and on his wrists. When the deceased was moved there was more blood found on the bed. When police interviewed Mr. Foster at the hospital and asked how he got blood on his hands, Mr. Foster replied that he had murdered Ed Foster (the victim, James Edmund Foster, was no relation to the patient). Findings on autopsy were consistent with manual strangulation.
When Mr. Foster was being interviewed on April 12, 2000, he suddenly sprang from his feet and punched the detective questioning him in the head knocking him backwards in his chair onto the floor. Mr. Foster jumped on top of the detective and continued punching him until the detective was able to gain physical control of him. Mr. Foster was escorted back to his seat and seemed to calm down. The detective attempted to continue the interview and Mr. Foster again suddenly sprang from his seat, punching the detective in the head. The detective suffered minor bruising and abrasions to his head and left arm.”
The Hospital Report provides further context surrounding the index offences, noting that in the days leading up to the commission of the offence, Mr. Foster experienced restlessness and several consecutive nights of insomnia. His alcohol consumption had increased prior to his offence. He was religiously preoccupied with themes of “the second coming of Christ” and the “end of the world”. There was evidence he had taken his elderly landlord's sleeping pills before suddenly strangling him. Reportedly, Mr. Foster had made a similar attempt on the victim previously, but the victim hesitated to reveal the episode, not wanting his family members to arrange for him to live in a retirement home. Mr. Foster did not remember many details of the index offence, save for his having run naked in the street and his arrest afterwards by the police. The clinical record showed that he was in a state of confusion and experiencing an acute episode of psychosis at the time.
The Hospital Report is cumulative in nature; as such, it also sets out in detail Mr. Foster’s personal, legal, and extensive psychiatric history, which need not be repeated here. Of note, Mr. Foster has two dated convictions for impaired driving and a conviction for mischief. All of these convictions date back prior to 1986. Significantly, and to his very great credit, Mr. Foster has now abstained from alcohol consumption for more than 25 years, including while living in the community where there is potential for easier access to substances. Also of note, Mr. Foster was a good athlete and an excellent hockey player in his youth. When well, he is a social individual who enjoys being in leadership roles and helping others.
Clinically, throughout his years under the jurisdiction of the Board, Mr. Foster experienced recurrent depressive episodes which required staff intervention to prevent them progressing to full-blown psychotic episodes. During psychotic episodes, Mr. Foster typically experienced command hallucinations and paranoid delusions which at times would lead to unpredictable, aggressive and assaultive behaviours. He was highly stress-vulnerable, finding it difficult to cope with unfamiliar environments and the challenges inherent in daily living. When his mental condition deteriorated, he experienced the emergence of hallucinations and delusional themes similar to those present at the time of the index offence.
When unwell, Mr. Foster required significant assistance with his activities of daily living and to adhere to his medication regimen. Sleep disruption and physical illness were identified as significant triggers for decompensation in Mr. Foster’s mental state. At times, Mr. Foster was unaware of or denied worsening sleep issues and did not always proactively seek help to address them. His underlying personality disorder periodically led him to become overconfident, overestimating his abilities and level of functioning. Insight into the index offence, diagnoses, and need for medication fluctuated according to his mental status but remained partial even when well. He had a tendency to ruminate about the side effects of psychotropic medications and to experience anxiety around medication trials and adjustments. He consistently demonstrated a tendency to decompensate rapidly and markedly with suboptimal medication treatment or noncompliance.
Mr. Foster developed numerous physical disabilities which impact his behaviours and ability to dispense his medication independently and accurately. His extensive list of chronic illnesses, include high cholesterol, hypertension, basal cell carcinoma (left wrist), obstructive sleep apnea, benign prostatic hyperplasia and osteoarthritis. In 2013, Mr. Foster had a brain tumor excised which left him with hormone production and control deficiencies which resulted in hypothyroidism, adrenal insufficiency, testosterone deficiency and optic nerve damage, rendering him legally blind, and affecting his ability to safely navigate his environment. Mr. Foster has several specialists who follow him on a regular basis to monitor his chronic health issues. He takes a wide array of medications to address his physical health issues. He is at high risk of falls due to his vision issues and difficulty ambulating.
With the benefit of time, and residing in a structured, supported and supervised setting, Mr. Foster made slow, often variable but overall incremental progress notwithstanding the ongoing presence of mental illness and his propensity for rapid decompensation and re-emergence of hallucinations and delusional themes similar to those present at the time of the index offence.
Mr. Foster began transitioning to long-term care (LTC), at the Village of Glendale Crossing (“Glendale”) in London on June 17, 2021 and was formally discharged from hospital on July 26, 2021. The Hospital’s outreach team began to follow Mr. Foster upon his move to LTC.
Mr. Foster's transition to community living after his years’ long hospitalization was successful overall. He consistently reported being happy at the LTC home, engaged well with staff and made friends with other residents with similar interests. He progressed in developing therapeutic rapport with outreach team members and with support was fully adherent to his treatment regimen.
Central to Mr. Foster’s stability in the community was Glendale Crossing having provided him with a private room due to COVID-19 protocols that were in place at the time of his discharge from hospital (Mr. Foster uses a CPAP machine, which caused a concern for potential aerosolization of virus particles, placing those in close proximity and others at risk of contracting the virus). It was understood that eventually, this accommodation would come to an end and Mr. Foster would have to pay for a private room or move to a shared room with only a curtain separating him from his co-resident. As such, Mr. Foster chose to remain waitlisted for a few of the LTC homes offering a dividing wall between living spaces of shared rooms. The potential move to a semi-private room was a major source of stress for Mr. Foster due to his growing contentment in his current accommodations. At times he became stressed at the thought of his age-related declining physical health, financial concerns, and certain anniversaries which caused him to reflect and ruminate thus affecting his mental state.
Due to Mr. Foster's history of becoming over involved with the affairs of peers, LTC staff were advised to monitor this aspect of his clinical presentation and have not reported any concerns. Neither were there reported concerns about interpersonal relationship difficulties with vulnerable co-residents, the latter of which was a concern given the circumstances giving rise to the index offences.
On May 15, 2023, Mr. Foster was readmitted to the Hospital. Mr. Foster was experiencing physical health issues to do with pneumonia and constipation. He presented with increased confusion, anxiety and racing thoughts that appeared to be correlated with the change in his physical health. He endorsed suicidal and homicidal ideation and was fearful he would hurt someone in the LTC facility. As-needed medications were prescribed and constant observation was instituted due to his voicing of passive suicidal ideation. Within a matter of days, he slowly began to return to his baseline. He was open with his clinical team and willingly discussed his previous ideas to hurt other people.
By May 29, 2023, Mr. Foster was feeling much better. His suicidal and homicidal ideations and worries had subsided. He was described as having normal mood and no agitation and was pleasant and co-operative with staff. He wanted to return to Glendale Crossing; the facility proved willing to have him return and so plans were made to discharge him on a 30-day leave of absence which began on June 7, 2023. After returning to the LTC home, his symptoms had mostly resolved but he remained mentally fragile. This was addressed by increased frequency of contact by the outreach team and support to address his ongoing sleep issues.
Mr. Foster has a wide range of familial and friendship supports. Mr. Foster’s sister, Honey Cornfoot, her husband Howard Cornfoot and Mr. Foster’s brother, John Foster, are his main supports. They speak almost daily and frequently visit him at the LTC home Honey Cornfoot in particular has been a stalwart support to Mr. Foster, supporting him throughout his many difficulties over the years. Honey Cornfoot and John Foster are Mr. Foster’s substitute decision makers as Mr. Foster has been deemed incapable of consenting to treatment with psychiatric medication. He did not contest the finding of incapacity.
Mr. Foster also has close contact with his AA sponsor, Dan. Mr. Foster is very social within the LTC home and enjoys conversing with staff and other residents, actively participating in social activities within the home. He has developed many positive relationships with staff and peers.
As Mr. Foster did not have any community-based mental health supports for the majority of his community tenure, his stability in the LTC home depended on forensic supervision and treatment. This, along with Mr. Foster's fragile mental health and tendency to deteriorate rapidly, required that he be subject to a Detention order which allowed the Hospital to intervene quickly and proactively manage his risk of harm to others.
At last year’s annual review, Mr. Foster was assessed, absent forensic support, as being likely to discontinue some if not all, of his medication, whereupon he would rapidly decompensate, have dysregulated sleep patterns, relapse into substance use to cope with stress, thus increasing his risk of re-offence and future violence. Mr. Foster’s 2023 risk assessment (HCR-20 v3) indicated that if he were to remain on a detention disposition order, he would represent a low risk of violent re-offending in the next 12 months. However, his risk would rise to “moderate-to-high” if he were to be granted increased liberties. Consequently, the Mental Health Act was deemed insufficient to manage Mr. Foster's risk to the safety of the public and the necessary and appropriate disposition was found to be that of a detention order
Dr. Prakash in his oral evidence adopted the contents of the Hospital Report and provided the panel with an overview of Mr. Foster’s progress under the jurisdiction of the Board during the past review period. Dr. Prakash indicated that Mr. Foster had been quite stable in his mental state with only one admission to hospital in June 2024 when he experienced confusion and delirium secondary to a urinary tract infection and another in July 2024 when he was admitted hospital after having suffered an unwitnessed fall in his bathroom, likely due to hypotension. Consistent with his well-established history of decompensation when physically unwell, he developed delirium. He was last discharged back to Glendale on July 11, 2024. His recovery was somewhat prolonged in that he developed painful bed sores which affected his ability to ambulate independently for any significant distance. He is now doing better and able to use a walker to ambulate in his room. He has not had any admissions to hospital since July 2024.
In terms of Mr. Foster’s insight into his index offence, mental illnesses and his enduring need for antipsychotic medication, Dr. Prakash advised the Board that it remains partial, but that this had not led to problems with medication compliance. Mr. Foster has not presented any behavioural or management difficulties since his admission to Glendale. Dr. Prakash noted that Mr. Foster will always be vulnerable to rapid, profound relapse in his mental state, even when compliant with his (injectable) antipsychotic medication, due to the impact of his physical health on his stability.
Dr. Prakash described in detail the implementation of community-based mental health supports in preparation for Mr. Foster’s hoped-for discharge from forensic support and supervision. The doctor listed a number of factors that had changed for Mr. Foster over the review period, leading to the treatment team reassessing his risk and thereafter recommending an absolute discharge, including:
a. Mr. Foster has a good relationship with staff at his LTC home;
b. He is now subject to a community treatment order (CTO) which allows for effective oversight by a non-forensic psychiatrist;
c. Mr. Foster is adherent to his medication regimen with the support of LTC staff and independently manages his medical appointments and transportation to those appointments;
d. Mr. Foster has developed a therapeutic rapport with the geriatric Discharge Liaison Team (“DLT”) which operates under the umbrella of St. Joseph’s Healthcare, London. The DLT accepted him into their care and began working with him on September 25, 2024, having multiple visits every week or two, and will assume his care if he is granted an absolute discharge;
e. Mr. Foster can be followed by the geriatric psychiatry team for as long as necessary;
f. Mr. Foster has also been assigned a psychiatrist, Dr. Lisa Van Bussel, at the Parkwood Institute which is also under the umbrella of St. Joseph’s Healthcare, London;
g. Mr. Foster has now developed a degree of contentment with his current residence and is now not as focused on needing a private room with a higher degree of privacy than he would otherwise have if moved to a semi-private room. This is a significant change from previous years when he contemplated leaving his LTC home;
h. Even if Mr. Foster decides to leave his current LTC home and move to Elgin Manor, he will remain with the geriatric psychiatry team as their catchment area includes the St. Thomas area;
i. Most of the specialists with whom he consults regarding his multiple chronic illnesses are in London, as are family members with whom he is close; this provides a practical incentive to remain where he is;
j. There is a general practitioner affiliated with the LTC home who will care for his day-to-day physical health issues and prescribe his psychiatric medication;
k. Mr. Foster has a routine that provides him with structure to his day, as well as friends who live at the LTC home. He very much enjoys engaging in social activities and programs there;
l. There is no time limitation on his ability to reside in the LTC home;
m. LTC staff and the DLT are well aware of Mr. Foster’s history and his triggers which lead to decompensation in his mental state;
n. If Mr. Foster requires hospitalization to stabilize his mental health, he will have access to Parkwood Hospital.
Dr. Prakash opined that the two most important factors contributing to Mr. Foster’s current level of stability is his being accepted into the care of the DLT and Dr. Van Bussel accepting Mr. Foster as a patient. These factors were instrumental in the treatment team’s assessment that Mr. Foster no longer posed a significant threat to the safety of the public. Dr. Prakash clarified that while Mr. Foster's risk of harm to others was “not zero” due to his static risk factors and propensity to rapidly decompensate when stressed or unwell, the team was unanimous in its finding that he no longer met the threshold of significant threat.
The panel questioned Dr. Prakash closely on the Hospital’s recommendation that Mr. Foster now be found to be at low risk of harm when for many years, including 2023, he was found to be at moderate-to-high risk of serious physical or psychological harm to the public if not subject to a detention disposition order. Dr. Prakash agreed that while it was somewhat unusual for the Hospital to recommend a transition from a detention order disposition to an absolute discharge without any intermediary steps (such as conditional discharge), he nevertheless felt it was appropriate from a public safety perspective given the significant reduction in clinical and dynamic risk factors occasioned by the involvement of the geriatric team, including Dr. Van Bussel, and his now being subject to the extrinsic support of a CTO.
Mr. Foster remained attentive throughout the hearing, although off-camera, and occasionally offered clarifying information (such as a change in the number of his approved persons due to one having passed away).
In submissions, all counsel maintained the positions they had taken at the outset of the hearing.
Analysis and Conclusions:
Having heard and considered all of the evidence and submissions from the parties, this panel of the Board agrees with the joint submission that Mr. Foster no longer poses a significant threat to the safety of the public. However, quite apart from the joint submission, the panel has no difficulty coming to an independent conclusion that Mr. Foster’s current constellation of symptoms and behaviours no longer meets the threshold of significant threat.
In coming to this conclusion, the Board relies on the risk assessments set out in the Hospital Report at pp 300 – 304 that with the current supports in place, which essentially mimic the support provided by the forensic outreach team, Mr. Foster has a low risk for future violence towards others.
The Board accepts the uncontroverted opinion of Dr. Prakash and the treatment team that Mr. Foster no longer meets the threshold of significant threat.
In coming to this decision, the Board carefully considered the decision of the Supreme Court in Winko v. British Columbia. In Winko, the Supreme Court of Canada held that restrictions can only be imposed on an NCR accused’s liberty if the evidence before the Board demonstrates that the accused actually constitutes a significant threat to public safety. Such threat is not to be presumed, and there is no legal or evidentiary onus on the accused to demonstrate that he/she is not a significant risk: see Winko at paragraphs 46 and 54.
Section 672.54 of the Criminal Code does not permit a Review Board to refuse granting an absolute discharge if it has doubts whether the accused poses a significant threat to public safety. Rather, there must be a positive finding of significant risk to support restrictions on an individual’s liberty. Something less, for example, uncertainty, cannot suffice. If a Review Board cannot resolve the question of whether an NCR accused actually constitutes a significant risk of committing a serious criminal offence, the Board must grant an absolute discharge: see R. v. Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625 at paragraph 49.
In closely examining the range of evidence identified by the Supreme Court of Canada in Winko, the Board has no difficulty concluding that Mr. Foster no longer poses a significant risk of committing a serious offence. His risk is minimal and diminishing. He has appropriate community-based mental health and relapse prevention supports in place.
For the foregoing reasons, it is the firm, unanimous and considered opinion of the Board that Mr. Foster no longer meets the threshold test for significant threat to the safety of the public, as defined in Winko. Therefore, Mr. Foster is entitled to an Absolute Discharge. A Disposition will issue accordingly. The Board wishes Mr. Foster well in his future endeavours.
DATED this 31st day of March 2025, at the City of Toronto, in the Region of Toronto.
Ms. T. Mann Alternate Chairperson Office of the Registrar Ontario Review Board