Ontario Review Board
Re: Harriet Gray
ORB File No: 3886
Hearing held on: February 19, 2025
Place of hearing: Thunder Bay Regional Health Sciences Centre
Pursuant to: Section 672.48(1) and 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Goldenberg
Members: Dr. H. Bloom Dr. P. Wright Mr. D. Sandor Ms. S. Duffy
Parties Appearing:
Accused: Harriet Gray Counsel: Ms. M. Biggar
The Person in charge of Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Mr. T. Jukes
REASONS FOR DISPOSITION
(Dated April 10, 2025)
Introduction:
On September 11, 2023, Harriet Gray was found unfit to stand trial on a charge of manslaughter. Ms. Gray is currently subject to a disposition of the Ontario Review Board, dated December 19, 2023, discharging her subject to certain terms and conditions, including that of residing at the Hogarth-Riverview Manor in Thunder Bay, Ontario in the Behavioural Support Unit, and that of keeping the peace and being of good behaviour.
On February 19, 2025, a panel of the Ontario Review Board convened a hearing via Zoom Audio-Visual Technology in light of weather difficulties, to review that disposition. Ms. Gray’s lawyer, Ms. M. Biggar was in attendance, but Ms. Gray was not, having been under the understanding that her personal presence was not required. Ms. Biggar described Ms. Gray’s state of dementia and explained that she had been able to communicate with Ms. Biggar at length as recently as the morning of the hearing. She indicated that she was prepared to proceed in her client’s absence. No other parties objected to this request. Accordingly, the Board made an order pursuant to s. 672.5(10)(a) of the Criminal Code permitting Ms. Gray to be absent from the hearing.
The Record for the hearing included the Revised Notice of Hearing, the most recent Disposition, and the Reasons for that Disposition. On the consent of all parties a Hospital Report, dated February 5, 2025, was entered into evidence as exhibit 1.
The parties were canvassed for their initial positions. The Hospital took the position that Ms. Gray remained unfit and continued to represent a significant threat to the safety of the public as that term has been defined in section 672.5401 of the Criminal Code and as it has been further set out in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. It further took the position that a continuation of the reigning conditional discharge was necessary and appropriate having regard to the objectives set out in section 672.54 of the Criminal Code.
The representative of the Attorney General joined with the Hospital in that initial position.
Counsel for Ms. Gray agreed that her client remained unfit, but took no position on the threshold issue of significant threat. She did highlight her expectation that the evidence would include information as to the role and impact the indigenous health unit and cultural practitioners were having on Ms. Gray, particularly as concerns her mental health and other needs.
For the reasons that follow, the Board has concluded that Ms. Gray continues to be unfit and represents a significant threat to the safety of the public. The Board also has found that a conditional discharge is appropriate and necessary to manage that threat, having regard to the paramount objective of ensuring the safety of the public, and the other objectives of ensuring that Ms. Gray’s mental health and other needs are met, including the ultimate objective of her reintegration into the community.
Evidence at the hearing
The evidence at the hearing came from the Hospital Report and from the live evidence offered by Dr R. Sheppard, Ms. Gray’s treating psychiatrist.
The Hospital Report included significant details surrounding the index offence, but inasmuch as these have been adequately presented in the most recent Reasons for Disposition, we will include that presentation here for convenience:
- The facts of the index offence are set out in the [Hospital Report]… Briefly stated, they are that on May 18, 2022, Ms. Gray, then a resident at the Bethammi long-term care home in Thunder Bay, pushed a 91-year-old co-resident with her four-wheeled walker, causing him to fall backwards and hit his head on a concrete floor in the hallway. The fall caused a brain bleed which led to his death on May 24, 2022. Ms. Gray was arrested and was thereafter released on condition that she remain at the Hogarth long-term care facility.
The Hospital Report also provides significant details associated with Ms. Gray, her personal history and history of struggles with major mental illness. She is now 86 years old, suffering from neurodegenerative dementia. She has a history of aggression and psychosis in the context of a urinary tract infection. She was born in Lac Seul First Nation, Ontario, suffered significant domestic violence and has been predeceased by 5 of her 6 children. She was the subject of residential schools as a youth and attained only a grade 3 education. She has been residing in the behavioural support unit at the Hogarth-Riverview Manor since June 22, 2022. She is neither capable of making decisions concerning her medication nor her finances. The Public Guardian and Trustee is assigned as her substitute decision maker for both of these areas.
The Hospital Report provides an update for this hearing, covering Ms. Gray’s clinical course over the last review period. Beginning at page 11, it explains that Ms. Gray suffers from progressive dementia and that her cognitive functioning is significantly impaired. Her memory is poor and she is disoriented as to time and place. She requires nursing assistance with all aspects of daily living. She has recently begun engaging more socially in the few months preceding this annual review and appears to be enjoying and benefiting from cultural programs and practices where she resides, including drumming. Even so, she has experienced periods of irritability and distress associated with the loss of her children.
The Hospital Report explains that Ms. Gray was experiencing hallucinations, delusions, and periods of aggressivity. This seems to have been somewhat resolved following successful treatment of a urinary tract infection. She no longer requires 1:1 observation and her self-reported mood is apparently good. She appears to be fairly stable. Her behaviour has been unremarkable now for several months. There has been no improvement in her cognitive functioning.
According to the Hospital Report, when assessed by Dr Sheppard, Ms. Gray was unable to engage in conversation on any issue. She appeared to understand that she was in some sort of facility, but did not know how long she had been there. She was unable to focus on topics of conversation and strayed into events from her past, particularly as they related to her children. While her mood was stable, it was clear that she has no ability to participate meaningfully in the legal process. She is unable to describe the nature of the outstanding charges against her, and would be unable to instruct counsel or understand even the functions of those involved in the trial process. The Hospital Report concludes
Her state of unfitness, arising from irreversible and likely progressive cognitive impairment, is undoubtedly permanent.
- The Hospital Report squarely addresses the issue of significant threat to the safety of the public. While it admits that the extent of the risk to public safety is difficult to quantify, it notes that the threat is being managed because of the significant supports being offered to her in a highly controlled environment that has, as necessary, been able to offer 1:1 observation. Given the circumstances of the alleged index offence, this is an important consideration, even where Ms. Gray has not show aggressivity or posed particular management problems in recent months. As noted in the Hospital Report, this is a fairly recent improvement. Historically, Ms. Gray showed aggressivity for at least a year prior to the commission of the alleged index offence. She has suffered from regular periods of irritability and agitation, sometimes accompanied by paranoid ideation or hallucinations that were not tied specifically to the most recent urinary tract infection. This would cause her to lash out physically at others, including vulnerable co-residents. The Hospital Report concludes on this issue as follows:
While Ms. Gray’s recent behavioural stability is encouraging, it is the position of the hospital that a longer period of time will be required to establish that she no longer presents a significant threat to public safety and, in particular, to the safety of the other residents at Hogarth-River Manor.
In his oral evidence, Dr Sheppard adopted the contents of the Hospital Report and confirmed Ms. Gray’s continued lack of fitness to stand trial. He testified that there has actually been some cognitive decline as she presents as being more withdrawn and lost in her own thoughts. She is less able to engage on any issues being discussed. She is increasingly distractable. While her fitness may fluctuate, his opinion is that it is undoubtedly chronic.
Dr Sheppard confirmed the positive progress Ms. Gray has made since the treatment of her urinary tract infection. Even so, on the issue of significant threat, he pointed to her history of aggressivity and to the vulnerable state of other residents at the facility. He testified that, in his view, 6 months of improved behaviour weighed against 2-3 years of aggressive behaviour warrants a cautious approach when it comes to determination of significant threat.
Dr Sheppard testified of the sad and tragic life Ms. Gray has lived and to the value of her involvement with indigenous services available at Hogarth-Riverview Manor. These services include supportive therapy. He did note that while Ms. Gray benefits from the cultural programming and psychological supports available to her, it is not clear whether there has been any concerted effort to help her deal with the trauma she has experienced. He explained that, in the context of her dementia, it is difficult to explore Ms. Gray’s trauma and her reactions to it.
Dr Sheppard confirmed that speaking with Ms. Gray with the assistance of a native-language interpreter did not pose difficulties when it came to his conclusion that Ms. Gray remains unfit. He confirmed that the physician at Hogarth-Riverview Manor maintains Ms. Gray on a low does of Respirdal for mood stabilization. He confirmed that, while Ms. Gray does benefit from the services of an Indigenous practitioner, he himself has had little contact with that individual. He confirmed those factors at Hogarth-Riverview Manor that are helping manage the risk Ms. Gray poses to other vulnerable patients. Hogarth-Riverview Manor is a locked unit for individual with dementia and behavioral problems. Most of its patients are elderly, some in poor condition physically. Dr Sheppard described this residence as being the best fit for Ms. Gray.
Submissions
At the end of the hearing, the Hospital confirmed its position that Ms. Gray continues to be unfit to stand trial and that she continues to represent a significant threat to the safety of the public. It also confirmed its position that a continuation of her conditional discharge is the proper disposition having regard to the objectives set out in section 672.54 of the Criminal Code.
The representative of the Attorney General joined the Hospital in those submissions.
Counsel for Ms. Gray likewise joined with the Hospital, expressing the position need for another review period to monitor Ms. Gray’s current progress, and encouraging her connection to her heritage. Counsel for Ms. Gray did not consider it necessary to request a Gladue Report for the next hearing, under the circumstances.
Analysis and Conclusion
As stated above, the panel had no difficulty accepting the joint submission.
Dealing first with the issue of fitness, this is governed by section 672.22 of the Criminal Code and has been explained by the Ontario Court of Appeal in R. v. Bharwani, 2023 ONCA 203. There the Court of Appeal explained that assessment of fitness to stand trial should include an assessment of whether an individual can conduct a defense and instruct counsel. In this regard, the ability to communicate rationally with counsel is key. The individual must have the ability to make decisions. The individual must be able to understand available options and the consequences coming from those options.
It was clear on the evidence that Ms. Gray is globally unfit. She is highly distractable, unable to discuss any particular issues (including those associated with the outstanding charges), and drifts into communications focused on the trauma she has lived over the course of her unfortunate life. She would not be able to understand the process, the roles of individuals functioning in that process, and could not understand or communicate with counsel about options available to her. She is not oriented as to time and space and has been unable to describe even where she is living or why she is there, beyond a very basic understanding that it is a facility of some kind.
Turning then to the issue of significant threat and disposition, the panel is also convinced that Ms. Gray remains a significant threat to the safety of the public and the evidence would not provide a basis for the Board to make a s. 672.851(1) recommendation to the Court. The index offence is serious and, while she is currently manifesting a decrease in aggressivity, that decrease is recent when compared to 2-3 years of aggressivity. She is living with a vulnerable population and is highly supported and supervised. In this setting the objectives of section 672.54 of the Criminal Code are being met in the best way possible. The level of supervision being offered, at times 1:1, satisfies the primary objective of ensuring the safety of the public. Ms. Gray’s current treatment and engagement in Indigenous practices and services also accord with the Code’s other objectives, ensuring that her mental health and other needs are met. While a Gladue report is not being ordered at this time, it may be helpful for the next panel to have more information surrounding the indigenous programming and services that are helping Ms. Gray stabilize and find some peace and contentment in her situation.
The Board appreciates the circumstances that led to Ms. Gray’s absence. It is unfortunate that she did not attend this hearing. Absent any pressing concerns warranting her absence at the next hearing, it is this panel’s consideration that it would be helpful to have her present with her lawyer.
Accordingly, the Board concludes that Ms. Gray continues to be unfit and represents a significant threat to the safety of the public. She is currently in the “best fit” for her in Thunder Bay and has no desire or ability to move from that residence. As such a continuation of the conditional discharge without change is appropriate.
A disposition will issue accordingly.
DATED this 10th day of April 2025, at the City of Toronto, in the Toronto Region.
D. Sandor Legal Member
Office of the Registrar Ontario Review Board