Ontario Review Board
Re: Victor Flemming
ORB File No: 5668
Hearing held on: Monday, February 24, 2025
Place of hearing: Waypoint Centre for Mental Health Care 500 Church Street, Penetanguishene
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. C. MacIntyre, K.C. Members: Dr. C. Krasnik Dr. G. Stones Ms. A. La Viola Ms. D. Smith
Parties Appearing:
Accused: Victor Flemming Counsel: Ms. M. Addie
The person in charge of hospital: Representative: Ms. M. Kraftscik
Attorney General of Ontario: Counsel: Ms. M. Levasseur
REASONS FOR DISPOSITION
(Dated April 11, 2025)
Introduction
On July 22, 2010, Victor Flemming was found not criminally responsible on account of mental disorder on charges of assault causing bodily harm (x2), assault with a weapon (x3) and possession of a weapon for dangerous purpose, all contrary to the Criminal Code.
Mr. Flemming is currently subject to an Ontario Review Board Disposition of February 29, 2024, which detains him at the Waypoint Centre for Mental Health Care – High Secure Provincial Forensic Programs, Penetanguishene with limited privileges typical of this high secure hospital, up to and including hospital and grounds privileges beyond the secure perimeter, escorted by staff.
On February 24, 2025, the Ontario Review Board convened at Waypoint Centre for Mental Health Care (“Waypoint”) to conduct Mr. Flemming's annual review and to make a disposition further to s. 672.81(1) of the Criminal Code.
At the outset of the hearing all parties agreed that Mr. Flemming remained a significant threat to the safety of the public. The hospital's counsel and the accused's counsel submitted that Mr. Flemming no longer required detention at a high secure facility and recommended a transfer to the Brockville Mental Health Centre. Ms. Levasseur, on behalf of the Attorney General, expected to adopt a similar position and at the conclusion of the hearing she did join these parties in their recommendation to transfer Mr. Flemming to the Brockville Mental Health Centre.
Ms. Addie suggested that the privilege of accompanied passes should be included in Mr. Flemming’s privileges while at Brockville. At the conclusion of the hearing the Crown Attorney and hospital had no objection to this suggestion.
At the conclusion of the hearing the Review Board found that Mr. Flemming remained a significant threat to the safety of the public and ordered his transfer to Brockville Mental Health Centre with the privileges and conditions recommended by the hospital including an added privilege of accompanied passes on hospital grounds.
Index Offences
- The index offences are outlined in last year's Reasons for Disposition, as follows:
“On Tuesday, the 16th of June, 2009, at about 12:00 p.m., the accused, Victor Flemming, was on the westbound subway train at Chester Subway, 22 Chester Avenue, in the City of Toronto in the Toronto Region.
Victim #1, [the 76 year old male victim], a 76 year old male, was travelling with his caregiver, Victim #2, [female victim]. They were sitting and talking when, out of nowhere, the accused hit [the 76 year old male victim] on the left side of the face with a glass bottle. The accused then took the glass bottle and tried to hit [the female victim] with it but he missed and struck the passenger support pole instead. The accused then walked off.
The victims pressed the Passenger Assistance Alarm Strip and the train came to a stop at
Chester Subway and the doors opened. The accused exited the train and made his escape.
TTC Special Constables responded to the Passenger Assistance Alarm and spoke to the victims. Other TTC Special Constables located the accused on Broadview Avenue just north of the Broadview Subway Station near Pretoria Avenue.
As they were pulling up to speak to the accused, they observed him with a glass bottle in his hand. He raised his arm as if to throw or strike another person in the back of the head, Victim #3, [male victim], who was walking northbound along the east side of Broadview Avenue.
The TTC Special Constables yelled at the accused to stop and he did not complete the throwing motion and still had the bottle in his hand.
The accused was placed under arrest and advised of his Right to Counsel. The accused was not suitable for release and he was transported to 54 Division where he was investigated and processed on these charges.
The accused was held in custody pending a Show Cause Hearing.
No injury to Victim #2 or to Victim #3.
Injuries: Victim #1 – Bruising to face and gash to side of face.
November 9, 2009:
Charge: Assault Causing Bodily Harm
Background: At the time of this offence, the accused was in custody on other criminal matters and appearing at court to answer to those charges.
On Monday, November 9, 2009, at 12:08 p.m., the victim in this matter, [female victim], was working in uniform as a court officer assigned to duties at the Old City Hall Courthouse.
[The female victim] and her escort, Court Officer [officer’s name] were assigned to transport the accused, Victor Flemming, to a meeting with his lawyer, and these court officers entered the cell to facilitate this meeting.
When the court officers removed the handcuffs from Flemming, he quickly made a fist to swing and hit [the female victim] in the face causing her to immediately lose consciousness and fall to the ground.
[The female victim] lay on the floor unconscious for a few minutes while other court officers intervened and placed the handcuffs back on Flemming and to restore order and safety within the cell area.
[The female victim] was transported to hospital for medical attention, treated by a doctor and released.
Flemming was returned to a detention facility until officers prepared a Judge’s Order for the accused to appear on today’s date to answer to the charges before the courts today.
Injuries to victim:
Immediate loss of consciousness
Concussion
Swelling to face and nose area
Ligament damage to left hand
Cartilage damage to nose”
Background
The background available with respect to Mr. Flemming is contained in a Hospital Report of January 28, 2025, filed as Exhibit 1 at today's hearing. Mr. Flemming is a 35-year-old man. He was born in Toronto, but from the age of two months until he was 15 he was raised by his mother in St. Kitt’s. He returned to Canada in 2005.
According to Mr. Flemming's mother, he was a well-mannered child without behavioural issues and prior to grade 10 had high marks in school. Unfortunately, due to his marijuana use he began skipping classes and it was then decided he would return to Canada.
When enrolled in school in Canada he was expelled after robbing another classmate. Thereafter, he supported himself through various jobs as a labourer. Mr. Flemming was brought to the Centre for Addiction and Mental Health by his child and youth worker after experiencing months of increased anxiety resulting from a belief that people in the community were talking about him and ridiculing him. He also believed there were people on the radio sending messages to him. He stopped contact with the friends that he believed were ridiculing him.
While in hospital he was started on olanzapine. While there, he punched a co-patient after being provoked and shoved. Upon his release, Mr. Flemming returned to St. Kitt’s where his medication ran out. His psychotic symptoms worsened and he was admitted to a St. Kitt’s hospital after holding his mother hostage at knifepoint for hours and threatening to kill her. He was then returned to Canada for treatment at CAMH. At discharge from CAMH in September 2008 his diagnosis included schizophrenia - paranoid type, social anxiety disorder and cannabis abuse.
On June 16, 2009, Mr. Flemming was arrested for the index offences. At an assessment for fitness to stand trial, he initially appeared to be grossly psychotic. Dr. Wilkie opined that he was unfit to stand trial.
Ultimately, Mr. Flemming was admitted to Oak Ridge (now Waypoint) pursuant to a treatment order where he was seen by Dr. Angus McDonald who supported that at the time of his assessment Mr. Flemming was unfit to stand trial. Dr. McDonald raised some concerns as follows:
“Criminal Responsibility
This issue has not yet been raised, but I feel absolutely obliged to raise it given the nature of this man’s illness, its apparent oncoming chronicity, his near continuous use of destabilizing street drugs such as marijuana products, with no desire to change his lifestyle and no moral qualms whatsoever about his recurring ideas of wanting to hurt or kill other people including total strangers. This man is Certifiable under the Mental Health Act without any question and would be an obvious danger to the public should he be released at this time. He appears to be a potential candidate for a finding of Not Criminally Responsible and if the Court so wishes, he could be returned for further assessment of this issue. Alternatively, I have difficulty knowing what to suggest to control the potential danger this man poses to others.”
Following Mr. Flemming’s NCR finding on July 22, 2010, the Review Board ordered him detained at Oak Ridge. On November 8, 2011, the Review Board ordered that Mr. Flemming be transferred to Ontario Shores in Whitby and that transfer took place on April 4, 2012. In 2014, he was granted a Conditional Discharge and was given permission to travel to St. Kitt’s for up to 14 days to visit his family. He failed to return within the 14 days. While in St. Kitt’s he was charged with the equivalent of an assault causing bodily harm. He was kept in jail until acquitted of the charges in January of 2018. Mr. Flemming then returned to Canada where he was arrested on his arrival. He was returned to Ontario Shores until a Board hearing changed his Conditional Discharge to a detention at Ontario Shores.
In November of 2018, Mr. Flemming assaulted a patient at Ontario Shores who died from their injuries. Following an investigation by the OPP, a decision was made to not pursue criminal charges. He was then transferred to Waypoint by the Ontario Review Board.
Mr. Flemming’s diagnoses as outlined in the Hospital Report are:
Schizophrenia, paranoid type
Cannabis Dependence, in remission in a controlled setting
Antisocial Personality Disorder
Evidence at Hearing
Dr. Hudson testified on behalf of the hospital. He is the author of the latest update to the Hospital Report and adopted its contents.
Dr. Hudson testified that Mr. Flemming has been receiving clozapine medication since his last Board hearing. He is now on a dose of 500 ml to which Mr. Flemming agreed. Mr. Flemming has “markedly improved” on clozapine and he has been weaned off his zuclopenthixol medication.
There have been no incidents of aggression and Mr. Flemming has demonstrated fewer residual symptoms of schizophrenia and has enjoyed off-unit privileges without incident.
Mr. Flemming’s diagnoses this year continues to be Schizophrenia - paranoid type, Cannabis Dependence in remission in a controlled setting and Antisocial Personality Disorder.
At last year’s Board hearing Dr. Hudson had questioned the diagnosis of antisocial personality disorder; however, he now testified that since Mr. Flemming’s psychotic symptoms have improved, signs of antisocial personality disorder have been more evident. Mr. Flemming continues to be quite adamant and assertive and he lacks empathy. Dr. Hudson is now more convinced that antisocial personality disorder is a valid diagnosis.
When the hospital first raised the prospect of a transfer to a less secure hospital, Mr. Flemming had initially wanted to go to Ontario Shores where he had been detained before his transfer to Waypoint. He felt comfortable about Ontario Shores as he was familiar with the hospital and staff.
Dr. Hudson expected that Ontario Shores would be unwilling to accept Mr. Flemming's transfer and he discussed with Mr. Flemming the prospects of a transfer to another medium secure hospital. As a result, a Rule 13 Notice was also sent to the Brockville Mental Health Centre.
Responses from both hospitals were received and marked as exhibits. The response from Ontario Shores, perhaps predictably, was a definite rejection. In its letter of February 20, 2025, Ontario Shores highlighted Mr. Flemming's long history of repeated assaultive behaviour and the assault on a patient, resulting in that patient’s death, while he was at Ontario Shores. The letter also asserted that despite gains with clozapine, it was premature to consider Mr. Flemming’s transfer to a less secure hospital.
By its letter of February 11, 2025, the Brockville Mental Health Centre agreed to accept Mr. Flemming’s transfer, noting that his aggression has been under better control on clozapine medication and he has not had an incident of physical aggression since October of 2023.
In addressing Ms. Addie’s suggestion that privileges at the receiving hospital should include hospital grounds accompanied by staff, Dr. Hudson pointed out that although Mr. Flemming has a history of elopement; he is now considered to be at the best ever level of his mental state and he is aware that efforts at elopement would likely sabotage his detention at a less secure hospital.
Decision
- All parties agreed that Mr. Flemming continues to represent a significant threat to the safety of the public. The evidence supporting this is clearly outlined in the Hospital Report and can be summarized in the opinion of the clinical team as follows:
“It is the unanimous opinion of the Clinical Team that Mr. Flemming continues to represent a significant threat to the safety of the public. Mr. Flemming is diagnosed with a major mental illness, Schizophrenia, Paranoid Type, symptoms of which have historically included persecutory delusions that inform his behaviour. In the context of his illness, Mr. Flemming has been repeatedly violent and assaultive; of added concern, he has also been assaultive independent of symptoms of major mental illness. Mr. Flemming has a history of non-adherence to medications, as well as a history of substance abuse. His high PCLR score further underscores his risk.”
Added to this is a greater emphasis now placed on the presence of an antisocial personality disorder as substantiated by Dr. Hudson in his evidence. The Board accepts the totality of evidence presented that Mr. Flemming remains a significant threat to the safety of the public and he must remain under the Board’s jurisdiction.
In addressing the proposed transfer to a medium secure hospital, the clinical team also stated:
“In coming to their recommendation, the clinical team considered that Mr. Flemming has been absent aggression for well over a year, and consistent with the initiation of clozapine, he has been seen more on the unit, has participated in therapeutic programming, and has been described as more engaging with staff. As reported earlier, “There has been a noticeable increase in spontaneous and positive interactions with staff and peers following initiation of Clozapine”. Additionally, Mr. Flemming has worked off the unit daily since early summer without issue. While he continues to spend a lot of time in his room, and presents as guarded when discussing his symptoms, he has shown improvements in these areas this past year.
With this in mind the clinical team is unanimous, though cautious, in its recommendation for Mr. Flemming’s transfer to a less secure facility. ... Of added comfort is that Mr. Flemming has been consistently compliant with clozapine and its protocols, and agreeable with suggested changes in efforts to better target concerning symptoms.”
The Board is quite aware of Mr. Flemming’s long and violent history and Dr. McDonald’s prescient concerns about his likely danger to others. The Board also shares the clinical team’s caution in supporting a transfer, yet the Board finds that the evidence today supports that the least onerous and least restrictive disposition is a transfer to a less secure forensic hospital, specifically to the Brockville Mental Health Centre.
Although Dr. Hudson was unaware of the waitlist for Brockville, it is likely to be many months before a bed is found for Mr. Flemming. In the meantime, he will continue being treated by Waypoint and specifically, the plan is to continue his clozapine medication with the hope of further improvement.
In all the circumstances the Board finds that a transfer to Brockville Mental Health Centre with the terms and conditions recommended by the hospital, including the addition of hospital and grounds privileges accompanied by staff, represents the necessary and appropriate Disposition at this time.
DATED this 11th day of April 2025, at the City of Toronto, in the Toronto Region.
Mr. C. MacIntyre, K.C. Alternate Chairperson Office of the Registrar Ontario Review Board