Ontario Review Board
Re: Elton Garcia
ORB File No: 7708
Hearing held on: Wednesday, March 5, 2025
Place of Hearing: St. Joseph’s Healthcare Hamilton, West 5th Campus
Pursuant to: Section 672.81(1) of the Criminal Code
Before: Alternate Chairperson: Mr. C. Flanagan Members: Dr. K. Hand Dr. A. Kerry Mr. K. McKenna Ms. M. McKinnon
Parties Appearing:
Accused: Elton Garcia1 Counsel: Mr. A. Confente
Person in charge of Hospital: Counsel: Mr. S. O’Brien
Attorney General of Ontario: Counsel: Ms. K. Malkovich
REASONS FOR DISPOSITON
(Dated April 9, 2025)
Introduction
On March 27, 2020, Elton Garcia was found not criminally responsible on account of mental disorder (“NCR”) on charges of assault bodily harm, assault, uttering threats to cause death or bodily harm (x3), resisting or obstructing public or peace officer (x2), and failure to comply with condition of judicial release, all contrary to the Criminal Code.
Mr. Garcia is currently subject to the terms and conditions of a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated March 8, 2024, detaining them at the Forensic Psychiatry Program of St. Joseph’s Healthcare Hamilton, West 5th Campus (“SJHH” or the “Hospital”) with certain privileges, including to live in the community in accommodation approved by the person in charge.
On March 5, 2025, a panel of the Board convened at the SJHH to conduct Mr. Garcia’s annual review, and to make a Disposition pursuant to s. 672.81(1) of the Criminal Code.
Mr. Garcia attended the hearing and was represented by counsel, Mr. A. Confente. A Hospital Report dated February 26, 2025, was filed as Exhibit 1 at the hearing.
The issue for the hearing is whether Mr. Garcia continues to pose a significant threat to the safety of the public and, if so, to determine the necessary and appropriate Disposition in all the circumstances.
For the reasons set out below, the Board came to the unanimous conclusion that Mr. Garcia continues to pose a significant threat to the safety of the public and the most appropriate and necessary Disposition is a continuation of the existing Disposition with the same terms and conditions.
Initial Position of the Parties
At the outset of the hearing, the parties were canvassed as to their recommendations to the Board.
Mr. O’Brien, on behalf of the Hospital, submitted Mr. Garcia represents a significant threat to the safety of the public and recommended the continuation of the existing Detention Disposition on the same terms and conditions.
Ms. Malkovich, on behalf of the Attorney General of Ontario, supported the Hospital’s recommendation.
Mr. Confente, on behalf of Mr. Garcia, conceded significant risk and requested a Conditional Discharge Disposition. He also requested that condition 4(a) “abstain absolutely from the non-medical use of drugs or any other intoxicant” be removed from the Disposition.
Index Offences
- The circumstances of the index offences are taken from the Hospital Report as follows:
(1) Assault Bodily Harm, Assault & Utter Threats (Sept 2, 2019)
“On September 2 (2019) stepped out of a Starbucks and approached two loss prevention officers from The Bay. He had previously met them while trying to steal products from The Bay. He approached them from behind, yelling “I’m going to smash your face in” and “I’m going to kick your ass.” He held up his fists. The officers then directed Mr. Garcia to back away. Mr. Garcia once again yelled, “I kill niggers.” After one officer attempted to push him away, Mr. Garcia struck him with his fists five times, causing significant injuries to the officer’s head. The second officer attempted to intervene by gaining control of Mr. Garcia, who then struck the second officer with a closed fist. A policeman noticed the assault and aided in bringing Mr. Garcia to the ground. Mr. Garcia then yelled to the loss prevention officers, “I’m going to kill you.”
(2) Breach of Court Undertaking (Oct 25, 2019)
“On September 3 (2019), Mr. Garcia was released from custody having agreed to report to the John Howard Bail Supervisor Program. On October 25 (2019), Mr. Garcia failed to report to his bail supervisor. A new report date was set for November 12 (2019) and notice of this was sent to Mr. Garcia by mail at 35 Waller Street (The Ottawa Mission). On November 12 (2019) Mr. Garcia again failed to report to the John Howard Society.”
(3) Resisting/Obstructing Peace Officer and Utter Threats (December 6, 2019)
“On December 6th (2019), Mr. Garcia was sleeping in the Carleton University library. A campus security officer asked him to leave, and he refused, yelling and swearing. He then asked the officer to have his “Sergeant” attend the scene. When he was informed a supervisor would be attending, Mr. Garcia stated, “Perfect. When he gets here, I will kill him.” He was arrested and searched, at which point officers recovered a book entitled “Chinese Martial Arts Training Manuals: A historical survey.” This item, (in addition to multiple student U-Passes), were determined to be stolen, as Mr. Garcia did not have a valid Carleton University Library card at the time he was apprehended. Mr. Garcia was escorted by the officers to the Carleton University Security office, where he continued to use profanity while uttering death threats toward the officers and refused to identify himself. Officers with the Carleton’s campus security and with the Ottawa Police Force noted that Mr. Garcia was exhibiting “bizarre behaviour” at the time of his arrest.”
Personal Background/Psychiatric History
Mr. Garcia’s personal background and psychiatric history are set out in detail in the Hospital Report filed as an exhibit at the hearing.
Briefly, Mr. Garcia is 32 years of age and was born in Kitchener-Waterloo, Ontario. Mr. Garcia has two siblings, an older brother and a younger sister. At the age of 13, Mr. Garcia’s parents divorced. They lived with their mother until her death when Mr. Garcia was 15 years of age and then lived with their father. In 2019, Mr. Garcia moved into an apartment and subsequently travelled to Ottawa, where they predominantly stayed in downtown homeless shelters, up until their December 2019 arrest.
Mr. Garcia successfully graduated high school and used cannabis from the age of 13. Mr. Garcia’s father reported that Mr. Garcia’s mental health concerns appeared to be precipitated by cannabis use. He described Mr. Garcia’s behavior as erratic, unpredictable and sometimes violent when unwell.
Mr. Garcia had two brief psychiatric hospitalizations in October of 2012. In the first, Mr. Garcia was brought in by police for bizarre behavior. Mr. Garcia had recently quit their job at Walmart claiming “interference” from the electronics at the store. They were noted to be agitated, restless and aggressive on admission and reported daily cannabis use. Mr. Garcia was diagnosed with “drug-induced psychosis.” On the second admission, Mr. Garcia was acting erratically, talking in a French accent, believing they were Jesus, and talking to someone in their head. Mr. Garcia was discharged with a diagnosis of unspecified psychosis. They refused to continue with prescribed Seroquel medication after discharge.
In September 2016, due to threatening and aggressive behaviour, Mr. Garcia was asked to leave home and moved in with their aunt. Mr. Garcia’s aunt reported that when Mr. Garcia moved in with her, their behaviour became increasingly bizarre. Mr. Garcia attended their family doctor and was prescribed risperidone. Mr. Garcia had approximately a year of stability but eventually began to “derail”.
In June 2018, after the risperidone dose was decreased, Mr. Garcia became unwell. From July to September 2018, Mr. Garcia was disorganized, tangential and expressing paranoid ideas. In October 2018, Mr. Garcia was switched to the oral antipsychotic medication, Abilify. In March 2019, Mr. Garcia expressed that they did not want to be on medication and felt it was altering their mental state.
In December 2019, following arrest on the index offences, Mr. Garcia’s fitness was assessed. It was noted that Mr. Garcia was psychotic, with several delusional beliefs and disorganized thoughts, likely with a diagnosis of Schizophrenia.
On March 27, 2020, Mr. Garcia was found NCR and Mr. Garcia’s initial hearing before the Board was held on May 14, 2020. The Board ordered Mr. Garcia detained at the Royal Ottawa Mental Health Centre until such time as they could be detained at SJHH. Mr. Garcia was transferred to SJHH on May 20, 2021.
Current Diagnosis
- Mr. Garcia is diagnosed with Schizophrenia. and Cannabis Use Disorder - moderate, in sustained remission in a controlled environment.
Evidence at the Hearing
The evidence was presented through the oral testimonies of Dr. Prat and Mr. Garcia and the evidence contained in the Hospital Report, filed as an exhibit at the hearing. Dr. Prat has been Mr. Garcia’s treating psychiatrist since November 2021.
On August 26, 2024, Mr. Garcia was discharged to reside at Emmaus Place, a transitional 24/7 supported accommodation administered through the Good Shepherd Program in Hamilton, Ontario. Mr. Garcia is currently on a waiting list for Threshold Homes in Waterloo, Ontario, which is not part of the hospital’s catchment area. It is subsidized housing with less support than at Emmaus Place.
Mr. Garcia receives follow-up from the Forensic Outpatient Treatment Team and is on both oral and injectable antipsychotic medication. Mr. Garcia has been compliant with their medication regimen and there have been no incidents of violence while living in the community.
Dr. Prat highlighted that prior to discharge, Mr. Garcia was in a highly structured environment, with ongoing monitoring and support. After Mr. Garcia’s discharge, the outpatient treatment team identified a decline in Mr. Garcia’s functioning. Dr. Prat attributed this change to more freedom and less structure, and Mr. Garcia’s residual symptoms and cognitive deficits. When asked, the doctor advised that Mr. Garcia is doing what is expected in the housing program but there was a decline considering their past goals and motivation. Dr. Prat would like to see Mr. Garcia engage in a stepwise manner in programming. When asked, the doctor acknowledged that Mr. Garcia is presently engaged in an online Certified Personal Trainer (CPT) program and has recently engaged in volunteer work.
Dr. Prat emphasized that Mr. Garcia’s mental state is stable but fragile. Their insight is sub-optimal, and they do not appreciate their cognitive deficits. Dr. Prat acknowledged that Mr. Garcia would benefit from engaging in cognitive rehabilitation tasks in the coming year.
Mr. Garcia has no insight into their behaviour at the time of the index offences. Mr. Garcia has completed several substances use programs. Dr. Prat advised that Mr. Garcia’s insight into substances has worsened. In this regard, the doctor highlighted two incidents during the reporting year. Mr. Garcia tested positive for cannabis over the summer. In this regard, Mr. Garcia explained that they were around persons using cannabis. Later, despite discussions on peer influence by the treatment team, Mr. Garcia sent a party invite saying, "bring your own weed". The doctor highlighted that each incidence demonstrates Mr. Garcia’s lack of insight into the potential negative effect of cannabis on his mental state, by surrounding themselves with persons using cannabis. Dr. Prat acknowledged that Mr. Garcia has since requested self-help books from the staff at Emmaus Place regarding substance use.
Dr. Prat advised that since their discharge to the community, Mr. Garcia has requested to use cannabis, which has been a change over many years. The doctor emphasized that cannabis use is a “bad idea” and believes such use will negatively affect Mr. Garcia’s mental state and behaviour, particularly given Mr. Garcia’s fragile mental state, and the potential for rapid decompensation. The doctor added that Mr. Garcia has a lower level of motivation, is not receptive to team feedback, and may not recognize their early symptoms leading to decompensation in their mental state. In this regard, cannabis use would worsen the situation.
Dr. Prat advised that Mr. Garcia is a significant threat to the safety of the public. The doctor stated that when Mr. Garcia becomes unwell, grandiose delusions present a risk where Mr. Garcia becomes confrontational, due to an inability to identify social cues and a misconceived need to defend themselves, as was the case during the violent index offences. The doctor highlighted that Mr. Garcia has several significant risk factors. These included the ongoing fragility of Mr. Garcia’s mental state, their current downward slope in functioning, their difficulty in appreciating the treatment team’s feedback they perceive as negative and not constructive, and the ongoing risk of substance use. When asked by Crown counsel, Dr. Prat advised that cannabis use would have significant impact on Mr. Garcia’s risk to the community, including an increase in psychotic symptoms like those present at the index offence. Dr. Prat advised Mr. Garcia often requires prompting from the treatment team and in this regard, it may not be easy to identify psychotic symptoms from cannabis use. When asked, Dr. Prat stated that a screening condition is necessary in the Disposition. The doctor elaborated that without an accompanying prohibition condition on cannabis, a screening condition on its own would not be sufficient to ensure Mr. Garcia’s mental stability and the safety of the community.
Dr. Prat believed that a Detention Disposition is the most appropriate Disposition and did not support a Conditional Discharge Disposition. The hospital needs to approve Mr. Garcia’s housing. In this regard, the doctor advised that Mr. Garcia might decide to move to another location and disengage from support. Dr. Prat suggested that requiring Mr. Garcia to reside at Emmaus Place could address relocation concerns but may limit their ability to move to more independent housing within the next year.
The doctor emphasized that the fragile nature of Mr. Garcia’s illness with the ability of symptoms to return quickly together with the recent decline in functioning requires the hospital to readmit Mr. Garcia rapidly, should he become unwell. Also, it may be necessary for Mr. Garcia to remain in hospital for an extended period to determine the cause of the decompensation. In both cases, a Detention Disposition is necessary, and the MHA would not suffice to manage the ongoing risk. When asked by counsel, Dr. Prat confirmed that should Mr. Garcia become unwell, returning voluntarily to hospital may be an issue and he does not believe Mr. Garcia would remain a voluntary patient under the MHA.
Mr. Garcia gave evidence at the hearing. When asked, they stated that at present they do not have schizophrenia. They acknowledged that they receive benefits from their medication. They stated that if they stopped taking the medication, there would be a different thought process, and they would not have the mental stability provided by the medication. They believed that part of their cognitive behaviour was a lack of social support.
When asked about decompensation, Mr. Garcia stated that if recognized by people they would take it into consideration, but they know what they like, experimentation is a big factor, and they would self-regulate. When asked about the connection between cannabis and mental health, Mr. Garcia stated that they know how to handle their drugs and have proven it with alcohol, only using it recreationally with family approximately once every three months. Mr. Garcia stated that cannabis helps them spiritually and creatively. Mr. Garcia stated that they would seek help if there was a negative effect on their mental state. When asked by Crown counsel, Mr. Garcia stated that cannabis use is a “healthy choice”.
Mr. Garcia stated that they previously played indoor soccer and planned on getting more active in the spring, through bike riding. They confirmed that they were engaged in the Certified Personal Trainer Program. Mr. Garcia stated they are willing to cooperate with the hospital regarding a proposed residency condition in the Disposition and if the doctor recommended a return to hospital, they would go.
No further evidence was presented at the hearing.
Final Submission of the Parties
Mr. O’Brien, on behalf of the Hospital maintained his initial position. He stated Mr. Garcia has only been in the community for approximately six months and it is clear from the evidence that a Conditional Discharge Disposition will not meet the needs of Mr. Garcia nor address the significant risk to the public. He submitted that the hospital is opposed to allowing cannabis use.
Ms. Malkovich, on behalf of the Attorney General of Ontario, maintained her initial position. She reiterated that Mr. Garcia only recently was discharged into the community, their mental health is fragile and there are ongoing inconsistencies in Mr. Garcia’s presentation. There is ongoing concern from the hospital as to Mr. Garcia’s judgment on the issue of cannabis, exemplified by their previous positive test and organizing a party inviting others to bring cannabis. Mr. Garcia’s desire to use cannabis shows an absence of insight into the risk it poses on their mental health and to the community. Ms. Malkovich noted that when asked Mr. Garcia stated cannabis was a healthy choice. Ms. Malkovich submitted that it is still early days, and the continuation of the existing Detention was the necessary and most appropriate Disposition.
Mr. Confente, on behalf of Mr. Garcia, submitted that a Conditional Discharge Disposition is most appropriate. He submitted that Mr. Garcia had a good year. Mr. Garcia was agreeable to continue to reside at Emmaus Place, and that such a residency clause would address any approved residency concern of the hospital. He submitted that Mr. Garcia stated they would return to hospital if requested by the hospital. Mr. Confente submitted that Mr. Garcia has been open and frank concerning cannabis use and understands the benefits and consequences of using cannabis and stated they would consume cannabis in a regulated manner. Mr. Garcia acknowledged that it may impact their mental state and if faced with a negative impact, they would be willing to seek assistance.
Analysis and Conclusion
The threshold issue for the Board to determine is whether Mr. Garcia continues to represent a significant threat to the safety of the public. Based on the testimony of Dr. Prat and Mr. Garcia, and the evidence in the Hospital Report, filed as an exhibit, the Board finds that Mr. Garcia is a significant threat to the safety of the public as set out in s. 672.5401 of the Criminal Code.
Mr. Garcia has a major mental disorder of schizophrenia, a long history of use of cannabis, and non-adherence to treatment, all of which have contributed to explosive, threatening and violent behaviour. One of Mr. Garcia’s index offences resulted in significant injuries to a loss prevention officer.
Since Mr. Garcia was discharged to the community, the forensic treatment team have observed a noticeable decline in functioning due to residual symptoms and cognitive difficulties. The fragility of Mr. Garcia’s mental state, their current downward slope in functioning, their difficulty in appreciating the treatment team’s feedback they perceive as negative and not constructive, and their limited insight and ongoing risk of cannabis use, all contribute to a significant risk to the safety of the public. As stated by Dr. Prat, whose evidence this Board accepts, should Mr. Garcia become unwell, their psychotic delusions will present a risk where they become confrontational, due to an inability to identify social cues and a misconceived need to defend themself, as was the case during the violent index offence.
Mr. Garcia has requested that the prohibition against cannabis be removed from their Disposition. Dr. Prat thinks this is a “bad idea” and does not support this request. Nor does this Board. As testified by Dr. Prat, cannabis use would have significant impact on Mr. Garcia’s risk to the community, including a potential increase in psychotic symptoms like those present at the index offence. This Board also notes Mr. Garcia’s history wherein their father reported Mr. Garcia’s mental health concerns appeared to be precipitated by cannabis use. Further, their insight into potential negative effects of cannabis use (even around others) remains absent. This was exemplified by Mr. Garcia’s positive urine screen for cannabinoids, party invitation for persons to “bring your own weed”, and their own testimony wherein they stated that cannabis use is a “healthy choice”. Given Mr. Garcia is prone to quick decompensation and the increased risk cannabis use poses on Mr. Garcia’s fragile mental state, this Board does not agree to permit cannabis use in Mr. Garcia’s Disposition.
The Board also finds that a Conditional Discharge Disposition is not appropriate at this juncture. As emphasized by Dr. Prat in his evidence, both the fragile nature of Mr. Garcia’s illness, the ability of psychotic symptoms to return quickly, and the recent decline in functioning requires the hospital to readmit Mr. Garcia rapidly, should he become unwell. In this regard, Mr. Garcia often requires prompting from the treatment team and identifying emerging symptoms at an early stage from cannabis use may be difficult. As well, it may also be necessary for Mr. Garcia to remain in hospital for an extended period to determine what caused the decompensation in their mental state to prevent an ongoing risk. In either case, the MHA would not be sufficient to address and/or manage the risk. Although Mr. Garcia stated that he would return to hospital if requested, Dr. Prat advised, whose evidence we accept, that if unwell, Mr. Garcia returning voluntarily to hospital may be an issue and, in any event, does not believe Mr. Garcia would remain a voluntary patient under the MHA. Finally, given Mr. Garcia’s required ongoing support and supervision, the hospital needs to approve accommodation in the community. Although, this could be addressed by the addition of a residency clause in Mr. Garcia’s Disposition, should Mr. Garcia want to relocate or be ready for independent housing over the next year, an early Board would need to be called.
On a positive note, Mr. Garcia has been fully compliant with their medication regimen, has required no readmissions, there have been no violent or threatening behaviour, and they enjoy living at their residence. In addition, Mr. Garcia likes the outdoors and intends on increasing their activity through bike riding in the spring. To their credit, Mr. Garcia is engaged in an online Certified Personal Trainer (CPT) program and has recently engaged in volunteer work. Finally, Mr. Garcia enjoys the support of family in the community.
For all these reasons, the Board finds that the necessary and appropriate Disposition in the circumstances is a continuation of the current Detention Disposition. This Board wishes Mr. Garcia well in moving forward on a positive trajectory while living in the community.
In reaching our decision, the Board has considered the safety of the public, Mr. Garcia’s mental condition, their reintegration into society, and their other needs.
DATED this 9th day of April 2025, at the City of Toronto, in the Toronto Region.
Mr. C. Flanagan Legal Member
Office of the Registrar Ontario Review Board