Re Mark W. Waweru, 2025 CanLII 33830

Ontario Review Board

Re: Mark W. Waweru

ORB File No: 7056

Hearing held on: Tuesday, March 4, 2025

Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas ON

Pursuant to: Sections 672.81(1) and 672.81(2.1) of the Criminal Code

Before:

Alternate Chairperson: Mr. J. Weinstein

Members: Dr. R. D. Chandrasena

Dr. B. Sheppard

Ms. K. Tomaszewski

Ms. C. Plyley

Parties Appearing:

Accused: Mark W. Waweru

Counsel: Mr. S.F. Gehl

The person in charge of hospital: Counsel: Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Mr. D. Rows

REASONS FOR DECISION & DISPOSITION

(Dated April 11, 2025)

Introduction

1. On November 17, 2016, Mark Waweru was found not criminally responsible on account of mental disorder on charges of robbery (x2) and uttering a threat to cause death or bodily harm, contrary to the Criminal Code of Canada (the "Criminal Code").

2. Mr. Waweru is currently subject to a disposition of the Ontario Review Board (the “Board”) dated May 22, 2024, detaining him at the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London (the “hospital” or “Southwest”), with privileges up to and including the ability to live in the community of Southwestern Ontario in accommodation approved by the person in charge.

3. On December 2, 2024, the hospital notified the Board pursuant to s. 672.56(2) of the Criminal Code of a significant restriction of Mr. Waweru’s liberty exceeding seven days (the “ROL”).

4. The Hospital’s letter stated that:

Mr. Mark Waweru has returned to hospital via police on November 7, 2024, following an Absent Without Leave (AWOL) on November 1, 2024. Mr. Waweru’s current disposition is a Detention Disposition dated May 22, 2024.

Until November 1, 2024, Mr. Waweru continued to reside as a patient on the Rehabilitation Unit (B1) at the Southwest Centre for Forensic Mental Health Care. While a patient on this unit, Mr. Waweru was utilizing full hospital and grounds privileges, indirectly supervised (IS) community daily passes up to 6 hours daily for both structured and unstructured activities in the local community, as well as overnight passes to Middlesex County and was permitted to utilize day pass to Southern Ontario. While using an IS pass on November 1, 2024, Mr. Waweru did not return from his pass as planned. A code yellow was initiated for a missing patient. St. Thomas Police Service were contacted to inform them of Mr. Waweru’s abscondment and to request their assistance in attempting to locate and return him to the hospital. Mr. Waweru was considered absent without leave (AWOL).

Several days passed with no contact from Mr. Waweru. He was eventually returned by police through their investigative efforts on November 7, 2024. Mr. Waweru was late receiving his long-acting injection as it was due when he was AWOL on November 4, 2024. He admitted to using substances (cocaine, alcohol and cannabis). His privileges/passes were placed on hold (level 0- to remain on the unit). He has since achieved level one pass level (30 minutes three times per day in hospital) and subsequently level two (one hour three times per day in hospital).

5. On March 4, 2025, the Board convened to review Mr. Waweru’s restriction of liberty (“ROL”) pursuant to s. 672.81(2.1) of the Criminal Code. The Board also conducted an annual review of Mr. Waweru’s disposition. Mr. Waweru was present for the hearing and was represented by counsel throughout the proceedings.

6. The issues to be determined are whether the ROL was necessary and appropriate and represented the least onerous and least restrictive measure at the time it was imposed and up to the time it ended; and whether Mr. Waweru poses a significant threat to the safety of the public, and if so, the necessary and appropriate disposition to manage that risk, having regard to the criteria set out in s. 672.54 of the Criminal Code.

7. With respect to the ROL, at the commencement of the hearing, counsel for the Hospital submitted that the restriction of Mr. Waweru’s liberty was necessary and appropriate and represented the least onerous and least restrictive measure at the time it was imposed and continued to be so at the time it ended. Counsel for the Attorney General and counsel for Mr. Waweru agreed with the Hospital’s submission. All parties maintained their respective positions on the ROL in closing submissions.

8. With respect to the issues of significant threat and the disposition at the commencement of the hearing, counsel for the Hospital submitted that Mr. Waweru remains a significant threat to the safety of the public and there should be no change to his current detention disposition except to increase the number of 7-day passes from four, to six, passes per year. Counsel for the Attorney General and counsel for Mr. Waweru agreed with the Hospital's recommendation. All parties maintained these respective positions in closing submissions.

9. For the reasons set out below, the Board finds that the restriction of Mr. Waweru’s liberty on November 7, 2024 was significant and was necessary and appropriate and represented the least onerous and least restrictive measure at the time it was imposed, and continued to be so until the time it ended on January 28, 2025.

10. For the reasons set out below, the Board finds that Mr. Waweru continues to represent a significant threat to the safety of the public and there should be no change to his current detention disposition except to increase the number of 7-day passes from four to six passes per year.

11. At the outset of the hearing, the parties informed the Board that the Rule 13 request had been withdrawn.

Evidence at the Hearing

12. The Board received documentary evidence in the form of a Hospital Report dated February 20, 2025, marked as Exhibit 1; and R13 Response dated March 3, 2025, marked as Exhibit 2. Given that the Rule 13 request had been withdrawn, the Board did not consider the material contained in Exhibit 2. The Board also heard viva voce testimony from Dr. A. Ardani, Mr. Waweru’s treating psychiatrist.

Index Offences

13. The circumstances of the index offence as taken from the Board’s Reasons for Disposition for last year are as follows:

“On Saturday, February 06, 2016, at approximately, 1:30pm the victims WEN and LI were in their apartment. The victim’s heard a knock at the door and told whoever was there to enter. The accused then entered the apartment standing with his fist clenched as if to greet or "fist pump" the victims. The accused then said "I'm gonna rob you. Gimme your money. I have a gun". The accused then reached into his left breast pocket as if he were reaching for a gun. Victim WEN told the accused that he didn't have any money and opened his wallet to show the accused. The accused then took the victim's BMC debit card and left the apartment without further incident.

The accused then attended the TTC bus depot, located on the York University Property and got on bus #8195. The accused pointed two fingers of his right hand at the driver of the bus (Witness #1) and said "you are being robbed". The witness believed that the accused was joking, and asked him to pay for the fare. The accused told the driver that another passenger would pay for him as he went to the rear of the bus. The accused then turned to another passenger and said "you are being robbed. The accused then got up and left bus #8195.

The accused then got on TTC bus #8442. The accused pointed two fingers of his right hand at the driver of the bus (witness #2) and again said "I'm robbing you, approximately three times. The accused walked to the rear of the bus and sat beside Victim #3, GJOLA. The accused then looked at the victim and said "talk to me Jason" several times. The victim ignored the accused at which point the accused said "Talk to me or I'll rape you". The accused then lifted up his shirt and showed the victim his belly button. The victim requested that the accused move several times so that she could go to a different seat, however he refused to move his legs and his bag. The accused moved his legs and the victim was able to go to the front of the bus where she told the driver what had happened.

Police attended and were advised that the accused was still on Bus #8442. The accused was arrested and transported to 31 Division where he was held pending a Show Cause hearing.”

14. Mr. Waweru had no previous convictions prior to the commission of the index offences.

15. Mr. Waweru’s current diagnoses include schizophrenia and substance use disorder.

16. Mr. Waweru has significant musical talent and is interested in pursuing additional education and a career in this field.

17. Mr. Waweru’s personal history and background are reviewed in detail in the Hospital Report. Those details need not be repeated. The following short summary is excerpted from last year’s Reasons for Disposition:

Mr. Waweru’s parents are from Kenya, and he was born while they were residing in London, England. After moving to the United States for a short period of time when Mr. Waweru was an infant, the family moved to Niagara Falls when Mr. Waweru was two years old, and he grew up in the Niagara Falls area. He is the youngest of five children. His parents separated when he was five years old, and his father returned to Kenya. Mr. Waweru lived with his mother in Ontario.

Mr. Waweru graduated from high school and went directly to university studies. During his third year he returned to reside in Kenya for a period of time. He has since made efforts to continue his university education by way of online courses. Mr. Waweru has a limited history of employment. He has a history of substance use commencing when he was in university.

Mr. Waweru’s first encounter with mental health services occurred while he was in Kenya in 2015. His oldest brother has been diagnosed with suffering from schizophrenia.

Testimony of Dr. Ardani

ROL

18. Dr. Ardani agreed with the following description of the circumstances which led to the ROL, taken from page 177 of the Hospital Report:

“On November 1, 2024, Mr. Waweru left on a six-hour pass to Tim Hortons and the public library. As he did not return at the expected time, a Code Yellow unauthorized leave of absence (ULOA) was initiated. Mr. Waweru remained ULOA until he was picked up by Police on November 7, 2024 and returned to hospital. While absent, Mr. Waweru reported he had been staying with several different friends and engaged in drinking alcohol and using substances (cocaine and marijuana). A urine sample collected upon return was positive for both cocaine and marijuana.

Mr. Waweru said his ULOA, and the subsequent relapse was not pre-planned. He reported receiving an email from a previous intimate partner while in the community and decided to meet with her. He said he was triggered by associating with the intimate partner who provided him with substances during their intimate interaction. He said that after the substance use, he realized the negative impact of relapse on his progress, however, he continued to use substances until he was brought back to hospital by police.”

19. Dr. Ardani told the Board that Mr. Waweru gradually increased his pass levels, but lost privileges following several significant incidents. These incidents are described in the Hospital Report.

20. A urine drug screen tested positive for alcohol on December 23; and positive for methamphetamine on January 7, 2025. On December 18, 2024, due to several patients on B1 testing positive for illicit substances, a unit search was conducted. While searching Mr. Waweru’s room, contraband was discovered in his room, including two vapes, a google Chromecast (streaming media adapter that allows users to play online content such as videos and music on a digital television), two unapproved disks containing mature content (pornography), and one mouthwash bottle containing a small amount of yellowish/brown liquid. Mr. Waweru denied knowing what the liquid was.

21. Mr. Waweru eventually regained indirectly supervised passes to the community on January 28, 2025.

Significant Threat and Disposition

22. Dr. Ardani testified that Mr. Waweru did not seem to have decompensated during his AWOL, but Mr. Waweru knew that he had a medication injection scheduled during that time frame, and decided to remain AWOL nonetheless.

23. In Dr. Ardani’s opinion, Mr. Waweru’s risk of decompensation increases when he uses substances, particularly if he uses substances and is not adherent with his medications. Dr. Ardani pointed out that prior to the index offences, Mr. Waweru was not taking medications and was using substances. In 2017, suboptimal doses of medication resulted in residual symptoms, and in 2020 cannabis use triggered symptoms. Dr. Ardani was not able to predict how quickly substance use would impact Mr. Waweru’s mental stability.

24. Mr. Waweru can describe his need for substance use programming, but his actions are not always consistent with this. He struggles to complete the tasks needed to progress when he is frustrated. To his credit he has registered for a residential treatment program at Westover beginning on March 24, 2025, and has been attending sessions with Westover staff on Fridays to continue to qualify. He attends Celebrate Recovery.

25. On the other hand, Mr. Waweru did not complete the Thames Valley relapse program and did not attend the one-to-one programing offered to him, discontinuing it once he agreed to go to the residential treatment program.

26. Dr. Ardani confirmed Mr. Waweru’s musical abilities and indicated that Mr. Waweru is currently completing a course related to his musical interests. In the long run, this education will be a protective factor for Mr. Waweru because it can lead to better jobs in this field once Mr. Waweru has his certification.

27. In the short term, however, school is stressful for Mr. Waweru. Dr. Ardani noted that Mr. Waweru had his first episode of psychosis while dealing with the stressors of post-secondary education.

28. In Dr. Ardani’s opinion, Mr. Waweru requires the support of a supervised setting to be successful in transitioning to living in the community. He has many stressors to deal with. His financial state is difficult, and his debt is limiting his housing options in the community. Mr. Waweru has underdeveloped insight, has difficulty organizing and prioritizing, and has recently relapsed into the use of substances. In addition, Mr. Waweru finds the continued jurisdiction of the ORB stressful. He has a history of being unsuccessful with independent living in the community, and he was unable to meet the expectations of the treatment team in his last tenure in the community.

29. An application has been made to Clarke Centre, in London. This accommodation has 24/7 supervision, and Mr. Waweru would not have to pay rent. Dr. Ardani indicated that while he was recommending that Mr. Waweru be placed in supervised accommodation, he did not believe it was necessary for the Disposition to specify that the accommodation be supervised.

30. In Dr. Ardani’s opinion the Hospital needs to be able to approve Mr. Waweru’s accommodation, and given the recent AWOL, needs the Warrant of Committal to be able to return Mr. Waweru to the Hospital promptly.

31. To his credit, Mr. Waweru has initiated obtaining help with financial planning.

32. The Hospital is recommending an increase in the number of 7-day passes to expand Mr. Waweru’s personal support in the community, particularly with family and friends. Mr. Waweru needs to reintegrate into the community and the treatment team needs to be able to assess his ability to remain abstinent.

33. Dr. Ardani stressed that Mr. Waweru has great musical talent and encouraged Mr. Waweru to develop this talent. If Mr. Waweru is able to get some music into production, these 7-day passes will enable him to travel to studios to produce the music within the studio’s timeframe.

34. Dr. Ardani expressed optimism for Mr. Waweru in the upcoming year.

Analysis and Conclusion

ROL

35. The analytical framework established by Campbell (Re), 2018 ONCA requires the Board to consider the liberty norm and the liberty status of an accused on a restriction. The liberty norm and liberty status for each restriction must be examined to determine the significance of the increase (if any) on the restriction of an accused’s liberty caused by the restriction. In determining the liberty norm of an accused at the outset of each period of restriction, the Board must “take a contextual approach, one that considers the individual’s pattern of liberty in the recent past.” ((Re) Campbell, para. 66). The liberty she/he was actually experiencing (rather than what she/he was entitled to) at the time of the increase is what the Board is to consider, and that “liberty must be of sufficient duration to have become, objectively speaking, the NCR accused’s norm” ((Re) Campbell, para. 65).

36. The test to be applied to significant increases in the restriction of liberty is the same as is required for dispositions. It must be determined if the significant increase is necessary and appropriate to protect the safety of the public.

37. Prior to his abscondment on November 1, 2024, Mr. Waweru was able to enter the community indirectly supervised. Upon his return to the Hospital by the police on November 7, 2024, Mr. Waweru’s privileges were held. The Board finds that there was a significant restriction of Mr. Waweru’s liberty status from November 7, 2024, until January 28, 2025 when he regained indirectly supervised privileges in the community.

38. During his unauthorized absence Mr. Waweru engaged in significant substance use and failed to attend for his LAI medication. Use of substances and noncompliance with medications are salient risk factors for Mr. Waweru.

39. Once he was returned to the Hospital, Mr. Waweru regained privileges only to lose them again, as noted above, due to substance use, and contraband in his room. Mr. Waweru tested positive for cocaine use on January 7, 2025, but progressed quickly to regain his indirectly supervised access to the community by January 28, 2025.

40. For these reasons, the Board finds that the ROL was necessary and appropriate and the least onerous and least restrictive measure available both at the beginning of the ROL and throughout the duration of the ROL.

Significant Threat and Disposition

41. The paramount concern of the Ontario Review Board is the safety of the public. The threshold for issuing a disposition other than an absolute discharge is a positive finding by the panel that the individual represents a significant threat to the safety of the public. Significant threat is defined in the Criminal Code as follows:

“For the purposes of s. 672.54 a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public - including any victim or witness to the offence, or any person under the age of 18 years - resulting from conduct that is criminal in nature but not necessarily violent”

42. Both at the outset of the hearing and in closing submissions, all counsel conceded that there would be no challenge to a finding that Mr. Waweru continues to represent a significant threat as defined in the Criminal Code. This joint submission is a factor for the Board to consider in its decision-making process. However, the Board is also charged with the responsibility of determining that the evidence at the hearing supports the Board’s independent finding that the accused continues to represent a significant threat.

43. Mr. Waweru has a major mental illness, schizophrenia. Although he has not experienced any hallucinations or delusions while on medication, when ill, he presented with marked thought disorder and disorganization, grandiose and paranoid delusional thinking, mood instability, and behavioural disinhibition. Mr. Waweru continues to experience ongoing issues related to his executive functioning, including organization, planning, and following through to task completion. This would likely negatively impact his ability to independently arrange for his medication injection or attend mental-health and addiction- related programming. While he says he needs medication, he absconded from the Hospital in November and remained absent when he knew he was scheduled to receive his LAI medication. His long-term adherence to medication is yet to be determined. Mr. Waweru has experienced relapse into substance use this year, and he has not yet completed an addiction treatment program. Substance use remains a significant risk factor. The Board is unanimous in finding that when all of the factors listed in the Hospital Report and in the evidence are taken into account, Mr. Waweru continues to represent a significant threat to the safety of the public as defined above.

44. The parties agree that a detention disposition with the increase in 7-day passes recommended by the Hospital is the necessary and appropriate disposition. The Board agrees with this position.

45. The Board adopts Dr. Ardani’s evidence and the evidence in the Hospital Report that the Hospital needs to be able to approve Mr. Waweru’s accommodation. As recently as the 2023-2024 reporting period, Mr. Waweru was subject to a conditional discharge. During that time, Mr. Waweru was experiencing financial difficulties, he was disorganized, did not have a stable living environment, was using substances, and was late for his LAI medication. The treatment team had great difficulty locating which city he was residing in when attempting to provide him with his LAI medication.

46. Mr. Waweru requires the support of supervised accommodation to support him in a successful transition to the community.

47. The Hospital needs to be able to return Mr. Waweru to the Hospital expeditiously if necessary. As demonstrated during Mr. Waweru’s abscondment in November 2024, Mr. Waweru did not return to the Hospital voluntarily, and the Hospital required the assistance of the police under the Warrant of Committal to bring him back to the hospital. At that time, Mr. Waweru was not demonstrating symptoms of decompensation and would not likely have been certifiable under the Mental Health Act. In addition, Mr. Waweru has not developed the ability to recognize the symptoms of decompensation and has no personal supports to help him.

48. The Board finds that a conditional discharge is not realistic at this time, and adopts the reasons set out on page 194 of the Hospital Report:

“Mr. Waweru is not being considered for a conditional discharge at this time, as he could not be safely managed under the provisions of the Mental Health Act of Ontario. Over the course of the reviewing year, Mr. Waweru has demonstrated a lack of appreciation for the terms of his Disposition, with substance use; and the supervision of the forensic mental health system. This has resulted in him failing to follow the guidelines of his passes, leading to an abscondment and being returned to the hospital by law enforcement. Moreover, he continues to struggle to form a trusting relationship with his treatment team. He does not seek out, or value, their support. This had previously jeopardized the ability of the Outreach team to supervise and monitor him while he resided in the community.”

49. The Board is unanimous in finding that in order to fulfill the paramount concern of protecting the safety of the public and managing the successful reintegration of Mr. Waweru into the community, the necessary and appropriate disposition is a detention order with the conditions as recommended by the Hospital. The Board agrees that supervised accommodation is not necessary at this time and would unduly restrict the hospital’s ability to reintegrate Mr. Waweru into the community.

50. The Board wishes to commend Mr. Waweru on his decision to attend the Westover residential treatment program, and for his determination to pursue his musical career. The Board wishes Mr. Waweru every success in his transition to the community in the upcoming year.

DATED this 11^th^ day of April 2025, at the City of Toronto, in the Region of Toronto.

Ms. K. Tomaszewski

Legal Member

_________________________

Office of the Registrar

Ontario Review Board