Re K. (J.), 2025 CanLII 42606

Ontario Review Board

Re: K. (J.)

ORB File No: 3591

Hearing held on: Wednesday, April 2, 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. M.D. Segal Members: Dr. K. Hand Dr. G. Kerry Ms. M. Chamberlain Mr. J. Cyr

Parties Appearing:

Accused: K. (J.) Counsel: Mr. T.R. McIver

The person in charge of hospital: Representative: Ms. M. Kraftscik

Attorney General of Ontario: Counsel: Mr. D. Chronopoulos (via Zoom)

REASONS FOR DISPOSITION

(Dated May 7, 2025)

1. On June 21, 2002, K. (J.) was found not criminally responsible on account of mental disorder on two charges of assault (x2), uttering threats (x2), assault with a weapon, mischief and possession of weapon, contrary to the Criminal Code of Canada (the “Criminal Code”).

2. Mr. K. (J.) is subject to a Disposition of the Ontario Review Board (the “Board”) dated April 2, 2024, which orders that he be detained at the Brébeuf Program for Regional Forensics of the Waypoint Centre for Mental Health Care – Provincial Forensic Programs Division, Penetanguishene (“Waypoint” or the “Hospital”), with privileges up to live in the community in 24 hour-a-day supervised accommodation approved by the person in charge.

3. On Wednesday, April 2, 2025, the Ontario Review Board convened a hearing at Waypoint pursuant to s. 672.81(1) of the Criminal Code. Mr. K. (J.) was in attendance and was represented by his counsel, Mr. McIver.

Position of the Parties

4. Ms. Kraftscik, on behalf of the Hospital, took the position that Mr. K. (J.) remained a significant threat to the safety of the public and should remain detained. The Hospital, however, was recommending that Mr. K. (J.) be transferred to the all-male unit at the Centre for Addiction and Mental Health (CAMH) and that a weapons prohibition be added to the Disposition Order. This position was supported by Ms. Armenise on behalf of the Attorney General. Mr. McIvor stated that his client was in agreement with the transfer to CAMH and was not opposed to the addition of a weapons prohibition.

Background and Index Offences:

5. Mr. K. (J.) was born in Medicine Hat, Alberta, and adopted by his parents, K. (D.) and (K.) K., at the age of three weeks. Mr. K. (J.)’s birth mother was reported to have been 17 years old, was believed to have been a dancer who abused drugs and possibly alcohol during the pregnancy. There was no background information available on Mr. K. (J.)’s biological father. Mr. K. (J.) is his adoptive family’s only child. Mrs. (K.) K. passed away on January 7, 2013.

6. Mr. K. (J.)’s parents indicated that he did not integrate very well in school when he first started. Because of his behavioural problems, he was diagnosed as having attention deficit hyperactivity disorder and started on a course of Ritalin to which he responded very well.

7. In grade nine, Mr. K. (J.) began to demonstrate marked personality changes and marked deterioration in his academic functioning; he was subsequently expelled from Laurentian/McHugh School. His classroom behaviours were characterized by his poor socialization such as his use of racial slurs or inappropriate sexual remarks without any appreciation for their meaning or impact on others.

8. Mr. K. (J.) has not been gainfully employed in the community and receives Ontario Disability Support Program benefits.

9. Mr. K. (J.)’s current psychiatric diagnoses are:

• Unspecific Psychotic Illness
• Intellectual Disability
• Autism Spectrum Disorder
• Attention Deficit Hyperactivity Disorder

10. The circumstances of the index offences are taken from last year’s Reasons for Disposition, as follows:

“Briefly, the court finding of not criminally responsible due to mental illness was based on the fact that Mr. K. (J.) was living in a group home, on both May 6, 2001 and July 2, 2001 when he was 18 years old, and he assaulted staff, threatened suicide, threw objects, threatened to kill staff, threatened to rape staff, threw a rock at a car, waved butcher knives at staff, kicked a car, spat at staff, attempted to bite staff, and had to be physically restrained. All the victims were staff at the group home.”

Evidence at Hearing:

11. The evidence at the hearing consisted of the Hospital Report dated March 3, 2025 as well as the testimony of Dr. Ismail.

12. Mr. K. (J.)’s progress since his last annual review is summarized in the Hospital Report as follows:

“Mr. K. (J.) “was exhibiting significant affective instability and behavioral dyscontrol. He would often engage in power struggles with staff and treat others in a disrespectful manner. His aggression resulted in periods of relatively brief seclusion and Mr. K. (J.) would often become preoccupied with issues related to his security levels.

Over the past year, Mr. K. (J.) has had an improvement in behavioral stability and aggression. While there are notable incidents, they are significantly decreased from previous. By my estimate, approximately half of the behavioral destabilizations were in the context of unsuccessful medication changes.

Of note, on January 30, 2025, Mr. K. (J.) was assaulted by a co-patient while at the gym. He was struck on his head approximately four to five times, however it was noted the blows were not hard. Mr. K. (J.) did not retaliate, and accepted staff’s assistance returning to the unit for a medical assessment. No long-term effects were noted. When later seen by his psychiatrist, Mr. K. (J.) “expressed pity towards the individual, stating, ‘He was not fine that day’”

13. Ms. Newman called Dr. Kaggwa to give evidence on behalf of the Hospital. Dr. Kaggwa is a Psychiatric Fellow working under the supervision of Dr. Ismail. Has consulted with Dr. Ismail regarding Mr. K. (J.) and attended the pre-conference hearing. Dr. Kaggwa has read the Hospital Report and is in agreement with the risk assessment and the recommendations.

14. Dr. Kaggwa noted that there had been no marked changes in Mr. K. (J.) since the Hospital Report was authored. Mr. K. (J.) has demonstrated appropriate behaviour and has been compliant with his medications and treatment. Mr. K. (J.) has not had any seclusions since October 2024. In addition, prior to October when Mr. K. (J.) did have seclusions, they typically lasted two days or less.

15. The Hospital is now recommending that Mr. K. (J.) be transferred to the all-male unit at CAMH. This will allow him to live in a less secure setting and progress towards community living.

16. Mr. K. (J.) has historically engaged in sexually inappropriate behaviour. It is for this reason that the Hospital is requesting the transfer to CAMH; the only less secure forensic hospital with an all male unit. CAMH also has a clinic that specializes in sexually inappropriate behaviours. This will allow Mr. K. (J.) to benefit from assessments and programing to assist him in limiting these behaviours. CAMH also has behavioural therapists that could assist Mr. K. (J.) with programming as well as assist with his progression from detention in Hospital to living in the community.

17. Dr. Kaggwa reviewed the response from CAMH to the Hospital’s request for transfer which postulated that a transfer would not offer a significant benefit to Mr. K. (J.)’s rehabilitation. Dr. Kaggwa disagreed with this response. He noted that the Hospital was seeing a great improvement in Mr. K. (J.) and opined that the best next step for him was a less secure setting. He stated that it is hard to predict how a new environment will impact Mr. K. (J.) and suggested that he could actually do better in a new environment.

18. Currently, Mr. K. (J.) is residing on the Awenda unit at Waypoint. While there is extra staffing available, it is not required to manage Mr. K. (J.)’s behaviours. Mr. K. (J.) is not involved in aggressive incidents. When he has had behavioural issues that require redirection, staff are able to direct him to his room and he goes without issue. Dr. Kaggwa felt that the staffing levels at CAMH would be sufficient to manage Mr. K. (J.).

19. The Hospital also agreed with a panel member’s recommendation for the addition of a condition restricting weapons to Mr. K. (J.)’s Disposition. Dr. Kaggwa stated that the reason for this addition was based on Mr. K. (J.)’s offending history which included multiple charges for assault with a weapon and possession of a dangerous weapon in 2001 and 2012. In 2019, Mr. K. (J.) stated that if he had had access to knives, he would have used them if he had been forced to return to a prior placement. Dr. Kaggwa agreed that Mr. K. (J.) had not had issues with weapons for a number of years but noted that this was in the controlled environment of the Hospital where his access would have been limited. In a less secure placement such as CAMH, this could become an issue again and it would be appropriate for the condition to be added at this time.

20. Counsel for Mr. K. (J.) asked the doctor if he felt that Mr. K. (J.) had the potential to become institutionalized. Dr. Kaggwa agreed that this was a possibility which was another reason for the recommendation to transfer him to CAMH.

Final Submissions:

21. In closing submissions, Ms. Kraftscik stated that the Hospital supports a transfer to CAMH. Mr. K. (J.) has shown improvement during the last year and he is now ready to move to a less secure hospital. She noted that Mr. K. (J.) has not had much access to weapons in his current placement. Given the recommendation to transfer to a less secure facility as well as the fact that he remains impulsive, the Hospital supports the recommendation for the addition of a clause prohibiting weapons.

22. Mr. McIvor noted that his client was using his unstructured time well and was learning and improving. He submitted that Mr. K. (J.) was ready to move to a less secure setting so that he could begin the transition to DSO housing in the community. Mr. K. (J.) was not opposed to a weapons prohibition being added to his Disposition Order.

Findings of the Board:

23. The Board unanimously finds that Mr. K. (J.) continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the position of the parties and accepted the uncontroverted evidence of Dr. Kaggwa that Mr. K. (J.) continues to pose a significant threat. The Board also relies on the Hospital Report, which notes the following:

“Mr. K. (J.) continues to pose a significant risk to the safety of the public due to his history of violent and aggressive behavior, mood lability, poor impulse control, and limited insight. Although he has demonstrated periods of improvement, his frequent behavioral incidents necessitate the need for continued detention in a secure forensic program. However, he has not acted out using physical violence and has been redirectable during various incidents of verbal aggression. Therefore, he does not require the intensity of care and supervision under a high secure setting. A medium secure facility is the least restrictive and onerous option, providing him with more opportunities to transition into the community. Given his history of arousal to sexual violence and fantasies involving rape and mutilation, it is recommended that he be referred to an all-male unit. This environment would mitigate the risk of him acting on these inappropriate impulses and provide a safer setting for both him and his peers. Additionally, it would allow for more focused therapeutic interventions to address his ongoing behavior concerns without the added risk of interactions with female patients. “

24. The Board, therefore, accepts that absent an ORB Disposition, Mr. K. (J.) would act out physically and sexually, causing serious physical or psychological harm to members of the public.

25. The Board carefully considered the Hospital’s Rule 13 request to transfer Mr. K. (J.) to the all-male unit at CAMH as well as the response from that Hospital. The Board agreed that Mr. K. (J.) continued to have behavioural issues in the last year but found that this has improved in the last half of the reporting period. The Board feels that a transfer to CAMH would be appropriate at this time as it will allow Mr. K. (J.) to have access to the sexual behaviours clinic as well as behavioural therapists.

26. Therefore, the Board unanimously determines that the necessary and appropriate Disposition required to manage the threat Mr. K. (J.) poses to the safety of the public while still meeting their needs, is a transfer to CAMH with the following terms and conditions:

• to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes;
• hospital grounds privileges, escorted by staff;
• to enter the community of Toronto, escorted by staff;
• passes for day or overnight up to seven days, to enter the community anywhere in Ontario, expressly for the purpose of transitioning into the community, escorted by staff; and
• to live in the community in 24 hour-a-day supervised accommodation approved by the person in charge;
• abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant;
• submit samples of his urine and/or breath to the person in charge of the Centre for Addiction and Mental Health, or his or her designate for the purpose of analyzing whether the accused has ingested alcohol, drugs or any other intoxicant;
• refrain from having in his possession any firearm, ammunition or other offensive weapon, or being in the company of any person possessing a firearm other than a peace officer; and
• while living in the community, report to the person in charge of the Centre for Addiction and Mental Health, or his or her designate, not less than once every two weeks.

27. As it will most likely take awhile before a bed is available for Mr. K. (J.) at CAMH, authority should vest in the Person in Charge at Waypoint to detain Mr. K. (J.) pending his transfer.

28. In making this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Kaggwa and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, Mr. K. (J.)’s mental condition, their reintegration into society and their other needs.

DATED this 7th day of May 2025, at the City of Toronto, in the Toronto Region.

Ms. M. Chamberlain Legal Member Office of the Registrar Ontario Review Board