Re S. (N.), 2025 CanLII 42620

Ontario Review Board

Re: S. (N.)

ORB File No: 8038

Hearing held on: Tuesday, April 8, 2025

Place of hearing: Royal Ottawa Mental Health Centre by Zoom videoconference

Pursuant to: Section 672.81(2.1) of the Criminal Code

Before:

Alternate Chairperson: Ms. L. Banks Members: Dr. R. W. Hill Dr. J. Cheston Ms. K. Tomaszewski Ms. K. Brisson

Parties Appearing:

Accused: Ms. S. (N.) Counsel: Ms. L. Konarowski

The person in charge of hospital: Representative: Dr. A. Alabi

Attorney General of Ontario: Counsel: Ms. M. Dufort

REASONS FOR DECISION

(Dated May 8, 2025)

Introduction

1. On March 17, 2022, Ms. S. (N.) was found not criminally responsible on account of mental disorder, on charges of abduction of a person under 14, assault with a weapon, possession of weapon for dangerous purpose, assault, and criminal harassment, all contrary to the Criminal Code of Canada (“Criminal Code”).

2. Ms. S. (N.) is subject to the terms of a Decision and Disposition of the Ontario Review Board (the “Board”), dated November 18, 2024, which ordered that she be detained at the Secure Forensic Unit, Royal Ottawa Mental Health Centre (“Royal Ottawa” or the “hospital”).

3. Pursuant to s. 672.56(2) of the Criminal Code, on March 5, 2025, the hospital advised the Board that “on February 10th, 2025, the above-mentioned individual was transferred from our Secure Rehabilitation Unit to our Forensic Assessment Unit with resulting loss of privileges”.

4. On April 8, 2025, a panel of the ORB convened a hearing via Zoom videoconference at the hospital to review the period of increased restrictions on Ms. S. (N.)’s liberty during the Restriction of Liberty (“ROL”) which commenced on February 10, 2025, and continued until March 31, 2025, pursuant to s. 672.81(2.1) of the Criminal Code.

5. Ms. S. (N.) was present at the hearing and was represented by her counsel, Ms. Konarowski.

6. The Board considered whether the restriction on Ms. S. (N.)’s liberties was necessary and appropriate as well as the least restrictive and least onerous intervention available to the hospital, both initially and throughout its duration.

7. For the reasons which follow, the Board found that there was a significant restriction on the liberties of Ms. S. (N.), and that this was necessary and appropriate as well as the least restrictive and least onerous intervention in the circumstances, both initially and throughout its duration.

Position of the Parties

8. At the outset of the hearing, the parties were canvassed as to their recommendations to the Board. Dr. Alabi submitted on behalf of the hospital that the restriction of Ms. S. (N.)’s liberty, which commenced on February 10, 2025, and continued until March 31, 2025, was necessary and appropriate and the least onerous and least restrictive intervention available to the hospital in the circumstances. The hospital also requested that the Disposition be amended to add the privilege of attending a residential treatment facility within the Province of Ontario, as approved by the person in charge of the hospital.

9. Counsel for the Attorney-General supported the hospital’s recommendations with respect to both the ROL and the amendment of the Disposition.

10. Counsel for Ms. S. (N.) conceded for the purposes of this hearing that Ms. S. (N.) represents a significant risk to the safety of the public and that the necessary and appropriate Disposition continues to be the current Detention Disposition, with the addition of the privilege of attending a residential treatment facility as recommended by the hospital. With respect to the ROL, Ms. S. (N.)’ counsel supported the hospital’s position with respect to the initial restriction of liberty on February 10, 2025, but did not agree that the ROL continued to be necessary and appropriate, and the least onerous and least restrictive intervention, for the duration of the restriction until March 31, 2025.

11. During closing submissions, counsel for Ms. S. (N.) submitted that the ROL was necessary and appropriate until March 11, 2025, but was not necessary and appropriate, and was not the least onerous and least restrictive intervention available to the hospital from March 11, 2025, until March 31, 2025.

12. The panel had before it a joint submission with respect to the amendment of the Disposition, and the restriction of liberty beginning on February 10, 2025, up to March 11, 2025, but disputed from March 11, 2025, to March 31, 2025.

13. All parties maintained their positions in closing submissions and all confirmed that there was no request to further review the terms of Ms. S. (N.)’s existing Disposition.

Index Offences

14. The circumstances of the index offences are summarized from the Board’s Reasons for Decision and Disposition dated November 18, 2024:

“In May 2021, S. (N.) lived with her three children in the rural area of Shawville, Quebec. The victim, M. A., lived in the City of Ottawa. The two women had never met and were strangers to each other.

M.A. gave birth to her son about a week before the offence date of Mother’s Day, Sunday, May 9, 2021.

On Thursday, May 6, 2021, Ms. S. (N.) messaged M.A. on social media through a local chat group set up for people looking to give away free items. Ms. S. (N.) sent M.A. a message of congratulation on her newborn son. She offered M.A. a box of clothing and a $100 gift certificate. M.A. was happy about this. She responded providing Ms. S. (N.) with her Ottawa address.

On Friday, May 7, 2021, Ms. S. (N.) attended M.A.’s home. She dropped off the clothing items and gift certificate. She told M.A. that she was pregnant and was going to have a caesarean section within a week. She added this was not her first child. She gave M.A. tips on recovery. She seemed very sincere. At that point, M.A. had no concerns.

Later, Ms. S. (N.) sent M.A. another message. She also claimed that she worked as a social worker for the court and had put M.A.’s name in for a Mother’s Day basket, to include delivery of a hot breakfast. M.A. was thankful and agreed to receive delivery on May 9, Mother’s Day.

On Sunday, May 9, 2021, Ms. S. (N.) sent several messages: she wished M.A. a Happy Mother’s Day. She added that the delivery company had messed up.

Ms. S. (N.) then attended M.A.’s residence. However, she pretended to be the delivery person. She wore a black hoody with a black mask covering her face. Knocking on the door, she had a McDonald’s bag in hand. Before leaving, she said there had been a mix-up and that she had brought the wrong breakfast.

M.A. started to feel something was not right. She messaged Ms. S. (N.) about the delivery. Ms. S. (N.) sent back a series of texts. By then, M.A. had recognized the delivery person to be Ms. S. (N.). M.A. was left confused. Over the next few hours, M.A. heard some light knocking at the door. However, when she looked, she could not see anyone.

At 1:31 p.m., Ms. S. (N.) sent M.A. a message to say she was five minutes away and was bringing breakfast. She confirmed with M.A. that the only persons present were M.A., her nine-year-old daughter and newborn son. About ten minutes later, Ms. S. (N.) knocked at M.A.’s door.

M.A. opened the door. Ms. S. (N.) walked in. She sprayed M.A. in the face and all over her body with bear spray. Ms. S. (N.) was yelling nonsensical things at M.A., asking “why did you do that?” M.A. had no idea what Ms. S. (N.) was saying.

M.A. was confused. She had a hard time seeing after being bear sprayed. She felt terrified. Her infant son was in the same room not far away.

Ms. S. (N.) then said, “I need to take him.” M.A. was panicking, her eyes were burning, and she could not see. She tried but was unable to get Ms. S. (N.) out of the house. Ms. S. (N.) was pushing and hitting M.A. She noticed Ms. S. (N.) had something in her hand, along with keys. She believed it was a knife and that Ms. S. (N.) was going to stab her.

Ms. S. (N.) got to the baby. She picked him up and was holding him. M.A. feared for her life and the life of her children. She knew she needed help. She managed to run out the front door and start screaming for people to help and that Ms. S. (N.) was taking her baby. This alerted neighbors who came quickly. Ms. S. (N.) ran out of the house with the infant in hand.

A neighbor, Mr. E., gave chase. He managed to stop Ms. S. (N.). Ms. S. (N.) put the baby down on the ground and told Mr. E. to just let her go. Mr. E. held on to Ms. S. (N.). He told her he was holding her for the police. She punched Mr. E. in the face and was repeatedly hitting and kicking him. Despite this, Mr. E. was able to hold on to Ms. S. (N.) until police arrived. The baby was recovered.

Once outside the house, M.A. remembered that her daughter, who is mute, was still upstairs in her room. She ran back inside and found her daughter upstairs with very red puffy eyes, the result of bear spray. Witnesses later reported that in the days leading up to the offence,

Ms. S. (N.) had been walking around M.A.’s home, both at the front and back, looking into windows.

Soon after the arrest, police officers interviewed Ms. S. (N.). She claimed to have no memory of the events.

In March 2022, Forensic Psychiatrist, Dr. Brad Booth, interviewed Ms. S. (N.) at the jail. By then, she was able to provide more details.

In her account to Dr. Booth, Ms. S. (N.) spoke of significant difficulties in the time leading up to the index offences. She described a complex set of difficult relationships with her former intimate partners. She reported having become pregnant and then terminating the pregnancy in December 2020 but without telling anyone about the termination. She had left those who knew her with the false impression that she was still pregnant and due to deliver a child in April 2021.

Ms. S. (N.) also described a course of her own drug abuse involving cocaine from early May 2021. She related details of the May 9 index offences to Dr. Booth.”

Background

15. As the Royal Ottawa Hospital Report dated October 1, 2024, as well as the ROL Hospital Report dated April 7, 2025 (“ROL Report”), were made Exhibits at the hearing, it is not necessary to reproduce the information contained therein; however, we note the following:

“Ms. S. (N.) has a complex history of unstable overlapping relationships. She was the victim of intimate partner violence. Many of her intimate relations have been casual or of limited duration. Ms. S. (N.) has at times become dependent on her partners early on in a relationship. Ms. S. (N.) worked consistently at temporary, short-term employment for most of her life. Her employment has been interrupted by pregnancy and maternity leaves. In 2019 she wrote fraudulent cheques to herself during the first week of a new job in order to fund her cocaine use. She has given inconsistent account of her employment in the last one year and it cannot be said with any certainty that she has not been terminated from her employments.”

“Ms. S. (N.) developed a pattern of problematic cocaine use in her mid-twenties, which peaked in 2019.”

“Ms. S. (N.) has repeatedly breached conditions of her dispositions by not staying at the place of her residence, and accommodation approved by the person in charge, use of illicit substances and failure to attend appointments.”

16. Ms. S. (N.) had been living in the community but was admitted to the hospital on April 20, 2024. The circumstances surrounding the admission are excerpted from the Board’s latest Reasons for Decision and Disposition:

“A form 49 was activated after all attempts to manage her in the community failed. She was in flagrant disregard of the disposition and continues to deceive the team by constantly lying about her whereabouts, rental agreement, drug taking behavior, Lying to family, making excuses for her behaviour and attempts to mislead team and at times using her children’s visits as an excuse.”

“On Friday, Ms. S. (N.) had sent a picture of her wrist showing an extensive gash/laceration. She told the social worker that she had sustained an injury and was at the Montfort hospital. The social worker responded back in compassion and asked Ms. S. (N.) about her exact whereabouts. The social worker then drove to the Montfort hospital to meet Ms. S. (N.) and provide support. However, upon further conversation and as the social worker approached Montfort hospital, Ms. S. (N.) had turned off the phone. The social worker found that Ms. S. (N.) was never at the Montfort hospital as she had never been registered or provided any form of treatment there. Admitted on Saturday early hours of the morning. Ms. S. (N.) was at SP’s house- the police apprehended her and brought her to the FAU-Ottawa.”

17. Ms. S. (N.)’s current diagnoses are:

• delusional disorder with pseudocyesis, in remission;

• major depressive disorder, recurrent, with anxious distress, not currently depressed;

• generalized anxiety disorder with panic;

• alcohol use disorder, mild;

• stimulant use disorder - cocaine type, severe;

• relationship distress with spouse or intimate partner; and

• cluster B disorder.

Evidence from the ROL Report and the Addendum to the Hospital Report

18. Ms. S. (N.)’s restriction of liberty began on February 10, 2025, when Ms. S. (N.) was transferred from the forensic rehabilitation unit to the forensic assessment unit. Ms. S. (N.) continued to be detained in the forensic assessment unit until March 31, 2025, when she was transferred back to the forensic rehabilitation unit. The circumstances surrounding the transfer of Ms. S. (N.) to the assessment unit are described in the following excerpts from the ROL Report:

“Ms. S. (N.) remained in the Integrated Forensic Program at Royal Ottawa Hospital in City of Ottawa during the review period. She was on the forensic rehabilitation unit initially where she attained community indirect privileges. The privileges include passes to attend NA and Amethyst Groups within the City of Ottawa.”

“On January 28, 2025, Ms. S. (N.) went out early in the morning for a medical appointment. Staff was not aware of the appointment until she wanted to leave the unit. She later explained that she had called her family doctor and requested for a physical examination and vital signs checkup. When she was advised they could have been done at our facility, she indicated she preferred a female doctor and wanted to have pap smear and mammogram done as well. It later transpired the appointment was fabricated and this engendered some suspicion. The next day, staff requested a random urine drug screen. She delayed providing the sample and provided multiple excuses why she could not provide urine sample. She said she has diarrhea. … The urine sample tested positive for cocaine. This resulted in suspension of all privileges for seven days. Ms. S. (N.) was confined to the forensic rehab unit. … She has also been asking co patients for cash. She had plausible reasons for this and explained she did not have sufficient money for coffee and wanted some cash for coffee until she receives her benefits.”

“On February 10, 2025, Ms. S. (N.) tested positive for cocaine the second time in 2 weeks. It later transpired that she has been seeking co patients to bring her cocaine. She gave a male co patient her bankcard who withdrew cash and brought cocaine to the unit. She had also obtained drug paraphernalia, which she used to snort the cocaine in her room. Due to Ms. S. (N.) total disregard for unit rules, breach of procedural security, breach of her disposition and continued dishonesty, she was placed on continuous observation and transferred to Forensic Assessment Unit on February 10, 2025.”

Evidence at the Hearing

19. Dr. Alabi gave evidence for the hospital. Dr. Alabi authored and adopted the contents of the ROL Report. He has been Ms. S. (N.)’s attending physician since January 2025.

20. Counsel for Ms. S. (N.) suggested that Ms. S. (N.) demonstrated improvement by testing positive for cocaine only twice during the report period. Dr. Alabi rejected this suggestion and elaborated on the seriousness of Ms. Shank’s breaches of her Disposition.

21. With respect to the first use of cocaine in January, the doctor described how the hospital treatment team would not have known about this use of cocaine if Ms. Shank’s deceitful behaviour about a fabricated doctor’s appointment in the community had not prompted a random urine drug screen, which tested positive for cocaine. Dr. Alabi said that he was personally present when Ms. S. (N.) denied using cocaine and attempted to delay giving a urine sample. Ms. S. (N.)’s attempt to conceal the cocaine use and delay the urine sample was a serious breach of the unit rules and constituted a lack of compliance with the treatment team’s requests.

22. The doctor pointed out that not only did Ms. S. (N.) relapse into cocaine use a second time, in breach of her Disposition, but the second time she also involved a co-patient in breaching security by asking the co-patient to use her bank card to buy cocaine and bring it to the hospital for her. Ms. S. (N.) additionally breached security by bringing drug paraphernalia into her hospital room for her personal use.

23. Dr. Alabi told the panel that the treatment team has been told by other co-patients that Ms. S. (N.) “pestered” them for money and to obtain cocaine for her.

24. In response to questions by Ms. S. (N.)’s counsel, Dr. Alabi acknowledged that Ms. S. (N.) did not display any psychotic symptoms after each cocaine use. However, the doctor indicated that the treatment team had noticed an increase in behavioural issues following the first cocaine use in January, including increased deception (including not wanting her family to be informed of her cocaine use in January; and the fabricated doctor’s appointment in the community), and being more flustered. The team suspected that “something was going on”.

25. Dr. Alabi told the panel that continued use of cocaine is likely to lead to a relapse of symptoms of psychosis and/or other decompensations of mental status. It was necessary and appropriate for the hospital to take steps to prevent further cocaine use by Ms. S. (N.), and thus to avoid the risk of mental decompensation, by transferring her to the assessment unit.

26. To Ms. S. (N.)’s credit, she has participated in several addiction treatment programs since her admission to the hospital in April 2024. On the assessment unit, Ms. S. (N.) has participated in weekly individual counselling sessions with a therapist since February 28, 2025. This therapist is attached to the outpatient team. Dr. Alabi explained that this is an innovative way to provide this level of addiction rehabilitation treatment while Ms. S. (N.) is in the assessment unit.

27. During this time, Ms. S. (N.) took the initiative to pursue admission to residential treatment programs. She has been accepted at MacKay Manor, an inpatient program for women that runs for a duration of 83 days, and at present is anticipating an admission timeline of approximately two to three months. Ms. S. (N.) has also completed two interviews for Empathy House and is waiting to find out if she has been accepted. The wait time for the Empathy House program is anticipated to be approximately 6 months after acceptance into the program.

28. Ms. S. (N.) also participates in “daily honesty feedback”. Dr. Alabi explained that when he became Ms. S. (N.)’s attending physician, he found multiple inconsistencies in what Ms. S. (N.) told members of the treatment team. A daily diary program was initiated. At the end of the day, Ms. S. (N.) reflects on the day and journals whether she presented anything incorrectly to the treatment team. It is reviewed with her by a member of the treatment team. This provides Ms. S. (N.) with an opportunity to make amends, or set things right, at the end of each day.

Analysis and Conclusion

29. The analytical framework established by Campbell (Re), 2018 ONCA 140 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, ibid at 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, supra at para. 65).

30. Pursuant to the decision of (Re) Campbell, the Board agreed that a restriction of liberty had taken place. While in the rehabilitation unit, Ms. S. (N.) exercised indirectly supervised passes to the community. While in the assessment unit, these passes were not available to her. The Board found that the restrictions of liberty imposed on Ms. S. (N.), beginning on February 10, 2025, with her transfer to the assessment unit, and continuing to March 31, 2025, represented the least onerous and least restrictive intervention in the circumstances.

31. While on the rehabilitation unit, Ms. S. (N.) disregarded the unit rules and security protocols and breached her Disposition. She deceitfully fabricated a doctor’s appointment in the community which enabled her to obtain and use cocaine. She attempted to avoid providing a urine sample. She persuaded a co-patient to use her bank card to purchase cocaine and smuggle it onto the unit. She used drug paraphernalia in her room. She pressured other co-patients to participate in breaches of unit security by pressuring them to give her money and to obtain cocaine for her. She used cocaine on January 22 and February 2, 2025, and it was necessary for the hospital to manage the situation quickly to prevent an escalation of her drug use. It was also necessary and appropriate that the hospital prevent Ms. S. (N.) from tempting co-patients in the rehabilitation unit to participate in these breaches of hospital rules, by transferring her to the assessment unit. It is difficult to imagine what other intervention could have been pursued by the hospital in the circumstances.

32. Counsel for Ms. S. (N.) submitted that once Ms. S. (N.) was ready to be transferred to the rehabilitation unit, the ROL was no longer necessary and appropriate, least onerous and least restrictive. The hospital determined on March 11, 2025, that Ms. S. (N.) was ready to be transferred to the rehabilitation unit and placed her on the list for transfer on that date. In other words, as soon as Ms. S. (N.) was ready to be transferred, the hospital took steps to transfer her. It was not possible for the hospital to transfer Ms. S. (N.) until March 31, 2025, when a bed became available in the rehabilitation unit.

33. The extended restriction lasted for less than twenty days. The Board finds that this restriction was the least onerous and least restrictive intervention available to the hospital in these circumstances.

34. During the period of restriction, the hospital provided Ms. S. (N.) with access to a counsellor/therapist who would normally only be available to outpatients, to provide addiction rehabilitation programming to Ms. S. (N.) while she was in the assessment unit. The hospital acted to both prevent Ms. S. (N.) from having access to cocaine and to provide rehabilitation programming when she was in the assessment unit. In these circumstances, the Board finds that the ROL was the least restrictive and least onerous intervention available to the hospital.

35. The Board accepts the joint recommendation of the parties that the Disposition be amended to include the privilege of attending a residential treatment program anywhere in the Province of Ontario. To her credit, Ms. S. (N.) has participated in individual addiction rehabilitation counselling in the hospital and has taken the initiative to enroll in residential treatment programs. The Board agrees that the Disposition should be amended to permit Ms. S. (N.) to participate in this type of programming.

36. In reaching our Decision, the Board carefully considered public safety, Ms. S. (N.)’ mental condition, her integration into society and her other needs.

37. The Board wishes Ms. S. (N.) every success in remaining abstinent and encourages her to interact with the treatment team in a transparent and honest manner.

DATED this 8^th^ day of May 2025, at the City of Toronto, in the Region of Toronto.

Ms. K. Tomaszewski Legal Member

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Office of the Registrar Ontario Review Board