Re F. (K.), 2025 CanLII 42621

Ontario Review Board

Re: F. (K.)

ORB File No: 8370

Hearing held on: Wednesday, April 9, 2025

Place of hearing: Syl Apps Youth Centre 475 Iroquois Shore Road, Oakville

Pursuant to: Sections 672.44(1) and 672.48(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. L. Banks Members: Dr. R. Kunjukrishnan (by Zoom video-conference) Dr. G. Nexhipi Ms. C. Murray Mr. J. Cyr

Parties Appearing:

Accused: F. (K.) Counsel: Ms. K. Edward

The person in charge of hospital: Counsel: Mr. Wright

Attorney General of Ontario: Counsel: Mr. E. Taylor

REASONS FOR DISPOSITION

(Dated May 9, 2025)

Introduction

1. F. (K.), a young person within the meaning of the Youth Criminal Justice Act, was on February 4, 2025, found unfit to stand trial on account of mental disorder on charges of utter threats to cause death or bodily harm, forcible confinement, and assault with a weapon, all contrary to the Criminal Code. On finding F. (K.) unfit to stand trial, the Court did not make a Disposition but referred the matter to the Ontario Review Board (“ORB” or the “Board”) to conduct an initial review and to make a Disposition.

2. On April 9, 2025, a panel of the ORB convened to hold a hearing to review F. (K.)’s fitness pursuant to section 672.47(1) and, if determined unfit, to make a Disposition pursuant to section 672.48(1) of the Criminal Code. F. (K.) appeared in person for his initial hearing before the ORB. He was represented by his counsel, Ms. K. Edward. F. (K.) was also supported at the hearing by his parents.

3. For the reasons set out below, the Board finds that F. (K.) remains unfit to stand trial and that he poses a significant threat to the safety of the public. The Board determined that the necessary and appropriate Disposition to manage the threat posed to the public by F. (K.) while meeting his needs pursuant to s. 672.54 of the Criminal Code is that he be detained at the Syl Apps Youth Centre, Oakville, Ontario (“Syl Apps” or the “hospital”), with privileges up to and including passes into the community within a 100-kilometre radius of the hospital, accompanied by staff or a person approved by the person in charge of the hospital.

Alleged Index Offences:

4. The details of the alleged index offences are set forth in the Hospital Report to the ORB dated April 3, 2025 (the “Hospital Report”), as follows:

“On November 30, 2024, police were dispatched to a family trouble in progress call at 10 St. Andrews Drive, unit 29.

Original dispatch information provided to responding officers was that mom wants her son F. (K.) removed. He is trying to gain access to the knives, mom is blocking him. removed. He is trying to gain access to the knives, mom is blocking him. F. (K.) keeps saying he doesn’t want to hurt mom. He keeps picking up weapons, mom is afraid he will use them. Trying to get F. (K.) to go home.

Police arrived on scene and spoke with the complainant F. (P.). F. (P.) advised that her nephew F. (K.) had threatened to kill her and held up a knife towards her. F. (P.) advised that F. (K.) also did not allow her to leave as he was holding the knife up to F. (P.).

Police took a detailed statement from F. (P.) where she stated that the entire incident occurred due to the fact that F. (K.) was not allowed to go to a family Christmas event today. F. (P.) stated that F. (K.) had gone over to his mother’s house at unit 29. F. (P.) stated that F. (K.) had begun getting upset about the fact that she did not allow him to come to the family Christmas event and he kept insisting that he was going to come with her. F. (P.) stated that F. (K.) has behavioural issues that stem from autism and when he is told that he cannot do something, he immediately begins to get upset.

F. (P.) stated that F. (K.) then went into the kitchen where she was sitting at the kitchen table. F. (P.) stated that F. (K.) then began to get really upset and started pacing around the house looking for objects to grab. F. (P.) stated that F. (K.) attempted to grab some prescription medication that he had found on the table which she was able to wrestle away from him. F. (P.) stated that F. (K.) then grabbed a pair of scissors that he found on the grand ground and begin walking over to wards F. (P.) saying “oh, you want me to cut you?” (assault with a weapon, utter threats) and he would be making snipping actions with the scissors as he was seeing this. F. (P.) stated that F. (K.) then put F. (P.)’s finger in the scissors as though he was going to cut her so she quickly pulled her hand away. F. (P.) stated that he then handed the scissors over to her as he heard that she was on the phone with 911. F. (P.) stated that she then through the scissors into the living room into a pile of blankets because she didn’t want F. (K.) to get them back. F. (P.) stated that F. (K.) then tried to reach for a knife in the kitchen, but that she was standing in front of them and trying to create a barrier between F. (K.) and the knives. F. (P.) stated that she was constantly telling F “you’re making bad decisions, you need to stop”. F. (P.) stated that she turned her back for a second and right away F. (K.) lunged for the knives. F. (P.) stated that she did not see exactly where F. (K.) grabbed it but when he got the knife, he held it up at her with his fist raised in the air. F. (P.) stated that F. (K.) pinned her in the corner of the kitchen while doing this and that she felt intimidated because he was inflating his chest and staring her down and she felt as though she could not move (forcible confinement). F. (P.) stated that she felt unsafe in this situation and even more so that her sister was in the living room right next to the kitchen and had just returned from the hospital recently after getting surgery. F. (P.) stated that F. (K.) had put the knife down, he then grabbed another object from on top of the fridge which she described as a wooden leg from a chair. F. (P.) stated that F. (K.) then held the object up with his fist and began walking towards her. F. (P.) stated that he did not threaten her with the wooden object and placed it down just before police arrived.”

Initial Positions of the Parties:

5. At the outset of the hearing, the parties were canvassed as to their recommendations to the Board. Counsel for the hospital recommended that F. (K.) remains unfit to stand trial and that he be detained at Syl Apps with privileges up to passes, accompanied by staff or a person approved by the person in charge of the hospital, within 100-kilometre radius of the hospital.

6. Counsel for the Attorney General supported the hospital’s recommendations in all respects.

7. Counsel for F. (K.) also agreed that her client remains unfit to stand trial and she supported the hospital’s Detention Order recommendation with the privileges referred to above. Counsel conceded the issue of significant threat for the purposes of this initial hearing.

8. All parties maintained their initial joint recommendation in closing submissions and, in response to a question posed by the public member, all parties confirmed they were content with the inclusion of a weapons prohibition in the Disposition.

Personal Background:

9. F. (K.)’s personal history and background are set out in the Hospital Report and need not be repeated here. Briefly stated, he is a 16-year-old who was removed from his biological mother’s care at a young age and adopted by his aunt, whom he refers to as his mother. F. (K.) was assessed at age three due to concerns related to his development and significant delays in speech and adaptive functioning were noted. A diagnosis of Global Development Delay was made at that time.

10. At age nine, F. (K.) briefly attended the Lynwood Charlton Centre but was unable to stay beyond one week due to his uncontrollable behaviour. At that time, a further assessment supported a diagnosis of Disruptive Behaviour Disorder. Psychological testing completed identified a Full-Scale Intelligence Index and Adaptive Functioning scores below 0.1 percentile. A diagnosis of Intellectual Disability, mild was rendered at that time. A 2024 assessment identifies F. (K.)’s socialization skills as below the level of a three-year old and his communication skills at the level of a four-year old.

11. F. (K.)’s challenges presented at a young age and he has been diagnosed with Fetal Alcohol Spectrum Disorder. Since puberty, F. (K.) demonstrated chronic behavioural dysregulation and aggression. He also exhibits challenges with cognition, impulse control, and insight. The Hospital Report also indicates that he also presents with dysregulated sexual behaviour, particularly over the past calendar year.

12. F. (K.) has no history of alcohol or substance use.

13. F. (K.) was charged twice in 2022 for sexually touching three youths in a public swimming pool and subsequently for exposing himself.

14. Over the years, F. (K.) has been intensively supported in the community by psychiatrists, developmental pediatricians, in-patient and community care providers. Most recently, he has had two in-home support workers for up to 12 hours a day.

15. Over the years, he has been taken to the hospital for admissions and for emergency room contacts due to aggressive behaviours towards family members.

16. Prior to his arrest for the alleged index offences, F. (K.) was residing in the community with his adoptive parents.

Current Diagnoses:

17. F. (K.)’s current diagnoses are:

Intellectual Disability, moderate to severe;

Fetal Alcohol Spectrum Disorder; and

Conduct Disorder.

Evidence at Hearing:

18. Dr. J. Butler, F. (K.)’s attending psychiatrist since February 5, 2025, testified at the hearing to supplement the documentary evidence before the Board. Dr. Butler co-authored the Hospital Report and he endorsed its contents.

19. When addressing the issue of F. (K.)’s fitness to stand trial, Dr. Butler advised that he has assessed F. (K.)’s fitness on several occasions since his admission to Syl Apps, most recently on March 31, 2025. Dr. Butler thought it highly likely that F. (K.)’s fitness capacity would have remained static over the past week up to the hearing date. The doctor also advised that F. (K.) receives fitness training on a weekly basis with his social worker.

20. Dr. Butler testified that F. (K.) did not have an accurate understanding of the various players in a court proceeding despite having this information reviewed with him on many occasions. In answering questions related to the participants in a court proceeding, F. (K.) identified every party to a criminal proceeding as “friends” who are “trying to help me.”

21. Dr. Butler advised that F. (K.) believes that the outstanding criminal charges against him relate to the fact that he stabbed himself in the hand. Further, Dr. Butler stated that F. (K.) could not explain what “guilty” meant but he was able to articulate that being “innocent” meant that “he didn’t do it”.

22. F. (K.) was not clear regarding the obligation to tell the truth and he advised Dr. Butler that he does lie at times.

23. Overall, Dr. Butler expressed his opinion that F. (K.) lacks any understanding of how court processes might apply to his particular situation. Dr. Butler stated that he did not anticipate, even with ongoing fitness training and considerable education, that there would be a significant improvement in F. (K.)’s ability to become fit to stand trial.

24. When asked whether F. (K.) was likely permanently unfit to stand trial, Dr. Butler responded that it is too early to come to that conclusion at this juncture but he did add that he did not expect to see any meaningful changes occurring with regard to F. (K.)’s level of fitness in the near future. In the doctor’s opinion, F. (K.) remains unfit to stand trial at the present time.

25. The Hospital Report indicates that: “His [F. (K.)]responses were consistent with severe deficits described longitudinally by his psychological testing. The extent of his underlying intellectual disability rendered him unable to instruct counsel on a balance of probabilities, he is unable to engage meaningfully in court proceedings as a consequence of his underlying mental disorder.”

26. Dr. Butler advised that F. (K.) has been assessed as capable to make treatment decisions and that his current treatment regimen includes the following medications:

• Loxapine, an antipsychotic medication, to address his behavioural dysregulation and aggression;

• Sertraline, an antidepressant medication, to attenuate his sexually inappropriate behaviours; and

• Concerta and Clonidine, stimulant medications to address his attention deficit challenges.

27. Dr. Butler advised that since F. (K.) continues to struggle with significant attention deficit challenges, the plan going forward will likely be to either increase the current dose of his medications, or, if that is not sufficient, to transition him to a different medication. Should it become necessary, a fulsome assessment of F. (K.)’s capacity to consent to psychiatric medications will be conducted at that time.

28. In terms of F. (K.)’s presentation since his detention at Syl Apps, Dr. Butler advised that F. (K.) does not exhibit psychotic symptoms and he has generally not presented as a management problem. For the most part, F. (K.) is compliant with his prescribed medications which he takes under staff supervision.

29. The doctor noted that F. (K.) continues to use overly familiar language with women but, except as noted below, he has not engaged in sexually inappropriate conduct since his arrival at Syl Apps. The Hospital Report notes that “… his baseline inattention, poor impulse control, overly talkative nature has been quite aversive to many of his peers.” The Hospital Report indicates that F. (K.) was assaulted on one occasion by a co-resident in response to F. (K.) invading the peer’s personal space.

30. Dr. Butler provided an update to the Hospital Report and advised that on March 31, 2025, F. (K.) presented with a brief period of behavioural dysregulation. During an exchange with hospital staff, when F. (K.) was denied something he wanted, he responded by exposing himself and then urinating on the unit in the kitchen area. At that time, there was also an uncorroborated allegation from a co-resident of unconsented touching; however, Dr. Butler was not convinced of the veracity of that allegation.

31. Dr. Butler testified that F. (K.) presents with deficits in number of domains, including:

• emotional, dysregulation, and volatility;

• cognitive function;

• language development;

• attention span and distractibility; and

• inability to internalize taught materials.

32. F. (K.) expresses limited insight with regard to the nature of his challenging behaviours and accordingly, Dr. Butler expressed the clinical team’s view that without intensive ongoing supports and supervision, F. (K.) remains at risk of further criminal re-offending.

33. Dr. Butler testified that F. (K.) understands that he has challenges, particularly with regard to peers and social interactions; however, in the doctor’s assessment, F. (K.)’s understanding of “right and wrong” is very compromised. F. (K.) generally does not express remorse for his actions.

34. Dr. Butler testified that if unsupervised, F. (K.) would be prone to behavioural aggression and sexually inappropriate behaviour, likely involving unconsented touching. Dr. Butler stated that F. (K.) is fond of touching staff and, although his behaviours are not necessarily sexual in nature, they are often inappropriate.

35. The doctor commented that F. (K.) often exhibits aggressive behaviours and makes threats of harm to others when he is not able to get what he perceives he needs. When F. (K.) is denied something that he wants or, simply told “no”, that can immediately trigger him to respond with an escalated aggressive response.

36. Dr. Butler noted that in the past, even with 2:1 supports in his family home, F. (K.) was not able to be safely managed. In the treatment team’s opinion, F. (K.) continues to represent a significant threat to the safety of the public, particularly to family members and care providers in his immediate proximity. The risk F. (K.) presents includes both a risk of physical, as well as psychological harm.

37. Dr. Butler stated that the treatment team has observed that routine and consistent structure are important in managing F. (K.)’s behaviours. As well, the team is using motivational rewards to encourage F. (K.) to adhere to rules and acceptable social norms.

38. Dr. Butler advised that F. (K.) typically attends for periods of school weekly and also engages in recreational therapy within the hospital. He can also attend outside of the hospital, escorted by staff, for recreational passes and outings. He is currently meeting with a psychologist and social worker for regular therapy sessions. F. (K.) has also been assessed by a psychologist and found not to meet criteria for a diagnosis of Autism Spectrum Disorder and therefore, the provision of applied behaviour analysis treatment was not recommended.

39. With regard to the exercise of passes going forward, Dr. Butler stated that to date, F. (K.) has been escorted, on at least a 1:1 staff basis, when attending educational courses or programming in the hospital. He is allowed to attend co-ed activities with a staff member present. Further, F. (K.) has enjoyed privileges with his family with a staff member present. He is not capable of exercising indirectly supervised privileges at this time.

40. Looking forward to the reporting year ahead, Dr. Butler anticipated that F. (K.) would progress to the point where he might be able to exercise Approved Person passes in the community, possibly to attend at a family dinner or other activities with his caregiver parents. Dr. Butler stated that F. (K.)’s caregiver parents would first have to become designated by the hospital as Approved Persons.

41. In response to a question posed by a panel member, Dr. Butler stated that the treatment team did not think that F. (K.) would be an appropriate candidate for community living over the course of the upcoming reporting year.

42. Dr. Butler testified that at the present time, F. (K.) requires continued detention at Syl Apps under the authority of a Detention Order. In the doctor’s opinion, a less restrictive Disposition is not necessary or appropriate at this juncture.

43. No further evidence was called by the parties.

Analysis and Conclusions:

44. The test for fitness to stand trial, as set out in R. v. Taylor, is one of limited cognitive capacity. This means that the person charged must be able to understand the nature and object of the proceedings and their possible consequences and that he can recount to counsel facts necessary to allow counsel to properly prepare a defence. This last point has been elaborated upon by the Court of Appeal in R. v. Morrissey, 2007 ONCA 770, at para. 29, wherein Blair J.A. stated:

“The ability to communicate with counsel in the context of a fitness inquiry speaks to the ability to seek and receive legal advice.”

45. At para. 36 the Court stated:

“An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence... Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.”

46. The Court of Appeal addressed the fitness tests most recently in R. v. Bharwani, 2023 ONCA 203. The Court emphasized the need for meaningful participation in proceedings to be fit for trial.

47. Having considered the evidence presented at the hearing and the joint submission of the parties, the Board agrees that F. (K.) continues to be unfit to stand trial. F. (K.) is diagnosed with Intellectual Disability, moderate to severe. He is unable to recall the nature of the outstanding criminal charges against him. Despite ongoing fitness training, F. (K.) is unable to identify the participants in a court proceeding and their respective roles. His comprehension of criminal court processes is exceptionally poor. He does not have a meaningful appreciation of the jeopardy he faces or an ability to make decisions. His ability to process and retain information is quite limited due to his cognitive impairment. The uncontradicted evidence of the hospital is that F. (K.) would be unable to instruct counsel and to meaningfully participate in a trial.

48. On the basis of the entire evidentiary record, including the oral testimony of Dr. Butler, the Board finds that F. (K.) continues to meet the threshold for significant threat to the safety of the public. F. (K.) continues to present with emotional dysregulation, aggression, volatility and sexually inappropriate behaviours, even within the highly structured and staff supervised setting of the hospital. The index offence involved significant unpredictable and unprovoked violence. He threatened his mother with a knife in his hand and she feared for her life.

49. The joint recommendation of the parties is that the necessary and appropriate Disposition to safely manage F. (K.)’s risk of harm to others is that he be subject to a Detention Order at Syl Apps. The Board agrees that F. (K.) continues to require a prolonged admission in order to safely manage his risk to the safety of the public. We agree with the privileges recommended by the hospital and endorse the inclusion of a weapons prohibition as well.

50. The Board wishes to commend F. (K.) for his presentation at the hearing. He was attentive throughout the hearing and was helpful and forthcoming when answering questions. He was very well-mannered. The panel wishes him the best for the year ahead.

51. In coming to our decision, we have taken into consideration the factors at s. 672.54 of the Criminal Code of Canada, namely the protection of the public, which is the paramount consideration, the mental condition of F. (K.), his reintegration into society and his other needs.

DATED this 9^th^ day of May 2025, at the City of Toronto, in the Region of Toronto.

Ms. L. Banks

Alternate Chairperson

__________________________

Office of the Registrar

Ontario Review Board