Ontario Review Board
Re: Mark McKinnon
ORB File No: 7958
Hearing held on: Monday, March 24, 2025
Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto
Pursuant to: Section 672.81(1) of the Criminal Code
Before: Alternate Chairperson: Ms. L. Banks Members: Dr. P. Prendergast Dr. L. O. Lightfoot Ms. M. Labrosse Mr. A. Bouvier
Parties Appearing: Accused: Mark McKinnon Counsel: Mr. A. Pollard The person in charge of hospital: Counsel: Ms. S. Zelaya Attorney General of Ontario: Counsel: Mr. C. Waite
REASONS FOR DISPOSITION
(Dated May 6, 2025)
Introduction:
[1]. On October 14, 2021, Mr. Mark McKinnon was found not criminally responsible on account of mental disorder (“NCR”) on charges of criminal harassment, failure to comply with probation order, and failure to appear, all contrary to the Criminal Code of Canada (the “Criminal Code”).
[2]. Mr. McKinnon is currently subject to a Disposition of the Ontario Review Board (“ORB” or the "Board") dated April 15, 2024, detaining him on the Forensic Service at the Centre for Addiction and Mental Health (“CAMH” or the “hospital”) with privileges up to and including to live in the community in supervised accommodation approved by the person in charge of the hospital.
[3]. On March 24, 2025, a panel of the Board convened at CAMH to hold a hearing to review Mr. McKinnon’s Disposition pursuant to s. 672.81(1) of the Criminal Code. Mr. McKinnon was not in attendance at the hearing but was represented by his counsel, Mr. Pollard. Mr. Pollard advised that he had received full instructions and was prepared to proceed in his client’s absence. At counsel’s request, the Board agreed to excuse Mr. McKinnon from attending the hearing under s. 672.5(10) of the Criminal Code.
[4]. The issues to be determined at this time were whether Mr. McKinnon meets the threshold of significant threat and, if so, the necessary and appropriate Disposition in the circumstances to manage that risk having regard to the criteria set out in s. 672.54 of the Criminal Code.
[5]. For the reasons set out below, the Board finds that Mr. McKinnon continues to represent a significant threat to the safety of the public and that his existing Detention Order remains the necessary and appropriate Disposition without amendment.
Initial Positions:
[6]. At the outset of the hearing, the parties were canvassed as to their initial positions. The hospital’s representative indicated the hospital was seeking a continuation of the existing Detention Order.
[7]. Counsel for the Attorney General supported the hospital’s recommendation.
[8]. Mr. Pollard indicated he was interested in exploring the feasibility of a Conditional Discharge Disposition and he conceded the issue of significant threat. In closing submissions, Mr. Pollard indicated that he was supporting the hospital’s recommendation.
[9]. In closing submissions, the parties made a joint recommendation for a continuation of the existing Detention Order Disposition.
Index Offences:
[10]. The circumstances of the index offences involved persistent and escalating harassment over almost three years after the victim had terminated a nine-month relationship with Mr. McKinnon. The particulars of same are set out in detail in the Hospital Report dated March 3, 2025 (the “Hospital Report”) but are summarized as set out in last year’s ORB Reasons, as follows:
“The index offences occurred in the context of a former relationship and almost three years of unwanted communications directed at the victim by Mr. McKinnon. After a nine-month relationship with SG that ended in September 2017, Mr. McKinnon persisted in contacting her after he: (a) was warned by the police to stop, (b) he was charged with criminal harassment and signed an undertaking not to have contact with her, (c) he was charged and released again, (d) he completed counseling and entered into a peace bond including a condition that he have no contact with SG, (d) he was again charged for repeatedly contacting her and was released on bail with a no contact term, and (e) he pleaded guilty to criminal harassment and fail to comply with the peace bond and was placed on probation for three years (including a term to have no contact with SG) in September 2019.
After his convictions in September 2019, Mr. McKinnon continued to email SG. At times, she received six or seven a day. She decided not to report them to the police – she thought maybe that was the attention Mr. McKinnon was seeking. By this time, SG was using a new email address but she kept the previous one and could check for messages from Mr. McKinnon. Often the emails were sent from unknown email addresses but followed a format and style that made them identifiable.
Leading up to June 2020, SG began to receive “up to 100 emails a day” and they became “more weird and malicious”, and made SG increasingly fearful. One email stated: “you are dead yesterday.” On June 12, 2020, SG and her mother noticed someone standing just outside their backyard gate. SG checked her phone and found emails from Mr. McKinnon telling her that he was waiting outside her home and asking her to come outside. When a car drove by the house, SG was able to see by the lights that the figure outside was Mr. McKinnon. SG’s mother called the police. When police arrived, Mr. McKinnon referred to himself as God and “King, God”. He was charged with criminal harassment (x2), breaching his probation (x2) and threatening. He was released on a recognizance on June 16, 2020.
The index offences themselves, occurred on June 17, 2020. Almost immediately upon his release from jail, Mr. McKinnon began to email SG again. He sent 12 emails and was found by police in a park near her home.
Mr. McKinnon later explained that just before these June events, he began to hear SG’s voice in his head. They were conversing and she was inviting him in. He believed she was experiencing a “psychic breakdown” and needed his help. He realized that both he and SG had “exalted supernatural status”, had been chosen by God and he needed to make sure she understood this. Before contacting her, he asked for a sign from God and he received a clear one in the form of a bird.”
Personal History:
[11]. The Hospital Report outlines in detail Mr. McKinnon’s personal background, legal and psychiatric history and need not be repeated here as it was entered as an Exhibit at the hearing. Additionally, the previous Board’s Reasons for Disposition dated May 2, 2024 also summarize Mr. McKinnon’s history and his circumstances and we rely heavily thereon in these Reasons.
[12]. In brief, Mr. McKinnon is a 31-year-old man. He was born and raised in Peterborough and has one brother. His father suffered a brain injury that caused him to have “fits of rage” that strained that relationship. Mr. McKinnon reported positive relationships with his mother and brother.
[13]. Mr. McKinnon completed high school and one year of university before choosing to pursue music.
[14]. Mr. McKinnon began using cannabis in high school and reported using it a couple of times a week. He was inconsistent in his reports of alcohol use but acknowledged that he had at one time been drinking excessively and decided to stop.
[15]. Mr. McKinnon had a variety of jobs, including operating machinery, labour and restaurant work, that he balanced with his music pursuits. His goal was to be able to support himself through his music.
[16]. Mr. McKinnon had had two significant relationships, one of five years in duration that preceded his relationship with SG (the victim of the index offences). Mr. McKinnon described himself as “devastated” when his relationship with SG ended.
[17]. Leading up to the index offence, Mr. McKinnon was living in his own apartment. His mother saw a significant change in his mental health during the pandemic. He was depressed. It was her impression he was drinking and using cannabis daily. His friends reported that he spoke of rekindling his love for someone.
Legal History:
[18]. He had no criminal history prior to his involvement in the index offences.
Psychiatric History:
[19]. Mr. McKinnon had a limited psychiatric history prior to the index offences. He reported experiencing depression and once saw a psychiatrist who prescribed anti-depressant medication. After a short trial, he stopped taking the medication because he felt that it dulled his creative process. After SG ended the relationship in 2017, he attended a hospital emergency department with a friend in April 2018, after experiencing suicidal thoughts. He had been using cannabis for a few days and he acknowledged that it put him in a “bad state of mind”. He was treated, prescribed an anti-depressant, and discharged the next day.
Current Diagnoses:
[20]. Mr. McKinnon is diagnosed as suffering from Bipolar I Disorder.
Evidence at the Hearing:
[21]. Dr. O’Sullivan, Mr. McKinnon’s attending psychiatrist, testified at the hearing to supplement the documentary materials before the Board. He adopted the contents of the Hospital Report and advised that there were no material updates.
[22]. Following his last annual ORB hearing, in April 2024, Mr. McKinnon remained on the FGUB, a general forensic unit, under the care of Dr. T. Wilkie until he was transferred to Dr. H. Meng in August 2024. In December 2024, Mr. McKinnon’s care was transferred to Dr. O’Sullivan.
[23]. Mr. McKinnon is capable of consenting to or refusing consent for treatment of his Bipolar Disorder and he has continued to decline mood-stabilizing medication intended to decrease the likelihood of a further manic episode or significant affective decompensation. Despite a lack of pharmacological treatment, Mr. McKinnon has remained clinically stable and has not presented with emotional lability or any features suggestive of a decompensation of his Bipolar-I Disorder, e.g., hypomania, mania, depression or psychosis. He has not been observed responding to internal stimuli, nor has he disclosed any overt delusions.
[24]. The Hospital Report indicates that: “He has exhibited varying degrees of guardedness, cognitive rigidity, levels of engagement and motivation, and likely hypergraphia (i.e., an intense urge to write/draw).”
[25]. In terms of his management, Mr. McKinnon has not required restraints or any periods of seclusion, nor has he been the subject of any code whites. The doctor stated that there have not been any behavioural management concerns of the past reporting year.
[26]. Mr. McKinnon has regularly used level 8 indirectly supervised passes on hospital grounds and in the community. He has managed these passes appropriately, without incident. To his credit, he regularly uses his passes and there are no reports of him engaging in substance use over the past reporting year and this has been verified by random urine drug screens.
[27]. Throughout his extensive use of indirectly supervised community passes, there has not been any evidence of Mr. McKinnon approaching, contacting, or attempting to contact SG, the victim of the index offences.
[28]. In terms of his insight regarding the index offences, the Hospital Report indicates that Mr. McKinnon“…continues to justify his actions and externalize responsibility, however, he expresses a high level of confidence that he will not contact his ex-partner in the future….Mr. McKinnon said that although he still thinks about the victim from time to time he has stated he 'conclusively' has no plans or intent to contact her.”
[29]. In terms of insight into his mental illness, Mr. McKinnon has consistently denied his diagnosis of Bipolar Disorder and he has commented that his prolonged period of stability in the hospital in the absence of medication is proof that he does not suffer from a major mental illness. As stated, he has consistently refused mood-stabilizing medication as he does not believe he has any need for treatment. He does not agree that he was experiencing mental health challenges at the time of the index offences. He does not think that there is any possibility that he could suffer any relapse in the absence of mood stabilizing medication. He lacks insight into the fact that fact that his mental illness is chronic in nature.
[30]. According to the Hospital Report, “Without medication, the likelihood of relapse episodes in an individual with Bipolar I Disorder is increased. Mr. McKinnon remains untreated and thus stressors in an unstructured environment could be more likely to lead to decompensation and re-emergence of manic symptoms. During such a manic phase, Mr. McKinnon would be more likely to engage in psychological violence towards others as during his index offence.”
[31]. Mr. McKinnon has engaged in both recreational and therapeutic programming over the year. He attended Cognitive Behavioural Therapy group, pet therapy, yoga and tai chi. He has described such programming as not being necessary for him. He declined a referral for 1:1 psychotherapy sessions on several occasions. Further, he has declined substance use programming during the review period as he does not feel he would benefit from this programming. He reports being abstinent for 5 years and never having had a substance use problem.
[32]. Dr. O’Sullivan stated that until quite recently, Mr. McKinnon has been generally unwilling to engage in discharge planning and this has delayed the process considerably. Mr. McKinnon’s expressed goal had been to appeal his NCR finding and “exit” the ORB’s jurisdiction in that manner. However, he has more recently agreed to apply for governmental financial assistance thru the ODSP and is more receptive to the team’s plan to discharge him to a supervised community placement. This has been a significant breakthrough in terms of opening up discharge options given the potential prospect of governmental funding. Presently, his ODSP application is under review and the team is exploring his placement in TRHP-2 housing which is a 24/7 supervised housing program. Mr. McKinnon is now accepting of the proposal to place him in supervised housing at White Squirrel Way which is in close proximity to CAMH.
[33]. According to the Assessment of Risk contained in the Hospital Report, “Mr. McKinnon presents with a number of factors that are salient and relevant to his assessment of risk, such as repeated and persistent history of criminal harassment towards victim, violation of legal orders, history of problems with substance use, problems with employment, lifestyle instability and what appears to be a volatile relationship with the victim of the index offence. Lack of insight into mental state, maladaptive personality traits and difficulties managing same appear to have either contributed to or exacerbated problems in relationship with victim.”
[34]. Dr. O’Sullivan confirmed that Mr. McKinnon’s primary risk factors, as set forth in last year’s Reasons for Disposition, continue to remain relevant in the treatment team’s finding that he continues to meet the threshold of posing a significant risk to members of the public. These risk factors are:
- his major mental illness;
- his history of criminal offending;
- his limited insight across all domains, particularly with regard to impact of his past behaviours on the victim;
- his refusal of recommended treatment with mood–stabilizing medication;
- his vulnerability to substance use;
- his superficial engagement with clinical team members (albeit Dr. O’Sullivan testified that there has been some modest improvement in this regard); and
- his history of supervision difficulties.
[35]. In assessing Mr. McKinnon’s risk, Dr. O’Sullivan endorsed the findings of the Hospital Report indicating that, “He would remain a low-moderate risk for violence under the recommended disposition of a Detention Order. In contrast, were he subject to a Conditional or Absolute Discharge, the risk of future violence would be moderate-high.”
[36]. The doctor testified that although Mr. McKinnon has had another year of stability and has not experienced active symptoms of his illness, his stability must be seen in the context of the highly structured and supervised environment of the hospital and the fact that he has remained abstinent of substances of abuse. Going forward when ultimately discharged into the community, Mr. McKinnon will require ongoing close monitoring by his housing staff and his outpatient team to ensure that he does not reach out to the victim of the index offences.
[37]. In terms of discharge planning, Mr. McKinnon has been assessed as requiring supported accommodation in order to closely monitor him for substance use as well as for any signs of decompensation in his mental health, particularly given that he remains untreated. The treatment team is currently making inquiries and seeking out appropriate housing placements for him. In the team’s assessment, the hospital requires the ability to approve his housing in the community as well as the authority of a Detention Order to rapidly readmit him in the event of a significant change in his risk profile.
[38]. When addressing the likely re-offence scenario, the Hospital Report indicates “If Mr. McKinnon were to reoffend, it would likely occur in the context of exposure to destabilizers, a relapse into substances such as cannabis, and non-adherence with supervision and monitoring. Without medication, the likelihood of relapse episodes in an individual with Bipolar I Disorder is increased. Mr. McKinnon remains untreated and thus stressors in an unstructured environment could be more likely to lead to decompensation and re-emergence of manic symptoms. During such a manic phase, Mr. McKinnon would be more likely to engage in psychological violence towards others as during his index offence.”
[39]. Prior to a discharge to community living, the team hopes Mr. McKinnon will continue to engage in structured activities to better develop coping strategies and skills to mitigate the destabilizing impact of stressors. Dr. O’Sullivan is also hopeful that Mr. McKinnon will engage in FORCAT and avail himself of individualized psychological services. In addition, Dr. O’Sullivan was hopeful that Mr. McKinnon will accept mood-stabilizing medication. Dr. O’Sullivan stated that he expected Mr. McKinnon would be likely to refuse both FORCAT and medication; however, he advised that his anticipated refusal would not likely pose a barrier to his discharge.
[40]. When asked why a Conditional Discharge would be inappropriate to safely manage Mr. McKinnon in the community, Dr. O’Sullivan commented that Mr. McKinnon remains untreated with psychotropic medications and is vulnerable to substance abuse relapse. The doctor stated that the Mental Health Act (“MHA”) would be inadequate to promptly readmit Mr. McKinnon to hospital should he suffer a decompensation in his mental state for any reason and the resultant delay would give rise to elevated public safety concerns. The doctor stated that the MHA would not operate to allow Mr. McKinnon’s swift return to hospital should he re-engage in stalking behaviours or present with emerging symptoms of his illness. The doctor also testified that the MHA would be insufficient to enable him to be detained in hospital for a lengthier stay should that be recommended by his treatment team. In the doctor’s opinion, a Detention Order remains necessary from a risk-management perspective.
[41]. In response to a question posed by a panel member, Dr. O’Sullivan stated that despite the fact that Mr. McKinnon has been stable for quite some time in the absence of medication, his Bipolar illness is chronic in nature and is prone to relapse. The doctor commented that the fact that Mr. McKinnon has been detained within the structured environment of the hospital has likely been of assistance in the management of his stressors and thereby, in maintaining his stability.
[42]. No further evidence was called by the parties.
Analysis and Conclusion:
[43]. The Board accepts the evidence of Dr. O’Sullivan as supported by the Hospital Report and unanimously finds that Mr. McKinnon meets the threshold of significant threat. We note that Mr. McKinnon suffers from Bipolar I Disorder and he continues to refuse to accept recommended treatment with mood-stabilizing medication. The index offences represented the culmination of three years of persistent, escalating, and frightening harassment of SG, who had terminated their relationship.
[44]. Mr. McKinnon continues to have underdeveloped insight regarding his mental illness, its symptoms, the need for medication, his risk profile, and the impact of his past behaviours on the victim. The evidence establishes that the risk that he will repeat his past criminal conduct is not speculative.
[45]. While Mr. McKinnon has remained stable, with no overt symptoms of his major mental illness over the past few years, the evidence suggests that his stability must be seen in the context of the highly supervised and structured environment of the hospital, where he has limited access to substances of abuse, and where stressors are minimal.
[46]. For all of the reasons articulated above, the panel agrees with the joint recommendation of the parties that Mr. McKinnon continues to represent a significant threat to the safety of the public.
[47]. Having found that Mr. McKinnon continues to meet the threshold of significant threat, the Board must craft a Disposition that is the least onerous and least restrictive as well as necessary and appropriate to safely manage his risk.
[48]. The Board panel was mindful of the expert testimony of Dr. O’Sullivan indicating that Mr. McKinnon’s risk to public safety can only be managed under a Detention Order Disposition at the current juncture. This panel agrees that the hospital requires the authority of a Detention Order to oversee Mr. McKinnon’s eventual residential placement in the community to ensure that it provides him with the appropriate degree of support, supervision, structure and monitoring to safely manage his risk. Additionally, the expert evidence highlighted that a Detention Order remains necessary and appropriate to effect Mr. McKinnon’s prompt readmission to the hospital should he suffer any signs of decompensation while living in the community. We agree that a Conditional Discharge Disposition would not allow the hospital to act pre-emptively in the context of Mr. McKinnon experiencing intensified symptoms of his mental illness, or engaging in substance use. In this panel’s assessment, it remains critical from the public safety perspective that the hospital be able to affect his expeditious readmission if needed rather than having to wait until such time as Mr. McKinnon’s mental state satisfied the Mental Health Act criteria for an involuntary admission. In our assessment, the risk management tools provided under the authority of a Detention Order remain necessary and appropriate at this time. There is currently no air of reality to a Conditional Discharge.
[49]. The Board finds that the necessary and appropriate Disposition remains a Detention Order within the Forensic Service on the terms of his existing Order. We are hopeful that Mr. McKinnon will be placed in supportive housing in the community over the upcoming reporting year.
[50]. In reaching our decision, we have taken into consideration the criteria set out in s.672.54 of the Criminal Code, which are the safety of the public, which is the paramount consideration, Mr. McKinnon’s mental condition, his reintegration into society and his other needs.
DATED this 6th 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