Re: Ojullu Ochan Omot, 2025 CanLII 42624

Ontario Review Board

Re: Ojullu Ochan Omot

ORB File No: 7613

Hearing held on: Monday April 7, 2025

Place of Hearing: Southwest Centre for Forensic Mental Health Care

Pursuant to: Sections 672.81(1) and 672.48(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. R. Bigelow

Members: Ms. S. Clapp Dr. S. Swaminath Dr. M. Green Ms. C. Plyley

Parties Appearing:

Accused: Ojullu Ochan Omot Counsel: Mr. R. Cunningham

The Person in Charge of Hospital: Counsel: Ms. J. Zamprogna

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

REASONS FOR DISPOSITION (Dated May 7, 2025)

Introduction

1On August 26, 2019, Ojullu Ochan Omot was found unfit to stand trial on charges of sexual assault (x3), criminal harassment (x4), indecent act, failing to comply with an undertaking, fail to comply with a judicial release order and possession of marijuana contrary to the Criminal Code and the Controlled Drugs and Substances Act. He is subject to a disposition of the Ontario Review Board (the Board) April 24, 2024, ordering his detention at the Southwest Centre for Forensic Mental Health Care (the Hospital) with privileges up to and including residence in the community of Elgin County in supervised accommodation approved by the person in charge.

2On Monday, April 7, 2025, the Board convened a hearing to consider Mr. Omot`s fitness to stand trial and review his disposition pursuant to sections 672.48(1) and 672.81(1) of the Criminal Code. Mr. Omot was present and represented by counsel, Mr. Cunningham. A Swahili interpreter was also present at the hearing and provided consecutive interpretation services.

3The issues to be determined at the hearing were whether Mr. Omot continues to be unfit to stand trial and, if so, what was the necessary and appropriate disposition that was also the least onerous and least restrictive taking into account the factors set out in 672.54 of the Criminal Code.

Initial Positions of the Parties

4At the commencement of the hearing the parties were requested to provide their initial without prejudice positions with respect to the issues before the Board. Counsel for the Hospital indicated that it was the Hospital’s position that Mr. Omot continued to be unfit to stand trial and that the necessary and appropriate disposition was a continuation of the current detention order without change.

5Counsel for the Attorney General supported the Hospital recommendation. Counsel for Mr. Omot advised that he wished to reserve his position pending hearing the evidence.

Evidence at the hearing

6The evidence at the hearing consisted of the Hospital Report dated February 6, 2025, and the oral evidence of Dr. A. Malka, Mr. Omot’s treating psychiatrist.

Findings

7For the Reasons that follow, the Board finds that Mr. Omot continues to be unfit to stand trial and that the necessary and appropriate disposition is a detention order without change to the terms and conditions of the current order.

Alleged Index Offences

8The circumstances surrounding the alleged index offences as summarized in last year’s Reasons for Disposition are as follows:

Briefly stated, they are that on April 2, 2018, Mr. Omot approached children at a skate park in Kitchener, Ontario. He approached a girl and placed his hands on her buttocks and began rubbing his hand upwards. He sat at a bench beside another girl and began rubbing her left knee with his hand and stroking her hair. A witness approached him and told him to leave, and he pushed her in the shoulder as he departed.

About an hour later he walked past two females and asked one if she was married. He walked up to the second female and exposed his penis and said, “look at it”. He was arrested shortly thereafter, and 0.84 grams of cannabis was located on his person.

On April 22, 2018, while children and teenagers were playing by a creek, Mr. Omot attended and sat on a rock between a set of benches near the children. He started to talk to a young female and asked her if she had ever had sex before. The children noted he was drinking from a beer can he held in his jacket pocket, and he smelled of alcohol. They left the creek area and joined other children at the back of a school. Mr. Omot appeared again and began to chase them. One girl was unable to jump over a fence due to her injured knee and two friends stayed with her so she would not be alone with the accused. He asked the children if they wanted to fight, and they declined. One child left and sought the assistance of a teenaged male who approached Mr. Omot and told him to leave the children alone. They took the opportunity to run away. He was arrested on April 24, 2018.

Background Information Regarding the Accused

9Mr. Omot is currently 34 years of age and was born in Ethiopia. He fled Ethiopia with his brother and uncle due to the war in 2005 and lived in a refugee camp in Kenya until he and his brother immigrated to Canada in March 2017. While in Kenya Mr. Omot only achieved a grade 7 education. After arriving in Canada, the brothers attended school in Kitchener Ontario, but the evidence is unclear as to what level may have been achieved.

10Life in the refugee camp was difficult for Mr. Omot and his brother, and they were subject to abuse. Mr. Omot’s brother reports that in the refugee camp Mr. Omot’s personality changed and that he has had a difficult time adjusting to life and freedom in Canada.

Substance Use History

11Mr. Omot’s brother advised that Mr. Omot had been using a drug/herbal substance prior to coming to Canada which one would chew. After his arrival in Canada Mr. Omat began to spend time around peers who used street drugs and he began to use alcohol and drugs.

Legal History

12Mr. Omot had no criminal convictions or contact with police prior to the alleged index offences although it should be noted that he had only been in Canada for approximately one year at that time.

Psychiatric History

13Mr. Omot first began to display symptoms of depression after moving to the refugee camp in 2005. He started to withdraw from others in 2007 and stopped attending school. His depression became worse after his uncle became ill in 2014. Shortly before immigrating to Canada Mr. Omot began to take antidepressant medication while in the refugee camp. His family doctor in the Kitchener area prescribed further antidepressants but Mr. Omot’s brother indicated that there were difficulties with compliance due to alcohol and drug use.

Current Diagnosis

14Mr. Omot’s current diagnoses are:

• Schizophrenia

• Substance Use Disorder

• Intellectual Disability

Evidence of Dr. Malka

15Dr. Malka indicated that she had been Mr. Omot’s attending physician since December 2024. Mr. Omot remained symptomatic although his symptoms had improved. Over the reporting year he had been placed in seclusion on three occasions, in February, June and October. In her opinion much of Mr. Omot’s behaviour can be traced back to his history of trauma, as many symptoms which may appear to be related to his major mental illness, such as hallucinations and hearing voices of his abusers, are actually related to trauma history.

16Dr. Malka noted that Mr. Omot had recently commenced trauma therapy with a psychologist experienced in dealing with individuals with similar backgrounds to Mr. Omot. Mr. Omot was enthusiastic about the program and the first session had gone quite well. Although he is adherent to medication under supervision, his insight into his illness and need for treatment fluctuates. Due to his deficit in executive functioning there is a substantial likelihood that he would forget to take medication if not supervised.

17Dr. Malka noted that there had been a significant improvement in Mr. Omot’s behaviour since his last seclusion in October 2024. In her opinion a significant cause for this improvement was positive reinforcement techniques (as opposed to punitive measures) used by the treatment team.

18Dr. Malka indicated that she had a concern that previous cognitive assessments had been influenced by symptoms so she had recently requested a further cognitive assessment which she anticipated would take place once the team were able to see the effects of the trauma therapy. Although she had concerns about the validity of the diagnosis of intellectual disability, she was not prepared at this time to withdraw that diagnosis but indicated that this would be reviewed and depending on the results of further cognitive assessment, the diagnosis may well be changed prior to Mr. Omot’s next Board hearing. Dr. Malka also stated that she intended to do sexual behaviour assessments as well.

19In terms of substance use, Dr. Malka testified that although all drug screens have been negative, Mr. Omot’s insight into substance use fluctuates and he is not stable enough to engage in any programming. She also stated that Mr. Omot’s vulnerability to relapse is quite high because he remains impressionable and would likely be susceptible to negative peer influences.

20Dr. Malka last assessed Mr. Omot’s fitness to stand trial on the morning of the hearing and was of the opinion that he continued to be unfit to stand trial. He did not appear to be aware of his charges. His understanding of the role of defence counsel and judge was limited, and he was not aware of the function of the Crown Attorney. He was unable to discuss the pleas available to him or the potential consequences of the proceedings. In her opinion he would not be able to instruct counsel or meaningfully participate in a trial.

21Dr. Malka added that attempts to educate Mr. Omot with respect to legal proceedings had little impact. However, she was cautiously optimistic that after addressing his trauma related issues, there will be an improvement in his understanding. In her opinion it was premature to determine that he was permanently unfit.

22In response to questions from counsel for Mr. Omot, Dr. Malka added that it was her understanding that he now had level III privileges in the Hospital which allowed for indirectly supervised movement within the Hospital. Shortly after Dr. Malka indicated this, Mr. Omot interrupted to advise that he had level IV privileges. Dr. Malka then confirmed with a member of the treatment team that he did have level IV privileges which also allowed him indirectly supervised access to Hospital grounds.

23In response to questions from counsel for Mr. Omot, Dr. Malka indicated that there had been a prior fitness assessment undertaken with the assistance of an interpreter but that had been in February 2021, and she agreed that it would likely be helpful to reassess fitness with the assistance of an interpreter.

24In response to questions from panel members, Dr. Malka said she was not aware of exactly what agreements had been made with the trauma therapist with respect to sharing information with the Hospital but that she understood that the therapist was meeting with Hospital staff to discuss the details of his involvement.

Final Positions of the Parties

25At the conclusion of the evidence, the chair asked Mr. Cunningham if he could indicate his position so that the other counsel would know what the live issues were. He indicated that he would not be disputing the issue of fitness and that he applauded the treatment team for the work they had put into working on Mr. Omot’s fitness. He also indicated that he would not be disputing the appropriateness of a detention order on the terms of the current order but wished to note this significant improvement Mr. Omot had shown over the last number of months.

26Counsel for the Hospital and counsel for the Attorney General maintained their initial positions resulting in a joint submission before the panel.

Analysis and Conclusion, Fitness to Stand Trial

27Although the issue of fitness was not contested at the conclusion of the hearing, the Board nevertheless makes an independent finding that Mr. Omot continues to be unfit to stand trial.

28The interpretation section of the Criminal Code defines unfit to stand trial as follows:

unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel

29Dr. Malka’s evidence which was not challenged at the hearing and which the Board accepts was that Mr. Omot does not understand the nature or object of the proceedings, the possible consequences of the proceedings or have the ability to meaningfully communicate with counsel.

30At the end of the hearing Mr. Cunningham inquired as to whether the court had held an inquiry into whether there is a prima facie case against Mr. Omot as required by section 672.33 of the Criminal Code. Mr. Rows advised that he did not have that information but would make inquiries and follow-up with the parties.

Analysis and Conclusion, Necessary and Appropriate Disposition

31Having determined that Mr. Omot continues to be unfit to stand trial, the Board has only two options available in terms of making a disposition unless the Board is of the view that the unfitness is likely permanent and that the accused does not represent a significant threat to the safety of the public in which case it may refer the matter to the court for consideration of an absolute discharge. Absent those findings, the Board must either issue a detention order or order that the accused be discharged on conditions. In the present case the evidence supports neither a finding that the unfitness is likely permanent, nor that Mr. Omot does not represent a significant threat to the safety of the public. The evidence of Dr. Malka was that it was premature to conclude that Mr. Omot’s unfitness was likely permanent. She believed that some of the symptoms experienced by Mr. Omot were likely related to trauma he has suffered rather than to his major mental illness. In her opinion, successful trauma therapy may resolve some of those symptoms allowing for a significant improvement in Mr. Omot’s understanding of his legal situation.

32The evidence also does not support a conclusion that Mr. Omot is not a significant risk to the public. In addition to the trauma related issues referred to above, Mr. Omot is diagnosed with schizophrenia, substance use disorder and an intellectual disability. He has little insight into his major mental illness or the need for treatment for that illness. Although he has been abstinent from substance use since his arrest on the alleged index offences, he has been in confinement with no access to the community. While in hospital he has acted out aggressively both physically and verbally and within the reporting year was placed in the seclusion on three separate occasions due to his acting out.

33The Board finds that there is no air of reality to a consideration of a conditional discharge. As noted above Mr. Omot’s lack of insight into his illness results in a strong likelihood that he would not be adherent to recommended treatment nor would he likely return to hospital voluntarily if requested. The alleged index offences are of an extremely serious nature and his aggressive and inappropriate behaviour while in the hospital strongly indicates that absent the close supervision provided by a detention order he would act out causing significant harm to members of the public. Further, although community living is not being considered for Mr. Omot at the current time, it is in his Disposition, and it will be very important that the Hospital has the ability to approve Mr. Omot’s accommodation.

34The Board would also note that there has been significant progress over the last number of months and encourages Mr. Omot to continue to work with the treatment team to achieve his goal of returning to the community. The Board also encourages the Hospital to provide interpretation services to assist in fitness training as well as program involvement.