Ontario Review Board
Re: Scott A. Graham
ORB File No: 8414
Hearing held on: Tuesday, April 8, 2025
Place of hearing: Southwest Centre for Forensic Mental Health Care St. Thomas, Ontario
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. S. Clapp Members: Dr. S. Swaminath Dr. M. Green Mr. R. Bigelow Ms. C. Plyley
Parties Appearing:
Accused: Scott A. Graham Counsel: Mr. S. Gehl
The person in charge of hospital: Counsel: Ms. J. Zamprogna
Attorney General of Ontario: Counsel: Mr. D. Rows
REASONS FOR DISPOSITION
(Dated May 8, 2025)
Introduction:
On September 29, 2023, Scott A. Graham was found not criminally responsible on account of mental disorder (“NCR”) on charges of dangerous operation, break and enter dwelling, and commit assault, all contrary to the Criminal Code. He is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated May 30, 2024, whereby he is discharged from the Southwest Centre for Forensic Mental Health Care (“Southwest” or the “hospital”) with a number of conditions, including that he reside at a specific address, abstain from substance use, consent to psychiatric treatment, refrain from contact with the victims of the index offences, and refrain from attending one of the locations of the index offences.
On April 8, 2025, a panel of the Board convened at Southwest to conduct Mr. Graham’s annual review pursuant to section 672.81(1) of the Criminal Code. Mr. Graham attended the hearing and was represented by counsel.
A Hospital Report dated October 17, 2024 was marked as Exhibit 1, and a Hospital Report dated March 21, 2025 was marked as Exhibit 2. As part of the record, the panel also had correspondence regarding an early hearing request made by the hospital in August 2024, Reasons for Adjournment dated December 18, 2024, and pre-hearing conference reports dated January 21, 2025 and March 25, 2025. It had been decided that all of the relevant issues could be addressed at the annual hearing, therefore an early hearing was never held. In addition to the documentary evidence, Mr. Graham’s attending psychiatrist, Dr. Ajay Prakash, gave evidence.
The issues to be decided at the hearing were whether Mr. Graham continues to meet the test of posing a significant threat to the safety of the public as set out in section 672.5401 of the Criminal Code, and if so, what is the necessary and appropriate Disposition, taking into account the four factors set out in section 672.54 of the Criminal Code.
Position of the Parties:
- At the outset of the hearing the parties were asked for their initial without prejudice positions. On behalf of the hospital, Ms. Zamprogna took the position that Mr. Graham continues to represent a significant threat to the safety of the public, and that a Conditional Discharge remains necessary and appropriate, with the following recommended changes:
a. removal of the residence condition (clause 1(a));
b. change the reporting requirement from not less than two times per month to not less than one time per month (clause 1(b));
c. removal of the condition that Mr. Graham abstain from the non-medical use of alcohol or drugs or any other intoxicant (clause 1(c));
d. removal of all conditions that require Mr. Graham to not contact the victims of the index offences, or attend at their places of residence or work (clauses 1(i) and 1(j)); and
e. removal of the condition that requires Mr. Graham to not attend 900 Jamieson Parkway in Cambridge (clause 1(h)).
Mr. Rows adopted the position of the hospital on behalf of the Attorney General.
Mr. Gehl stated that he did not concede the issue of significant threat, but stated that if the panel concludes that Mr. Graham does represent a significant threat to the safety of the pubic, he joined the position of the hospital.
Findings:
For the reasons that follow, the panel found that there was sufficient evidence to conclude that Mr. Graham continues to pose a significant threat to public safety. The panel concluded that the necessary and appropriate Disposition, which is also the least onerous and least restrictive in the circumstances, is a continuation of the Conditional Discharge, with the changes recommended by the hospital, with one exception. Specifically, the panel agreed that removal of the residence condition and the abstain condition was appropriate, and that it was reasonable to change the reporting requirement to not less than once per month.
However, the panel did not think that removal of the no-contact conditions with the victims was appropriate at this time. Having said that, the panel decided that removal of the condition which required Mr. Graham to stay away from the commercial address was necessary and appropriate in the circumstances.
Index Offences:
The circumstances of the index offences are taken from the Agreed Statement of Facts and are set out in the Hospital Report (Exhibit 2) at pages 3-4. They can be summarized as follows.
On Saturday, February 26, 2022, Mr. Graham was in his residence in Cambridge. He was in a state of escalation and began causing damage to his residence. At approximately 4:04 p.m., he got into his rental car and proceeded to leave the area. By 4:06 p.m., he was driving in a 50km/hr zone when he approached a van driving on the road. Mr. Graham rammed the van from behind and forced it off the roadway, causing it to strike a parked vehicle. Reconstruction showed that Mr. Graham was travelling 104 km/hr at the time of the collision and was not wearing his seatbelt. The driver of the van was able to walk away from the incident, although he attended rehabilitative treatments for two to three months and his vehicle was a write-off.
Immediately after the collision, Mr. Graham exited his vehicle and began wandering around the neighbourhood. He was completely nude at the time. A number of civilians heard the collision and attended the area, where they tried to assist Mr. Graham. Mr. Graham was not cooperative with any of their efforts.
Mr. Graham ran to a nearby plaza (located at 900 Jamieson Parkway) where he entered the Duke and Duchess Bar. Mr. Graham ran naked through the kitchen, broke a plate, and then fled outside where a concerned citizen offered him a ride. This citizen drove Mr. Graham back to the scene of the collision, where he immediately exited her vehicle and re-entered his rental car. He began to drive away until his path was blocked by a tow truck operator. Another tow truck came and blocked him in, and a third vehicle assisted as well.
Mr. Graham then exited his vehicle and began sprinting through the neighbourhood. He ran towards a nearby home. The owner of the home was standing outside and stopped Mr. Graham from entering the garage. However, Mr. Graham ran to the front door, opened it, and tackled the home owner’s wife (a 67-year-old woman) knocking her to the floor. Two other individuals were in the residence and rushed to stop Mr. Graham, who began hitting his head on a window. Mr. Graham was pulled outside by the home owner where firefighters restrained him. The home owner’s wife was taken to the hospital and eventually released.
Police arrived on scene and placed Mr. Graham under arrest at 4:23 p.m. for Dangerous Operation and Unlawfully Enter Dwelling. Mr. Graham was observed to be nude, have pin-point pupils, acting aggressively, and speaking very rapidly. Upon entering the patrol vehicle, Mr. Graham began to groan and stated he was defecating and urinating in the rear of the cruiser while continually yelling at police.
Background:
Mr. Graham’s personal history is outlined in the Hospital Reports in detail and will not be repeated here. In summary, Mr. Graham is a 43-year-old man who owns his home and lives with his partner. He has two siblings who he has good relationships with. His parents live nearby. Mr. Graham graduated from high school and then attended college intermittently between 2006 and 2018, taking courses in business and marketing. He did not obtain a degree. Mr. Graham worked for Bell from 2009 to 2013.
Mr. Graham has a history of substance use. The Hospital Report (Exhibit 2) stated that he reported using methamphetamine weekly beginning at age 18, and stated that it was the reason for his first mental health episode in 2001. After his first psychiatric admission, he attended Homewood Health Centre for two weeks for substance use residential treatment. Mr. Graham reported that he had not used methamphetamine since then.
Mr. Graham did not report problematic use of alcohol or cannabis use, however his partner and family reported that he uses cannabis when in a manic state. Although Mr. Graham denied the use of cannabis prior or during the index offences, he tested positive on the day of the index offences. Medical records also revealed a history of stimulant use and misuse.
Mr. Graham owns his home and is not currently working. He is supported by long-term disability.
Criminal History:
- The Hospital Report (Exhibit 2) stated that prior to the index offences, Mr. Graham had no criminal record although he had been charged with being intoxicated in a public place in 2006, and speeding in 2006 and 2010.
Psychiatric History:
The Hospital Report (Exhibit 2) outlined Mr. Graham’s psychiatric history and will only be summarized here. Mr. Graham was admitted to hospital in 1992 for “behavioural problems” and was diagnosed and treated for Attention Deficit Hyperactivity Disorder (“ADHD”). He required admission to the intensive care unit, was ultimately transferred to a residential treatment program, and was prescribed Olanzapine in the community.
Mr. Graham had three attendances at hospital in 2001 for psychiatric reasons. He was described as “manic and aggressive” with pressured speech and grandiosity, and was diagnosed variably with methamphetamine-induced psychosis, manic phase of manic-depressive illness, and amphetamine-induced mania.
Mr. Graham was admitted to hospital for 10 days in July 2022 while the family was on vacation. He was aggressive and grandiose and was diagnosed with bipolar disorder. Mr. Graham received outpatient care following this.
Mr. Graham was hospitalized at the Centre for Addiction and Mental Health (“CAMH) from January to March of 2013. It was noted that his mental health had been stable for nine years, but had begun to deteriorate during a trip in 2012. Mr. Graham was an involuntary patient at CAMH and had an extremely violent episode where he used a door as a battering ram at the nursing station. He was found incapable of consenting to treatment (which was upheld by the Consent and Capacity Board) and was treated on his parents’ consent. He was diagnosed with bipolar disorder, recent manic episode and was to be followed by his family physician upon discharge.
Mr. Graham had three psychiatric admissions in 2015 as a result of non-compliance with medication and manic symptoms including elevated energy, decreased need for sleep, grandiosity, and intrusive and demanding behaviours. He was consistently diagnosed with bipolar disorder. One physician also noted that Mr. Graham had narcissistic personality traits and used his financial resources to “get away with things” and to “take legal action if people are not compliant with him.”
Mr. Graham was hospitalized twice in 2020. In March 2020, his family took him to the hospital with concerns about mood episodes. In April 2020, police were sent to apprehend Mr. Graham after a video was posted online showing him driving irrationally. On assessment, Mr. Graham was grandiose, demanding, threatening and argumentative, with loud and pressured speech. On both occasions Mr. Graham was restarted on his medications and left hospital against medical advice. Mr. Graham was then followed in the community by a Family Health Team.
In the days and hours leading up to the index offences, the police received four calls about Mr. Graham, from his father, from a person who had received concerning messages from him, and in response to alarms at his house. It was determined that although it appeared that Mr. Graham was suffering from mental health issues, there were no grounds for apprehension.
Mr. Graham was not kept in the hospital following the index offences however he had attendances at his Family Health Team and two hospital admissions in 2022 with symptoms of mania. His discharge diagnoses in May 2022 were bipolar disorder, last episode manic, stimulant use disorder, narcissistic personality disorder traits, and rule out cannabis use disorder. Mr. Graham was described as being “displeased” with medication and discharged himself against medical advice. Mr. Graham was then seen in out-patient psychiatry at Cambridge Memorial Hospital by Dr. O. Awoniyi and was also followed by his family doctor. Mr. Graham appeared to be stable and was functioning appropriately. Mr. Graham remained living in the community under a Judicial Release Order.
After the NCR finding, an out of custody assessment was conducted by Dr. Ajay Prakash on May 1, 2024. It was noted that Mr. Graham minimized his symptoms and exhibited grandiosity. He demonstrated limited insight into the index offences and did not see his mental health diagnosis as a significant factor in his life. He had some insight into the need for treatment, although Dr. Prakash opined that Mr. Graham was highly susceptible to mania (especially under stressful circumstances) because of the sub-threshold medication that was being prescribed. The Risk Summary following this assessment stated the following (at page 47 of Exhibit 2):
“Inconsistencies concerning substance use and treatment adherence underscore a pertinent risk for Mr. Graham. His tendency to overestimate his capabilities while underestimating mental health challenges and substance dependency exacerbates this concern. Though many clinical aspects present minimal risk, his lack of insight, exacerbated by his personality traits and residual symptoms (paranoia and grandiosity), remains worrisome. Urgent reassessment of medication and treatment is essential, particularly given the severity of his index offences and historical issues with insight and structure. This urgent need for intervention is highlighted by his psychiatric history, which somewhat projected the occurrence of violence in his case. The psychosocial dynamics outlined in the historical risk section further compound this risk. His limited awareness of his mental health issues and resistance to treatment plans, coupled with recurrent episodes of decompensation and aggression, warrant heightened supervision beyond his current care team. This expanded support network, including personal support, is crucial for managing his complex needs and reducing community risk.”
Mr. Graham’s initial ORB hearing was held on May 22, 2024 and he was granted a Conditional Discharge. Following this, the hospital requested an early Board hearing in August 2024 as the treatment team was of the view that Mr. Graham’s risk could no longer be managed under a Conditional Discharge and a Detention Order was required. A number of factors led to this request, and the details are outlined in Exhibit 2. However, they included: increasing manic symptoms; booking and going on trips without telling the treatment team; revoking consent to speak with his parents; being controlling and attempting to manipulate the treatment team; urine drug tests that were negative for Olanzapine; and concerns that Mr. Graham’s personal supports were not active agents in his treatment planning and progress as a result of his need for control. The treatment team also considered that Mr. Graham’s home was relatively far from the hospital, and it was the treatment team’s view at that time that the Mental Health Act (“MHA”) was insufficient to manage his risk and protect the public. The risk assessment completed in October 2024 cited Mr. Graham’s “consistent disregard for treatment and lack of insight into his mental health and violence risk” and concluded that his risk would be moderate on a Detention Order while living in the community (at page 74 of Exhibit 2).
The Hospital Reports stated that Mr. Graham’s diagnoses are: Bipolar I Disorder (most recent episode manic); Narcissistic Personality Traits (by history); Post-Traumatic Stress Disorder (by history); and Attention Deficit Hyperactivity Disorder (by history).
Evidence at the Hearing:
The Hospital Report (Exhibit 2) stated that although the treatment team had requested an early hearing (which never occurred), since that time, Mr. Graham’s risk profile has improved. Mr. Graham has complied with the recommendations of the team and his presentation has significantly improved; however, the team continues to have concerns that Mr. Graham’s compliance may be externally motivated and impression management.
The treatment team also had concerns about Mr. Graham’s personal supports not being as strong as initially believed, but some of these concerns were alleviated following multiple interviews with Mr. Graham’s partner and mother. Mr. Graham’s partner was determined to be a well-informed and valuable support. Dr. Prakash acknowledged that there had been some disconnect and/or tolerance by Mr. Graham’s personal supports with respect to his symptoms in the past, but the team felt that they now have a better understanding and insight into issues and concerns, and have a relapse prevention plan in place.
The Hospital Report (Exhibit 2) stated that Mr. Graham’s insight into the index offences is good, and he has an understanding that what happened was very serious. He has developing insight into his mental health diagnosis, but continues to give the impression that it is not as serious as the team believes it is. Mr. Graham’s insight into the need for medication was noted to have greatly improved during his preboard meeting on March 19, 2025, and he recently agreed to a long-acting injectable antipsychotic medication (“LAI”). Mr. Graham takes his oral medications independently (mood stabilizer and antipsychotic medications) and his first injection of Abilify was given on March 3, 2025. Dr. Prakash testified that the second dose was given on April 4, 2025.
Although Mr. Graham is noted to have good professional supports in the community, there was a difference of opinion between his community psychiatrist and his forensic psychiatrist about the need for more robust treatment for Mr. Graham. The decision to optimize the medication came only after a conversation between the two psychiatrists. Mr. Graham also has a family doctor and a psychotherapist in the community.
The Hospital Report stated that Mr. Graham’s diagnosis of substance use disorder is in remission, and Dr. Prakash is of the opinion that it is not an accurate diagnosis at this time. During his testimony Dr. Prakash stated that Mr. Graham did not have sustained use of substances prior to the index offences, but rather it appeared to be compulsive consumption when he was experiencing symptoms of mania. Mr. Graham also has not used substances during the year that he has been under the jurisdiction of the Board.
The HCR-20 completed on March 19, 2025 noted that Mr. Graham’s improvements in insight and symptoms are both very recent and his compliance with medication has not been tested long-term. The Integrated Judgment of Risk (HCR-20 and SAPROF) concluded the following (at page 78 of Exhibit 2):
“Mr. Graham presents a low risk of violent reoffending in the next 12 months in the context of a continuation of his conditional discharge disposition. His protective factors include internal motivation, and external aspects which all support lowering his overall risk. Should he decompensate, it is likely that his established community and personal supports and his internal motivation to seek treatment, along with his improved insight, would effectively mitigate potential risk factors. In addition, his continued demonstration of abstaining from using substances and adaptive coping further mitigates his future risk.” (Emphasis in original)
Dr. Prakash was asked about the change from a moderate risk under a Detention Order in the October 2024 risk assessment, to low under a Conditional Discharge at the current time. He responded that Mr. Graham’s mental status was unstable last year, he was suboptimally treated, and there was no way to bring him into the hospital quickly. Now, Mr. Graham’s mental state is stable, he is on better medications, and the team have a better relationship with him. Dr. Prakash cautioned that these are still early days for these improvements, but he was satisfied that the MHA (Box A only) was sufficient to manage Mr. Graham’s risk at the current time.
The Hospital Report included the following Overall Clinical Assessment of Risk, and Dr. Prakash supported these conclusions during his testimony at the hearing (at page 79 of Exhibit 2):
“It is the opinion of the treatment team that Mr. Graham continues to present a risk of serious physical or psychological harm to members of the public. The following evidence supports this opinion:
Mr. Graham has a serious mental illness, and the index offence was serious in nature. However, with treatment and Forensic support, he has reached and sustained a continued level of stability. Although he has maintained his wellness while living independently in the community, and sought necessary mental health supports to support his continued wellness, this has only been recent and has not been observed over an extended period of time;
Mr. Graham has abstained from substance for several years. There have been no signs of relapse or feeling triggered during these transitions;
Mr. Graham has been adherent to his medication regime this reporting year and has recently added a long-acting injectable medication. However, this has only been a recent development, with his first dose of his injection occurring on March 3, 2025. He has required a significant amount of health teaching about the benefits of adding a long-acting injectable medication to his regime and more time is needed to assess for its overall effectiveness;
Mr. Graham and his supports have only recently developed good insight into his index offence, his mental illness, his ongoing need for treatment and the future risk of violence;
Mr. Graham’s integrated risk is considered low as he demonstrated key protection from future risk and appears internally motivated; and
Mr. Graham has strong personal and professional supports. It is hopeful that these supports would be able to provide appropriate intervention in supporting future possibilities of decompensation, as his personal supports have had difficulty identifying symptoms of decompensation in the past.”
Dr. Prakash testified that he is Mr. Graham’s forensic psychiatrist and he views his role as one of managing risk, providing guidance, and intervening if required. Mr. Graham also has a community psychiatrist, Dr. Awoniyi, who prescribes Mr. Graham’s medications and follows him in the community.
Dr. Prakash acknowledged that it had been a “roller coaster of a year” for Mr. Graham. He explained the reasons for requesting an early Board hearing, and stated that the team saw a “significant shift” in Mr. Graham’s relationship with the team after that. Mr. Graham’s medications were optimized and a significant improvement was noticed by the team and Mr. Graham’s partner. Further progress has been made in light of Mr. Graham’s agreement to receive a LAI. Dr. Prakash stated that it was too early to tell what the full benefits of that will be, but it provides the team with increased confidence around risk management given that noncompliance is not as big an issue.
Dr. Prakash also testified that the treatment team had multiple interviews with Mr. Graham’s partner and they are satisfied that she is well-versed in Mr. Graham’s history, diagnosis, and destabilizers (including energy drinks).
Dr. Prakash stated that the team had considered recommending an Absolute Discharge, but are of the opinion that it is not appropriate at this time. He stated that these are still very early days in the optimization of Mr. Graham’s medications, with him recently agreeing to the LAI. They want to continue to develop the relationship with Dr. Awoniyi, and may make some changes to Mr. Graham’s medications in order to find the lowest dose that is effective using one medication. Dr. Prakash also wants to see how Mr. Graham does if the abstain clause is removed from his Disposition. Further, the team is encouraging Mr. Graham to live his life and travel, as they want to test his stability in various situations while he is under the jurisdiction of the Board.
In terms of removal of the no-contact conditions, Dr. Prakash stated that from a clinical point of view, these were strangers to Mr. Graham, he would not recognize them, and he does not have delusions about them. In response to questions, Dr. Prakash did not know if the victims were aware of the proposed removal of the conditions, and acknowledged that it was possible that harm could come to them. However, Dr. Prakash understood that not being able to attend at the plaza at 900 Jamieson Parkway was an inconvenience for Mr. Graham.
Mr. Graham has owned his own home since 2008 and there have been no issues with him living there, so Dr. Prakash did not think that the residence clause was necessary. He also did not think there was any need for a condition related to travel.
Dr. Prakash testified that the rate of relapse for bipolar disorder depends on the individual, however he noted that Mr. Graham’s history includes multiple relapses in the context of not accepting treatment or being suboptimally treated in the past. Dr. Prakash noted that an increase in Mr. Graham’s medications was recommended at the time of his initial hearing and he was reluctant to accept that. He ultimately agreed to an increase after the team requested an early hearing, and more recently accepted an LAI. In response to a question from Mr. Gehl, Dr. Prakash agreed that it is very hard to predict when a person may have another episode because there are so many variables. He also agreed that a relapse is less likely if Mr. Graham continues on the right medications, however he stated that it was too early to say whether Mr. Graham will continue to take the medications given that he has a long history of nonadherence. Dr. Prakash agreed with Mr. Gehl when he suggested that all that is needed to determine whether Mr. Graham will follow through, and whether he remains a significant threat, is the passage of time.
Dr. Prakash was asked about Mr. Graham’s substance use, and his denial that he used cannabis at the time of the index offences. Dr. Prakash stated that Mr. Graham’s urine drug screen was positive for cannabis after the index offences. He stated that Mr. Gaham uses in periods of decompensation when he is impulsive and engages in risky behaviour. Dr. Prakash stated his opinion that cannabis use, as well as energy drinks, increase the risk of decompensation of bipolar illness significantly.
Dr. Prakash testified that it was his opinion that Mr. Graham’s outpatient supports were not effective until the forensic team intervened, and stated that things are different now. Mr. Graham receives the LAI from his family doctor every four weeks, and sees Dr. Awoniyi every four to six weeks. The forensic team sees him two times per month now, but are recommending that that be reduced to once per month in order to reflect reporting requirements post-forensics. The team are hopeful that this will be sufficient support and supervision for Mr. Graham, but it will take time to see if this is the case. Dr. Prakash also stated that they will continue to communicate with Mr. Graham’s care providers in the community, and stated that they also have access to the electronic records.
Submissions:
Ms. Zamprogna maintained the hospital’s position that Mr. Graham continues to represent a significant threat to public safety. She submitted that Mr. Graham has a recurring mental condition with a high rate of relapse even when treated. The index offences were serious, and involved cannabis use and high speed driving. Mr. Graham has been suboptimally treated until very recently, and it is not yet clear whether the new LAI regime will be effective.
Ms. Zamprogna also submitted that it is not yet clear whether Mr. Graham’s motivation to continue to take medications is externally or internally motivated, especially given that these changes only occurred after the hospital requested an early Board hearing. She noted that medication optimization was suggested at Mr. Graham’s initial Board hearing, and again when he had a turbulent summer last year, and it is only now that he has accepted it. Ms. Zamprogna also submitted that although Mr. Graham’s personal supports appear to more aware and involved now, the history does not point to them being effective at mitigating Mr. Graham’s risk, and this needs to be tested.
Ms. Zamprogna submitted that Mr. Graham’s risk can be managed on a Conditional Discharge with the conditions as recommended by the hospital.
Mr. Rows agreed that Mr. Graham continues to represent a significant physical and psychological risk to the safety of the public. He invited the Board to keep the conditions that require no contact with the victims of the index offences, noting that he had some information that the victims had been interested in the ORB process in the past. Mr. Rows did not take issue with removal of the condition that required Mr. Graham to stay away from 900 Jamieson Parkway.
Mr. Gehl submitted that significant threat had not been made out on the evidence, noting that it is a legal test, not a medical test. He stated that the legal test applies now, not two years from now, and submitted that the doctor’s evidence was that Mr. Graham was not a risk to public safety now. Mr. Gehl submitted that the fact that the doctor needs more time is not enough to make the case that a person is a significant threat. There is no framework in law that says how long a person needs to show the Board that they are stable. Mr. Gehl submitted that all of the factors stated in the clinical assessment of risk in the Hospital Report have been addressed at the current time, and stating that it needs to be seen whether they will continue to be addressed is not sufficient.
In reply, Ms. Zamprogna submitted that the risk that something may happen in the future is relevant to the consideration of significant threat.1
Analysis and Conclusions:
Based on the Hospital Reports and the evidence of Dr. Prakash, the panel concluded that Mr. Graham continues to represent a significant threat to the safety of the public. The panel accepted Dr. Prakash’s expert evidence, and agreed with the submissions of counsel for the hospital.
In coming to this conclusion, the panel carefully considered the decision of the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625 (“Winko”). In that case, the Court stated that a significant threat to the safety of the public must be: more than speculative in nature and supported by the evidence; significant, in the sense of there being a “real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying”; and the conduct giving rise to the harm must be criminal in nature. Further, the Court stated that there must be a positive finding of a significant threat to the safety of the public in order to support restrictions on an NCR accused’s liberty. Anything else, for example uncertainty, cannot suffice.
In the Winko case, the Supreme Court of Canada also stated that in coming to a conclusion on the issue of significant threat, a Review Board should closely examine a range of evidence including the circumstances of the original offence, the past and expected course of the accused’s treatment, the present state of the NCR accused’s mental condition, and the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community, and the recommendations provided by experts who have examined the NCR accused.
Mr. Graham has a significant history of decompensation related to his major mental illness, Bipolar Disorder. He had numerous hospitalizations as a result of severe manic symptoms, and at times required police intervention and treatment in intensive care units. He frequently left hospital against medical advice and discontinued medications. This cycle continued for many years, albeit there were lengthy periods where Mr. Graham functioned well. Mr. Graham’s decompensation in 2022 led to the index offences which were serious. They involved driving at an excessive speed, a car accident, public nudity, and assault of an older woman in her home.
The evidence was clear that Mr. Graham’s insight into his illness, the index offences, and the need for medication has been poor for a long time, and it is only very recently that it has begun to develop. It is unclear at this early juncture whether that change is a result of improvement in symptoms and internal motivation, or whether it is a result of external motivators, including the fact that the hospital was looking to place Mr. Graham on a Detention Order six months ago. The panel was also concerned that Mr. Graham continues to minimize the seriousness of his illness and the index offences, and his obligations while under the jurisdiction of the Board.
The evidence was also clear that Mr. Graham’s medication is not optimized at the current time, and the effects of the recently introduced LAI will not be known for a number of months. It took Mr. Graham a long time to agree to the team’s recommendations regarding treatment, and it is unclear at this time whether he will continue with them. The treatment team also wants to continue to develop a relationship with Mr. Graham’s outpatient supports, both professional and personal, in light of the fact that they were not sufficient to prevent the index offences from occurring, and it has not yet been proven that they are able to provide the required level of monitoring and risk mitigation going forward. Mr. Graham has only been subject to the jurisdiction of the Board for one year, and as Dr. Prakash stated on a number of occasions during his testimony, these are “early days.”
The panel disagreed with Mr. Gehl’s submission that it is only the current moment in time that should be considered by the Board when considering risk and whether a person is a significant threat to the safety of the public. There are many factors that are taken into account with respect to an evaluation of risk, from both a medical and a legal perspective, and some of those factors are future oriented. Some of the factors identified by the Supreme Court of Canada in Winko acknowledge this, including: the past and expected course of the accused’s treatment; the accused’s plans for the future; and the support services existing for the accused in the community. The expected course of Mr. Graham’s treatment and his response to it is not yet known, nor is the extent of the community supports that he will need going forward. Further, his illness is a cyclical one, as has been demonstrated in the past, and his risk needs to be considered in that context. The panel also noted the statement in the Mott case that evidence of a potential for physical or psychological violence, such as a lack of insight into the index offence and mental illness, concerns over discontinuing medication, and substance use which could result in decompensation, may support a finding of significant threat (at paragraph 10). For all of these reasons, the panel concluded that Mr. Graham continues to represent a significant threat to the safety of the public.
In terms of the Disposition, the panel decided that a Conditional Discharge was necessary and appropriate and the least onerous and least restrictive Disposition for Mr. Graham at this time. The panel accepted that the condition requiring that Mr. Graham reside at his home (clause 1(a)) was not necessary as he owns his home and has not indicated any desire to move. It is also appropriate to remove the abstain clause (clause 1(c)) as Mr. Graham has not used substances this past year and has indicated that he will not use going forward. The condition that he submit samples of urine and/or breath will remain in the Disposition in order to test Mr. Graham’s ability to abstain. The panel also accepted Dr. Prakash’s opinion that a decrease in the reporting requirement from two times per month to one time per month in clause 1(b) was appropriate.
The panel found that removal of the no-contact conditions related to the victims was not appropriate (clauses 1(i) and 1(j)). Mr. Graham’s initial hearing was just last year, and counsel for the Attorney General indicated that the victims had some involvement at that time. That is likely the reason that these conditions are in the Disposition. There was no evidence that the victims were aware that the conditions were being proposed to be removed, and there was also no evidence that Mr. Graham’s liberty was being restricted by these conditions, especially because the victims are strangers to him. Counsel for the Attorney General agreed to look into this for next year, so that if the issue is raised again, the Board can make an informed decision.
Finally, the panel decided that removal of the condition which required Mr. Graham to stay away from 900 Jamieson Parkway (clause 1(h)) was necessary and appropriate in the circumstances.
DATED this 8th day of May 2025, at the City of Toronto, in the Toronto Region.
Suzanne Clapp Alternate Chair
Office of the Registrar Ontario Review Board
Footnotes
- The case of Re Mott, 2019 ONCA 560 was raised by Ms. Zamprogna, and Mr. Gehl provided some submissions on this case as well.