Re: Dwayne Robert Palmer
ORB File No: 6774
Hearing held on: Tuesday, April 8, 2025
Place of hearing: Waypoint Centre for Mental Health Care Via Zoom Video-conference
Pursuant to: Sections 672.48(1) and 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Ms. L. Banks
Members: Dr. R. W. Hill Dr. J. Cheston Ms. K. Tomaszewski Ms. K. Brisson
Parties Appearing:
Accused: Dwayne Robert Palmer Counsel: Mr. M. A. Moon
The person in charge of hospital: Counsel: Ms. J. Lefebvre
Attorney General of Ontario: Counsel: Ms. J. Armenise
REASONS FOR DECISION
(Dated May 8, 2025)
Introduction:
1. On May 12, 2015, Mr. Dwayne Palmer was found not criminally responsible on account of mental disorder (“NCR”) on two charges of second-degree murder, contrary to the Criminal Code of Canada (“Criminal Code”). Mr. Palmer is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated December 4, 2024, ordering that he be detained at the Waypoint Centre for Mental Health Care – High Secure Provincial Forensic Programs, Penetanguishene (“Waypoint”). Pursuant to this Disposition, he is granted discretionary hospital and grounds privileges, beyond the secure perimeter, escorted by staff.
2. By letter dated February 26, 2024, Waypoint notified the Board that, pursuant to s. 672.56(2) of the Criminal Code, Mr. Palmer’s liberty had been restricted as he entered seclusion on February 18, 2025 and this seclusion continued until the hearing date.
3. On April 8, 2025, a panel of the Board convened a hearing by Zoom video-conference to review the restriction of Mr. Palmer’s liberty, pursuant to s. 672.81(2.1) of the Criminal Code. Mr. Palmer attended the hearing with the assistance of his counsel, Mr. Moon.
4. The issue at this hearing is whether the hospital’s decision to restrict Mr. Palmer’s liberty was necessary, appropriate and the least onerous and least restrictive intervention available to the hospital in the circumstances, both initially at the time of the imposition of the seclusion order and throughout its duration.
5. For the reasons set out below and based on the expert evidence and opinions before it, the Board concluded that the initial restriction of liberty was warranted, necessary and appropriate, as is his ongoing restriction of liberty up to the hearing date. The Board found these restrictions were necessary for public safety, and they represented the least onerous, and least restrictive, intervention available in the circumstances, both initially and ongoing.
Position of the Parties:
6. At the outset of the hearing, the parties were canvassed as to their positions. Counsel for the hospital and for the Attorney General submitted that the initial restriction of Mr. Palmer’s liberty occasioned by placing him in seclusion was warranted, necessary and appropriate, as was the ongoing restriction of his liberty throughout the duration of his seclusion to the hearing date.
7. Counsel for Mr. Palmer advised that he wished to hear the hospital’s evidence before making any recommendations to the Board. In final submissions, Mr. Moon advised that he was not opposing the initial or ongoing restriction of his client’s liberty; however, he expressed concern about the duration of the period of seclusion going forward. Mr. Moon recommended that the team re-investigate with his client whether Mr. Palmer might reconsider treatment with antipsychotic medication. He also encouraged the hospital to make other opportunities for seclusion relief, beyond just access to showers, available to Mr. Palmer. Finally, Mr. Moon suggested that perhaps the Board could order another early review of his client’s ongoing seclusion.
8. All parties confirmed that there was no request to review the terms of Mr. Palmer’s current Disposition. Further, both counsel for the hospital and the Crown maintained their respective initial recommendations to the Board in closing submissions.
Index Offence:
9. The incidents giving rise to the above noted charges are extracted from the Board’s Reasons for Disposition dated December 27, 2024, as follows:
“At the time of the two homicides, Mr. Palmer was 28 years old, lived with his mother and had been unemployed for three years. According to him, on the day in question, he left his house with two knives with the intention of committing suicide. He took a series of buses via downtown Brampton to the Bramalea City Centre, on to the Westwood Mall in Mississauga, then to Toronto and then back to the Westwood Mall. He returned to Brampton and got off the bus near the Red Maple Plaza. He claims that before leaving his home, he filled a water bottle with a mixture of vodka and rum and drank from it while on the bus. Just before arriving at the plaza, he took some Tylenol 3 tablets containing codeine.
At the plaza, Mr. Palmer was observed approaching the 52-year-old female who was unknown to him. He took possession of her keys; she resisted, and he stabbed her four times in the back. He approached her, bent over her body and looked at her and then turned the knife on himself. The female deceased’s 53-year-old husband, who was also unknown to Mr. Palmer, came to her aid and had an altercation with Mr. Palmer during which he was stabbed seven times. He is also now deceased. Witnesses then saw Mr. Palmer stab himself in the throat several times. After the police arrived Mr. Palmer slit his own throat causing a deep cut. As he attempted to slit his throat a second time, a police officer tasered him thereby disabling him. A police officer at the scene heard Mr. Palmer say, “I’m dying, I’m dying.” An attending paramedic stated that he heard Mr. Palmer make the following statements more than once: “I’m going to die today” and “I am not going to die today.”
Personal History:
10. Mr. Palmer’s background and personal history are set out in detail in the Hospital’s Report to the ORB dated November 28, 2024 (the “Hospital Report”) and in the Board’s Reasons for Disposition dated December 27, 2024. Briefly summarized, he is a 45-year-old man who was born in Toronto but moved to Brampton sometime between the ages of two and four years old. He was raised by both parents until he was nine years old and, after their separation, he lived with his mother for a period of time and then went to live with his father when he was awarded custody. Mr. Palmer remained with his father until he was 13 years old and thereafter, moved back to his mother’s home on a full-time basis. He has a number of step-siblings.
11. The highest level of education achieved by Mr. Palmer is Grade 8; however, at age 20, he attended an adult education program where he completed courses in computers. Thereafter, Mr. Palmer worked in a variety of temporary general labour positions for many years.
12. He has never been married and does not have any children. Mr. Palmer has no contact with any of his family members other than his mother.
13. He first tried alcohol in high school but said it was on an occasional basis. He also began to smoke marijuana at age 15 and eventually, this became a daily habit. He has also experimented with cocaine and ecstasy.
Legal History:
14. Mr. Palmer incurred a variety of charges as a youth including charges for assault, uttering threats, theft under $1000, robbery, break and enter and theft, assault with a weapon, assault causing bodily harm, assault a police officer, possession of a prohibited weapon, possession of property obtained by crime and failure to comply.
15. Of note, Mr. Palmer’s weapons related charges as well as his 1995 conviction for robbery, involve the use of knives. He was 15 years old when these incidents occurred. On one occasion in 1995, he stabbed a classmate using a small jack knife. Also in 1995, he was arrested along with a friend for robbing a taxicab driver with a knife.
16. As an adult, details of his charges and their dispositions are set forth in the Hospital Report and they include charges for assault, driving while impaired, assault peace officer, uttering threats, assault causing bodily harm, and failure to comply.
17. The index offences occurred on April 30, 2008. At that time, Mr. Palmer was 28 years old and residing at his family’s home in Brampton. He was not working. For two months prior to the index offences, he began to isolate in his bedroom and would not converse with his mother.
18. Mr. Palmer was initially found unfit to stand trial due to his major mental illness. He was eventually found fit and on November 3, 2010, was found guilty of two counts of second-degree murder and sentenced to life in prison with no parole eligibility for 20 years. Mr. Palmer was then incarcerated in the Federal Correctional System until January 8, 2013. On December 19, 2012, the Ontario Court of Appeal ordered Mr. Palmer transferred to the Brockville Mental Health Centre for assessment of criminal responsibility.
19. On May 12, 2015, the Court of Appeal allowed an appeal by Mr. Palmer and his convictions were set aside and a verdict of NCR was substituted. Ultimately, Mr. Palmer was admitted to Waypoint on July 29, 2015. He was transferred to St. Joseph's on March 7, 2019 pursuant to an ORB Disposition dated September 26, 2018.
Psychiatric History:
20. Details of the onset of Mr. Palmer’s mental illness and first contacts with mental health services are vague and uncorroborated by clinical records relating to psychiatric admissions. Mr. Palmer recalls seeing a psychiatrist in his adolescence and being diagnosed with Schizophrenia. He recalls being prescribed medication which he took for a few months. He denies any other mental health contacts prior to the index offences.
21. Following the index offences Mr. Palmer was extremely unwell and was found unfit to stand trial. He was described as mute, disorganized, requiring seclusion, and smearing feces on the walls. In 2010 he was unmanageable in jail and required a padded seclusion cell. Mr. Palmer was admitted to Waypoint on July 29, 2015 following the NCR finding. He was described as catatonic and isolative. By 2019 he had started to engage, although he remained seclusive to his room. He had poor insight into his mental illness and maintained that he did not need medications and should be discharged. Over time, Mr. Palmer became “passively cooperative” with treatment but did not acknowledge any symptoms of a mental disorder.
22. Mr. Palmer was transferred to SJHCH on March 7, 2019. At the most recent ORB hearing on September 12, 2024, Mr. Palmer was described as stable, compliant with medication, reclusive to his room. All urine drug screens had been negative and he denied any perceptual disturbances. He used privileges appropriately including 96-hour passes to his mother’s home in Brampton, to attend work, and to exercise at the gym at Mohawk College. He had recently started working as a dishwasher at a restaurant in Hamilton.
23. Mr. Palmer had been offered a bed with the Transitional Housing and Rehabilitative Program and it was expected that he would be gradually transitioned to Emmaus Place within the next few months.
24. On November 19, 2024, Mr. Palmer engaged in an unprovoked attack on his attending psychiatrist, Dr. Y. Alatishe, with a weapon that he had concealed on his person. Mr. Palmer continued his assault on the doctor by punching and kicking the doctor until the doctor was able to get to the door and escape from the room. A Code White was immediately called and when additional staff and security arrived on the scene. Mr. Palmer was escorted to the seclusion room. As a result of this incident, Mr. Palmer has a pending charge of Assault with a Weapon.
25. Mr. Palmer was transferred to Waypoint on February 18, 2025.
Current Diagnoses:
26. Mr. Palmer’s current diagnoses are:
Schizophrenia;
Antisocial Personality Disorder; and
Cannabis Use Disorder, in sustained remission in a controlled environment.
Evidence at the Hearing:
27. The evidence at this hearing consisted of the Hospital Report, the Restriction of Liberty Report dated March 17, 2025 (“ROL Report”) as well as the viva voce evidence of Dr. W. Komer, who has been Mr. Palmer’s attending psychiatrist since his admission to Waypoint and is a co-author of the ROL Report which was filed as an exhibit. Dr. Komer stated that there have been no material updates since the date of the preparation of the ROL Report.
28. Dr. Komer advised that Mr. Palmer is currently not being treated with antipsychotic medication. Mr. Palmer last received an injection of his long-acting antipsychotic (“LAI”) medication on November 19, 2024. Dr. Komer advised that Mr. Palmer declined further LAIs while detained at Hamilton-Wentworth Detention Centre (“HWDC”). Dr. Komer reported that Mr. Palmer currently denies experiencing any psychotic symptoms and he has not been observed to be experiencing same. At the present time, the Waypoint treatment team is not recommending Mr. Palmer receive any psychotropic medications as Mr. Palmer has asked that he be able to demonstrate to the team that he can manage his behaviours without medication. Mr. Palmer is currently presumed capable to make treatment decisions.
29. Dr. Komer advised that Mr. Palmer questions his diagnosis of Schizophrenia.
30. On his admission to Waypoint, Mr. Palmer was placed in seclusion due to his high risk of physical aggression. A Crisis Prevention Plan (“CPP”) was developed with the assistance of a behavioural specialist in order to manage Mr. Palmer’s risk. The CPP included a plan for the use of wrist/waist restraints for seclusion relief periods and a minimum of four staff to facilitate seclusion relief.
31. Mr. Palmer’s CPP was reviewed on March 5 and 10, 2025. On March 10, 2015, high risk showers, which permit Mr. Palmer to use the shower area in the seclusion corridor independently and without restraints, were incorporated to his CPP. Mr. Palmer has accepted seclusion relief for the purpose of high-risk showers on a number of occasions, without restraints. On these occasions, he is not in contact with other patients or general unit staff (beyond seclusion relief staff) as the area is locked down.
32. The ROL Report indicates that; “At Waypoint, seclusion orders are reviewed daily. Further, secluded patients are seen by an independent psychiatrist (not the patient’s most responsible physician) for review and assessment at the 72-hour post-seclusion mark, seven days post-seclusion, and then every subsequent 28 days. Secluded patients presenting appropriately following assessment of their mental status are provided individual opportunities for seclusion relief.”
33. The most recent independent review of Mr. Palmer’s seclusion status was conducted on March 18, 2025 by Dr. Mishra. Dr. Komer advised that all independent seclusion consultations have opined that Mr. Palmer’s seclusion has been necessary to mitigate his risk.
34. Immediately following Mr. palmer’s transfer to Waypoint and the initiation of his seclusion, specifically from February 19 to 25, 2025, Mr. Palmer would either not engage with Waypoint staff or he was dismissive towards them when they approached him to engage him in conversation and offer him seclusion relief periods. The doctor commented that Mr. Palmer’s lack of engagement and cooperation with hospital staff had made it very difficult to assess his mental state and the level of risk he presented with. For those reasons, seclusion relief was not able to be exercised during that time frame.
35. The ROL Report indicates that when Mr. Palmer was offered seclusion relief on March 1, 2, 5, 8, 11, 14, and 15, 2025, Mr. Palmer refused, despite staff encouraging him to utilize same. Interestingly, on March 10, 2025, Mr. Palmer reported to Dr. Komer that he had regularly exercised seclusion relief every time it was offered to him. Dr. Komer commented that was not at all accurate. Dr. Komer advised that the team has repeatedly encouraged Mr. Palmer to engage with the clinical team and participate in seclusion relief periods but he most often declined.
36. Mr. Palmer did participate in seclusion relief on February 26 and March 3, 4, 7, 10 and 13, 2025. Mr. Palmer is typically calm during seclusion relief periods but he minimally engages in any in-depth conversation or assessment with staff members. Of note, seclusion relief was unavailable on March 6, 9, 12, and 16, 2025 due to operational needs related to staffing.
37. According to the ROL Report, “Mr. Palmer’s lack of engagement with the clinical team, his unprovoked violence and refusal to discuss this incident at SJHH, and periodic intense staring, contribute to his ongoing seclusion.” Dr. Komer stated that at the present time, Mr. Palmer will most often communicate with staff in an appropriate manner so there has been some improvement in that regard.
38. Most often when questioned, Mr. Palmer indicates that he does not remember anything about the alleged assaultive incident with Dr. Alatishe. Dr. Komer’s opinion is that Mr. Palmer has extremely underdeveloped insight into why he engaged in unprovoked and unpredictable aggressive behaviour against his prior psychiatrist.
39. Mr. Palmer has repeatedly said that “…he can control himself, will not harm others, and does not need medication”. Despite these statements, Dr. Komer does not have confidence in Mr. Palmer’s ability to self-regulate his behaviours at the current time.
40. In response to questions from Mr. Moon suggesting that while the charges against Mr. Palmer are not yet resolved, it would be prudent for him to not comment on same as his comments to Dr. Komer might not be considered privileged and/or confidential, Dr. Komer responded that Mr. Palmer has not overtly expressed that concern.
41. Dr. Komer advised that Mr. Palmer has not been physically assaultive nor has he made any threats of aggression throughout his period in seclusion. However, he has presented with irritability, dismissiveness and some hostility. The doctor stated that given Mr. Palmer’s significant history of violence and the team’s intermittent inability to fully assess his mental state due to his refusal to engage, the team’s approach has been cautious and gradual. In the doctor’s opinion, Mr. Palmer’s seclusion has been necessary for safety of staff and co-patients.
42. Mr. Palmer is detained in a single room which has a mattress on the floor and a window. He is able to eat his meals in his room. He has opportunities to interact with hospital staff who appear at his door, many times throughout each day. As well, near hourly on a daily basis nursing staff conduct visual checks on him. Mr. Palmer also has meetings approximately 1-2 times weekly with Dr. Komer. The doctor advised that no formal psychotherapy is being conducted at this time but Mr. Palmer has had an opportunity to meet, on at least one occasion, with a spiritual advisor.
43. Mr. Moon asked why seclusion relief with wrist and/or ankle restraints has not been offered to allow Mr. Palmer to possibly exercise seclusion relief to engage in other activities, such as watching television and/or interacting with co-patients, or accessing the secure courtyard. Dr. Komer stated that he would discuss these suggestions with the treatment team.
44. In terms of his therapeutic relationship with Mr. Palmer, Dr. Komer stated that it is developing appropriately and that most often, Mr. Palmer will engage in conversations with Dr. Komer.
45. Dr. Komer stated that Mr. Palmer currently presents a “high risk” of unpredictable, unprovoked, physical violence to others. Dr. Komer stated that the clinical team at St. Joseph’s thought that Mr. Palmer’s risk was likely not be driven by psychotic symptoms. Dr. Komer characterized Mr. Palmer’s risk as “explosive” and “unpredictable” and it warranted the approach of the hospital to move forward on a cautious and gradual basis.
46. When questioned by a panel member with regard to what would be expected before the treatment team would cancel the current seclusion order, Dr. Komer responded that the team would hope to see Mr. Palmer:
evidence stability in his mental state;
not engage in episodes of verbal or physical violence;
engage consistently with treatment team members;
use periods of seclusion relief regularly, appropriately, and in an increasingly liberal manner; and
express improved insight into the trigger(s) for his unpredictable violence.
47. No further evidence was called by the parties.
Analysis and Conclusions:
48. Pursuant to the decision of the Ontario Court of Appeal in R v MLC (2010 ONCR 843), as well as Regina v Campbell (2018 ONCA 141), the Board agreed that a restriction of liberty had taken place. The Board found that the initial restriction of liberty, on February 18, 2025, represented the least onerous, and least restrictive, intervention in the circumstances and it remained so throughout its duration until the hearing date. The restriction of liberty was warranted and necessary for public safety.
49. The Board finds that while secluded at Waypoint, Mr. Palmer’s liberty status is such that he is unable to leave his seclusion room without being permitted to do so by staff. He is unable to move around the unit freely. The Board finds that Mr. Palmer’s inability to exercise his discretion and to move freely out of the seclusion room within the unit is a significant restriction of his liberties and it has remained so for the duration of his time in seclusion.
50. The Board finds that Mr. Palmer’s initial placement in seclusion was warranted, necessary and appropriate, as well as the least restrictive and least onerous intervention available in the circumstances to safely manage his risk of harm to others. Mr. Palmer has a documented history of unpredictable aggression and was recently ordered transferred to Waypoint as a result of an unprovoked and unpredictable attack on his attending psychiatrist at St. Joseph’s.
51. While detained in seclusion, Mr. Palmer has been offered seclusion relief on a near daily basis, typically on more than one occasion daily. On some occasions, he has declined seclusion relief and, on some occasions, he has been assessed as unable to safely exercise seclusion relief due to his behavioural presentation or the inability of staff to conduct a thorough mental status assessment because Mr. Palmer at times, will not interact with staff. At times, he has been dismissive and hostile to staff.
52. The panel notes that throughout Mr. Palmer’s seclusion, the hospital’s seclusion protocols have been implemented and Mr. Palmer’s seclusion has been reviewed regularly by an independent psychiatrist in accordance with those protocols. On all reviews, Mr. Palmer’s seclusion has been found to be necessary and appropriate to safely manage his risk of harm to others.
53. The expert evidence also establishes that while in seclusion, Mr. Palmer is supported by regular staff interaction at his door daily. In addition, he has been in contact with Dr. Komer on a weekly basis and has been regularly assessed by the hospital’s independent psychiatrists.
54. We note that on all occasions when Mr. Palmer has exercised seclusion relief periods, he has behaved appropriately and he did not present with verbal or physical aggression.
55. The panel hopeful that the treatment team will employ all resources at their disposal, including the possible use of a behavioural therapist, to devise and implement a plan to incentivize Mr. Palmer to utilize seclusion relief (beyond simply accessing shower facilities) at all available opportunities in order to demonstrate his ability to do so safely.
56. It was not clear to the panel based on Dr. Komer’s evidence whether or not Mr. Palmer is being offered seclusion relief to access secure areas within the unit beyond shower facilities. In the panel’s assessment, more liberal opportunities to exercise seclusion relief periods will assist Mr. Palmer to progress to a point where his seclusion can be terminated provided same can be exercised safely.
57. The Board has concluded, based on the evidence before us, that the hospital’s decision to significantly increase Mr. Palmer’s restriction of liberty on February 18, 2025, by placing him in seclusion, and his ongoing detention in seclusion, until the hearing date, was the least onerous, and least restrictive option, and it was warranted for public safety.
58. We have considered the need to protect the public from dangerous persons, the mental condition of Mr. Palmer, his reintegration into society and his other needs.
DATED this 8th day of May 2025, at the City of Toronto, in the Toronto Region.
Ms. L. Banks Alternate Chairperson
____________________________ Office of the Registrar Ontario Review Board