Re Kelly R. Elijah, 2025 CanLII 42658

Ontario Review Board

Re: Kelly R. Elijah (a.k.a. Kelly R. McLean)

ORB File No: 7849

Hearing held on: Wednesday, April 9, 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: Kelly R. Elijah Counsel: Mr. C. Dobson

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:

1. On February 19, 2021, Kelly R. Elijah (a.k.a. Kelly R. McLean) was found not criminally responsible on account of mental disorder (“NCR”) on charges of assault with a weapon (x2), failure to appear or to comply with appearance notice, robbery with a weapon, being unlawfully in a dwelling house, and assault, all contrary to the Criminal Code. She is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated April 29, 2024, whereby she is detained at the Southwest Centre for Forensic Mental Health Care (“Southwest” or the “hospital”) with privileges up to and including community living in Elgin/Middlesex County in accommodation approved by the person in charge. She is also required to abstain from substance use and not possess any weapons.

2. On April 9, 2025, a panel of the Board convened at Southwest to conduct Ms. Elijah’s annual review pursuant to section 672.81(1) of the Criminal Code. Ms. Elijah attended the hearing and was represented by counsel.

3. The Hospital Report dated March 10, 2025, was marked as Exhibit 1. In addition to the documentary evidence, Ms. Elijah’s attending psychiatrist, Dr. Ajay Prakash, gave evidence.

4. The issues to be decided at the hearing were whether Ms. Elijah 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:

5. 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 Ms. Elijah continues to represent a significant threat to the safety of the public and that a Detention Order remains necessary and appropriate. The hospital was recommending a continuation of the existing Detention Order with a number of changes and additions as follows:

a. an increase in the geographical area for the 72 hour passes in clause 2(d) to Southern Ontario;

b. the addition of indirectly supervised one week passes in Southwestern Ontario in clause 2(e);

c. passes for up to one week, once per year, to travel outside of Canada with an approved person with an approved itinerary;

d. an increase in the geographical area for community living to Southwestern Ontario; and

e. removal of the requirement that Ms. Elijah abstain from the non-medical use of alcohol or drugs or any other intoxicant (clause 3(a)).

6. Mr. Rows agreed with the position of the hospital on behalf of the Attorney General. While Mr. Dobson stated that a Conditional Discharge may be available on the evidence, he was content that the recommended terms allowed Ms. Elijah to pursue her goal of living in the community. There was therefore a joint submission before the panel.

Findings:

7. For the reasons that follow, the panel found that Ms. Elijah 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 Detention Order, with the changes and additions as recommended by the hospital.

8. The panel also ordered that a Gladue Report be prepared before the next annual hearing.

Index Offences:

9. The circumstances of the index offences are stated in the Hospital Report at pages 2-8, but are summarized well in last year’s Reasons for Disposition dated May 10, 2024, as follows (at paragraphs 3-7):

“On June 25, 2019, Ms. Elijah attended a pharmacy in Watford, Ontario. She asked the pharmacist for Oxycontin patches and, when told she did not have a prescription, the pharmacist asked her to leave the pharmacy. She produced a pair of scissors and a knife and stated she would use them if not given the “oxys and patches”. She then physically forced her way past the pharmacist and started grabbing at bottles of pills on the shelves.

She started scratching and biting the pharmacist and the two fell to the floor. While on the floor she bit at boxes of medication and birth control pills, trying to ingest them. Another employee tried to pull her off the pharmacist and was kicked in the stomach as a result. She tried to cut the pharmacist’s foot or shoe with the knife in her possession. Pharmacy employees ceased their efforts to stop the accused, who then began going through the dispensary and the refrigerator, grabbing items and boxes. She drank from a bottle of orange juice used to mix with methadone prescriptions, although it contained no methadone. She fled from the pharmacy and an employee followed her into a shed, where another confrontation occurred. Ms. Elijah ran back to the pharmacy while holding the knife, stating to the pharmacist, “I’ll do it, don’t make me do it”. She then again ran out of the pharmacy, carrying various medications she had taken. No injuries were reported by anyone in the pharmacy.

In the course of her flight away from the pharmacy she entered the back patio door of an apartment and continued inside, running through the apartment and exiting through the front door. She then went into another apartment, pushed her way past the occupant, said she needed to use the bathroom, and entered the bathroom. The occupant called police and the accused left. The occupant found a knife and some drugs in the bathroom. Ms. Elijah was subsequently arrested by police and placed in custody. She had ingested unknown amounts and types of medications.

Ms. Elijah was on bail at the time of the offences, having been placed on bail on November 8, 2019, one condition of which prohibited her from the possession of weapons.

On November 8, 2020, Ms. Elijah approached a donut shop and began to actively swing an object at two males nearby. One of the males sustained a minor scratch on his left ear, the bridge of his nose, and a knuckle. When police approached her, she was observed to have a knife in her hand and she began to stab the tires of vehicles in the parking lot in which she was located. A gunpoint arrest was conducted due to her possession of a knife. During the gunpoint arrest she was observed to walk toward one of the police officers with a knife in her hand, causing the police to deploy a taser, which caused Ms. Elijah to fall to the ground. Following her arrest, she was found to be in possession of a spring-assisted knife, which is a prohibited weapon.”

10. When asked about the circumstances surrounding the index offences, Ms. Elijah stated that she felt suicidal and was hearing voices. She felt she could not handle things and could not explain what happened.

Background:

11. Ms. Elijah’s personal history is outlined in the Hospital Report in detail and will not be repeated here. In summary, Ms. Elijah is a 39-year-old Indigenous woman who is connected to the Kettle and Stony Point First Nations. She has one daughter. Her father died in 2021. Ms. Elijah has four siblings (three half siblings and one full sibling), and she is the youngest.

12. Ms. Elijah’s husband died of cancer at the age of 25 in 2009, and she started to have substance abuse issues following his death. Their daughter was raised by Ms. Elijah’s family members until she was a teenager, however Ms. Elijah supported her financially. Ms. Elijah dated another man for two to three years before his death of a drug overdose in July 2020.

13. Ms. Elijah had no problems with school until grade 10, when she started associating with a different peer group. She dropped out of school, but completed her high school education as an adult. Ms. Elijah worked as a waitress and a house painter before her husband’s death. She is supported by the Ontario Disability Support Program, First Nation Stoney Creek Band Allowance, and the CPP Survivor Pension.

14. Ms. Elijah has a significant history of substance use and addiction. She started drinking alcohol around the age of 16 and using cannabis at age 14. The Hospital Report noted that Mr. Elijah had used oxycodone, psilocybin, cocaine, ecstasy, and LSD, with her drugs of choice being fentanyl and crystal methamphetamine. She often injected drugs openly in the presence of family members, and developed an abscess in her neck as a result of the injections. Ms. Elijah attended rehab for about five to six weeks at her family’s request, but this did not help with her addictions. Ms. Elijah has also been on methadone.

Criminal History:

15. Ms. Elijah’s only criminal history prior to the index offences was a conviction for assaulting a police officer in February 2010.

Psychiatric History:

16. Ms. Elijah had a number of attendances at hospital as a result of drug use and suicidal ideation prior to the index offences, the details of which are set out in the Hospital Report. Of note, Ms. Elijah was hospitalized in January 2018, after she attempted to commit suicide by slashing herself with a kitchen knife and jumping off an overpass on Highway 402 while she was in the midst of a three-day binge on methamphetamine and staying at a women’s shelter. She was placed on a Form 1 under the Mental Health Act (“MHA”) and sustained a severe pelvic injury, a broken ankle, a broken elbow, a closed head injury, and a retroperitoneal bleed.

17. Ms. Elijah was admitted to Southwest on February 26, 2021 following the NCR finding. Her symptoms began to improve with treatment and her participation in programming increased, although her engagement was described as varied. Her sister and mother became Approved Persons and overnight passes with her family went well. Ms. Elijah attended Rainbow Lodge, an Indigenous, culturally based polysubstance abuse residential treatment centre in August 2023, however her insight into her substance use remained limited. Ms. Elijah also participated in other cultural activities such as sewing her own ribbon dress, attending the Indigenous Sharing Circle, and participating in a drum-making workshop.

18. Ms. Elijah transitioned to the in-hospital apartment in November 2023, but the duration of her stay was cut short as she was found to have a cell phone. It was determined at that time that she would require supervised community living. While she demonstrated numerous strengths, she needed reminders about maintaining her medication regimen. It was also noted that Ms. Elijah’s motivation is highly dependent on external reinforcements.

19. The Hospital Report stated that Ms. Elijah’s current diagnoses are: Schizoaffective Disorder (Depressive Type); Substance Use Disorder (in sustained remission); History of Personality Disorder with Borderline, Antisocial and Avoidant Features. She is capable of consenting to treatment.

Evidence at the Hearing:

20. The Hospital Report stated that Ms. Elijah transitioned from the rehabilitation unit in the hospital to St. Leonard’s Society’s Clarke Centre on July 31, 2024. This is a 24/7 supervised six-bed residence providing supportive services to people involved in the forensic system. The goal of the placement is to bolster independent living skills while engaging in reintegrative efforts. Ms. Elijah has not exhibited any psychotic symptoms since moving there, and has been cooperative and adherent to the rules of the Centre. All urine drug screens have been negative.

21. Although much of her time is unstructured, Ms. Elijah has entered the community with other residents, and consistently attends the Southwestern Ontario Aboriginal Health Access Centre every other week where addictions are discussed in a small group. She has also been involved in Biigajiiskaan, a mental wellness program that aims to provide accessible, culturally safe, specialized care for Indigenous peoples with serious mental illness, addictions, and concurrent disorders. Ms. Elijah also had a number of 72 hour and one week passes with her family over the reporting period with no concerns noted.

22. The Hospital Report stated that while Ms. Elijah downplays the severity of her index offences, she has partial insight into them, expressing remorse and recognizing that substance use contributed to her actions. Her insight into her mental illness and the need for treatment has improved, but she is unable to identify any specific symptoms beyond voices and delusions. She recognizes the benefits of medications but continues to request changes and reductions to them due to ongoing side effects. Her insight into her violence risk remains underdeveloped, and she does not think there is any risk that she will commit further acts similar to the index offences. It remains unclear if she is committed to long-term psychiatric treatment.

23. Ms. Elijah was agreeable to switching to a different long-acting injectable antipsychotic medication that has less side effects, and started on aripiprazole on March 5, 2025. Her injections are administered by an outreach nurse.

24. Ms. Elijah’s time at the Clarke Centre is time limited, therefore the team has begun to explore future housing possibilities with Ms. Elijah. She has completed applications and is on waiting lists for several apartments in Lambton County and London-Middlesex Counties. Ms. Elijah would like to live closer to her mother in Watford. Dr. Prakash testified that there has also been a new development with potential housing in Sarnia through Ontario Aboriginal Housing Services. The treatment team is not sure what level of supervision Ms. Elijah will require going forward, but Dr. Prakash testified that on-site staff would be required.

25. Ms. Elijah has been abstinent from substances while under the close supervision of the forensic system and is proud of her sobriety. The Hospital Report stated the following about Ms. Elijah’s views about substance use (at page 46):

“Ms. Elijah generally denied cravings to use substances, citing that her cravings for opioids are well controlled on her current Methadone maintenance treatment. She has mentioned that she would like to use medical marijuana for pain when able to as per her disposition and if the team agrees to it. She acknowledges that substance use exacerbates symptoms of her mental illness and has stated “I know where that puts me in my life and what can happen - mainly that I don't want to go back to using or being homeless and I never want to be in that spot in my life.” On February 4, 2025, when asked about crystal meth use, Ms. Elijah stated she was “pretty much done with it" and noted that when she sees others using in the community she thinks how "bad" they are and does not want to go down this road.

On February 11, 2025, when asked about plans for future substance use if the abstain clause was removed from her Disposition, Ms. Elijah stated that she would use "a little bit" of alcohol which she further described as "a couple glasses of wine". She stated she would use only on special occasions and would not drink more than two glasses. She stated she had no intention of becoming intoxicated. Regarding future cannabis use, Ms. Elijah stated she might also use "a little bit" of "low dose" cannabis but then stated, "I don’t even know if I would to tell you the truth" (meaning she doesn't even know if she would use cannabis) and highlighted that her family does not use cannabis.”

26. The Hospital Report included the following rationale for the need for a Detention Disposition at the current time, especially if the abstain clause is removed (at page 64):

“Ms. Elijah has done well in the forensic system and has improved cognitively and adaptively, and her risk remains low in a supervised setting, but it increases with less supervision. The team believes that a detention disposition remains necessary and appropriate given the uncertainty of her future. Ms. Elijah will eventually move out of Clarke Centre which will be a significant period of testing her ability to cope. As well, the removal of the abstain clause would be a significant test in her ability to maintain abstinence or maintain mental stability should she choose to use alcohol or cannabis. Within the next reporting period, there is a chance that she could move out of Clarke Centre into a less supervised accommodation. This, change in her living situation, coupled with a likely further medication optimization, could lead to increased symptoms, instability and poor coping, as it has historically. The hospital requires the ability to approve her accommodations and requires the Warrant of Committal to bring her back to the hospital proactively rather than reactively.”

27. The Hospital Report stated that the geographical expansion of the 72 hour passes is so that Ms. Elijah can visit her daughter at university. The one week travel pass outside of Canada is so that she may go on a vacation with her family. The geographical expansion for community living is to allow for greater housing opportunities and the potential to reside closer to her mother.

28. Dr. Prakash testified that he has been Ms. Elijah’s outpatient psychiatrist since September 2024. Ms. Elijah has done well at the Clarke Centre where her meals are provided and her medications are dispensed and observed. She has not used substances, nor exhibited any symptoms of her schizoaffective disorder or personality traits. She is engaged and present with the team.

29. Dr. Prakash explained that Ms. Elijah’s medications are not yet optimized because she was very recently changed to a different long-acting injectable medication in order to try to alleviate some of the side effects that she was experiencing. It is still early days for this change and more time is needed to see if it is effective and tolerated. Dr. Prakash also stated that Ms. Elijah has changed from suboxone to methadone for her cravings and pain. She has reached a level of trust with the Methadone Clinic where she is now provided with a week’s supply of the drug which she takes on her own. Dr. Prakash confirmed that the reason for the recommendation to remove the abstain clause is to test Ms. Elijah’s ability to abstain from substance use in the community while she is on a Detention Order.

30. Dr. Prakash was asked about the findings in the Hospital Report that Ms. Elijah’s intellectual functioning is in the low average range. Dr. Prakash responded that her cognition and adaptability have improved over the last year, and that part of the impairments may have been related to her untreated mental condition.

Analysis and Conclusions:

31. Based on the Hospital Report and the evidence of Dr. Prakash, the panel concluded that Ms. Elijah remains a significant threat to public safety. Ms. Elijah suffers from a severe major mental illness and has a significant history of substance abuse. While her insight has improved, there is still room for improvement in key areas such as the need for long-term psychiatric treatment. Ms. Elijah’s ability to cope with stressors in the community has not been sufficiently tested, and her ability to recognize any decompensation, seek appropriate treatment, and develop strategies to minimize escalation of violent behaviours remains limited.

32. The panel accepted the re-offence scenario set out at page 72 of the Hospital Report, and found that absent the supervision and support of the ORB, Ms. Elijah is likely to fall away from treatment and return to substance use to cope with stressors. This would lead to an exacerbation of her symptoms including paranoia and disorganization, which is likely to lead to violence toward members of the public, similar to what occurred at the time of the index offences.

33. The panel accepted the joint submission that a continuation of the Detention Order, with the changes and additions recommended by the hospital was necessary and appropriate, and the least onerous and least restrictive Disposition in the circumstances. Ms. Elijah has progressed well recently and is now in a period of transitions. Her medication was recently changed and time is still needed for optimization. She is hoping to be able to move to a new residence closer to her mother. Significantly, the abstain clause is being removed to test how Ms. Elijah does in the community with less restrictions and a potential increase in access to substances.

34. Ms. Elijah’s current housing is time-limited, and housing options are being explored, however the treatment team is not yet clear what level of supervision she will require going forward. The hospital needs to retain the ability to approve the housing for Ms. Elijah to ensure that it has the appropriate level of support and supervision for her. The hospital also requires the ability to bring Ms. Elijah back to the hospital expeditiously in the event that she experiences a decompensation in the community, especially during this period of transitions.

35. The panel agreed with the parties that increasing the geographical area for passes and community living was appropriate, as was the addition of indirectly supervised passes. It was also appropriate to grant the privilege of being able to travel abroad with her family given that Ms. Elijah has consistently done well with passes with her Approved Persons. These are important steps in her reintegration into the community.

36. Finally, in light of Ms. Elijah’s Indigenous heritage and consistent involvement with Indigenous organizations, the panel ordered that a Gladue Report be prepared in advance of the next hearing.

DATED this 8^th day of May 2025, at the City of Toronto, in the Toronto Region.

Suzanne Clapp Alternate Chair

Office of the Registrar Ontario Review Board