Re: Adam Chatterson
ORB File No: 8734
Hearing held on: Tuesday, April 29, 2025
Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas, ON
Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. R. Steinberg
Members: Dr. T. Verny
Dr. M. Kalia
Ms. K. Tomaszewski
Ms. C. Plyley
Parties Appearing:
Accused: Mr. Adam Chatterson
Counsel: Ms. N. Circelli
The person in charge of hospital: Counsel: Ms. J. Zamprogna
Attorney General of Ontario: Counsel: Ms. K. Dalrymple
REASONS FOR DISPOSITION
(Dated May 13, 2025)
Introduction
On January 31, 2024, the accused, Mr. Chatterson, was found unfit to stand trial (“unfit” or “unfit to stand trial”) on Criminal Code (“Code”) charges of resist or willfully obstruct a public/peace officer; mischief in relation to property under $5,000; uttering threats to cause death or bodily harm; and sexual assault (the “alleged offences”). Mr. Chatterson was admitted to the hospital on February 5, 2024, pursuant to a court-issued treatment order. He was found fit to stand trial by the Court on April 3, 2024, and was returned to the hospital on a keep fit order. On February 5, 2025, the Court found Mr. Chatterson unfit to stand trial for the alleged offences.
The Honourable Court did not make a disposition and remitted the matter for a hearing before the Ontario Review Board (the “Board” or “ORB”). Mr. Chatterson was returned to the Southwest Centre for Forensic Mental Health Care (the “hospital”) pending the ORB hearing.
On April 29, 2025, a panel of the Board convened to conduct a hearing pursuant to sections 672.47(1) and 672.48(1) of the Code. The issues to be determined by the Board are whether Mr. Chatterson is fit to stand trial as of the date of the hearing, and if found to be unfit to stand trial, to determine the necessary and appropriate disposition, which is also the least onerous and least restrictive, taking into account the factors set out in section 672.54 of the Code.
Dr. J. Quinn, Mr. Chatterson’s attending psychiatrist, testified on behalf of the hospital. Dr. Quinn adopted the contents of the Hospital Report (the “Hospital Report”) dated April 4, 2025 (marked as an Exhibit). The Board had before it the oral testimony of Dr. Quinn, the Hospital Report, and several other documents and reports including a transcript of the February 5, 2025, fitness hearing.
Position of the Parties
At the outset of the hearing the parties were canvassed with respect to their initial positions. Counsel for the hospital, Ms. Zamprogna, submitted that Mr. Chatterson remained unfit to stand trial as of the date of the hearing, and that the necessary and appropriate disposition is a detention disposition with privileges including entering Elgin County indirectly supervised, as set out in the Hospital Report.
Counsel for the Attorney-General, Ms. Dalrymple, adopted the hospital’s submission.
Counsel for Mr. Chatterson, Ms. Circelli, indicated that Mr. Chatterson had instructed her to take the position that he is fit to stand trial and should be returned to court. Ms. Circelli took no position with respect to the appropriate disposition in the event that the Board finds Mr. Chatterson to be unfit to stand trial.
In closing submissions, Counsel for the hospital and the Attorney-General maintained their initial positions. Counsel for Mr. Chatterson in her closing submissions indicated that she had instructions to take the position that Mr. Chatterson is fit to stand trial; that he does not have a mental disorder; that he has no need for treatment of a mental disorder; and that he would like to return to court.
Findings
- For the reasons that follow, the Board finds that Mr. Chatterson continues to be unfit to stand trial, and that the necessary and appropriate disposition is a detention disposition, as recommended by the hospital during the hearing.
Alleged Offences
- The alleged offences are excerpted from the Hospital Report as follows:
December 26, 2022 (Resists or willfully obstructs a public/peace officer, Mischief in relation to property under $5,000, Uttering threats to cause death or bodily harm)
The accused and the victim have resided in the same rooming house for two years. The relationship between the accused and the victim was casual as they would only acknowledge each other in passing. The residence is a bungalow used as a rooming house where six individuals reside.
On December 26, 2022 at approximately 7:45 a.m, the victim was warming up coffee in the microwave on the main floor of 169 Irving Pl, London, Ontario. The victim noticed that there was marijuana on the ottoman in the living room which belonged to the accused. The victim collected the items and brought them to the accused who was in his bedroom located on the main floor.
The victim returned to her bedroom in the basement when she heard a knock on her door. At this time, the victim's father was in her bedroom as well. The victim opened her bedroom door to the accused. The accused alleged that the victim stole his marijuana. When the victim denied the allegations, the accused threatened to smash her face in. The victim’s father approached the door to defend the victim. The victim’s father tried to close the door when the accused kicked it with his foot. This caused damage to the door frame and door lock. The victim’s father exited the bedroom, demanding that the accused had to leave as London Police were contacted. The accused eventually returned upstairs.
The accused was very uncooperative with telling police what had occurred. He began calling police "stupid" and "retarded". His eyes were dilated and he began fixated on PC DUBS and her side arm. In efforts to break this stare, Sergeant PATTERSON began talking to the accused and began walking towards the living room table to look for the rolling papers. The accused immediately rushed to the table and went to grab Sergeant PATTERSONS hands from reaching down towards the marijuana gummies on the table. Police took physical control of the accused.
The accused began to tense up both of his arms and refused to listen to police regarding placing his hands behind his back. He continued to refuse and tried to pull away. PC DUBS delivered one knee strike to the accused's right upper leg and he was brought to the ground by PC DUBS and Sergeant PATTERSON. The accused continued to tense his arms, refusing to put them behind his back. PC DUBS delivered another knee strike to the accused's upper right arm in efforts to get his arms behind his back. His hands were eventually freed and he was handcuffed to the rear. EMS was requested as the accused stated he could not breathe.
The accused was medically cleared at Victoria Hospital prior to being brought to the London Police Headquarters Detention Unit.
April 24, 2023 (Sexual assault)
On Tuesday April 18th, 2023 at approximately 2:00 p.m., the accused and the victim were located in the detached shed of their shared boarding residence of [address deleted] in the City of London.
At this time, they were the only two occupants. The victim in the matter was on her cellular device and the accused was watching television; both sitting separately. Suddenly, the accused verbally asked the victim if she was "single", in which the victim responded that she was currently in a relationship. The victim had an unsteadying feeling with the accused and texted [RF] her concerns; requesting him to attend to the detached shed. The accused then stood up and approached the victim from the front as she was positioned sitting in her chair, and physically grabbed both of her breasts in each hand. The accused then positioned one of his hands in-between the victim's legs, touching her vaginal area through her sweatpants. The victim attempted to push the accused's hands away while verbally instructing the accused to "stop", additionally stating "get away from me" and "sit down". The accused then backed away from the victim and physically removed his penis from his pants, using his hands to stroke his penis while uttering "help me".
RF attended the detached shed and observed the accused leaning over the victim on her chair. The accused immediately sat back down in his chair. Later on, the accused and [RF] left the detached shed, leaving the victim alone. The accused and the victim had no further communication. However, after the victim disclosed to [RF and AM] what occurred, it was agreed that London Police Service should attend to investigate.
On Sunday April 23, 2023 at 10:11 a.m., [RF] contacted London Police Service to attend. At 10:20 a.m., Constable Mulligan, Constable Souala, and Sgt. Gilmore all attended [address deleted]. The victim disclosed all the above events in great detail, in which [RF and AM] confirmed of what was divulged to them individually. Additionally, London Police observed the text messages from the victim to [RF and AM].
Legal History
- The following information was taken from page 7 of the Hospital Report:
There were no convictions noted in Mr. Chatterson’s Local Criminal Record or RCMP Criminal Record Checks, dated February 14, 2024. Of note, he was charged three times with failing to comply with release orders (December 27, 2022, and two counts on August 31, 2023), however, it was unknown what the outcomes were in those matters.
Current Diagnoses
- Mr. Chatterson is currently diagnosed with Schizophrenia.
Background
- The Hospital Report contains a detailed description of Mr. Chatterson’s personal background, education, employment, and psychiatric history. The following information is excerpted from the Hospital Report:
“Mr. Chatterson’s parents separated when he was less than a year old and divorced when he was around five. … As a child, Mr. Chatterson lived with his mother and visited his father every other weekend. He moved in with the father around 15 because he and his mother were “butting heads.”
“As a school child, Mr. Chatterson was never diagnosed with a learning disability or ADHD. He did not require resourcing. He was a quiet child but played with others well and had a happy temperament. There were no concerns with his grades (his father could not recall his grade school grades specifically but noted he received A’s and B’s in college).
Beginning around 16, he began to withdraw socially. He was expelled from high schools in Woodstock and Ingersoll due to truancy and dropped out of school. He eventually completed a GED program at an adult day school. Around age 30, he attended a year-long pretechnology program at Fanshawe College in London before beginning an electrical program, also at Fanshawe, the following year; he ultimately stopped attending classes and dropped out of school for unknown reasons.”
“Mr. Chatterson held several jobs when he was younger, sometimes for two or three years, generally in manual labour or factory roles. He was a steady, agreeable employee initially. However, throughout his 30s, he was unable to hold work for more than a few weeks, generally for absenteeism, bizarre behaviour, or showing up to work intoxicated or hung over from alcohol use.
In recent years, Mr. Chatterson was supported by ODSP, supplemented by his father. His father would see him on average every other week. He would visit Mr. Chatterson at his rooming homes and take him out to lunch and to shop for essentials.”
“Mr. Chatterson had unstable living circumstances throughout his 30s and struggled with extreme disorganization, safety, and self-care in his living environments, leading to frequent evictions. His father recalled an abrupt decline at around age 30 when he was evicted from his room while attending Fanshawe College. He found the environment “knee deep” in garbage and rotten food; he could not open the door. Since then, Mr. Chatterson has lived in five or six different rooming houses with similar functional impairments. He would hoard garbage, food, and fill bottles with urine, leaving them around his bed. He was physically assaulted at a recent rooming house by the landlord after he defecated and urinated on the walls of his room; he was evicted within two weeks. At the most recent apartment on Adelaide street in London, the landlord was “trying to be more compassionate,” but he still lived in “filth and squalor, feces and urine.” His father noted major safety concerns with his community living skills. He would smoke inside, against the rules, and leave cigarette butts and cannabis joints on the floor. His father gave an example of a recent landlord complaining that the fire alarm would go off at 3am in the morning because Mr. Chatterson left the oven on, and the unit was filled with smoke.”
Mr. Chatterson’s file reveals an extensive psychiatric history. Taken together it describes a pattern of admissions to hospital for psychiatric reasons beginning in 2018. The Hospital Report describes psychiatric admissions and emergency department (ED) attendances in 2018; 2020 (x2); 2021 (x7).
“Mr. Chatterson presented again to the LHSC ED on October 26, 2021, again complaining of headache. He had not been taking his medication in the community. A phone call with his father revealed he had been holding his head, yelling “stop,” losing weight, and urinating in cups and bowls. His father was concerned that he was not able to take care of himself. He was observed in the ED to be responding to internal stimuli (as seen in auditory hallucinations). He had poverty of speech and thought. He denied having a mental condition. He was diagnosed with schizophrenia and admitted on a Form 1. During his admission, he was found incapable to consent to treatment with antipsychotic medications, and his father was his substitute decision maker. He was started on both oral and injectable formulations of aripiprazole. His psychotic symptoms, as well as his grunting and shoulder twitching behaviours significantly improved. He was discharged on November 8, 2021. He was placed on a Community Treatment Order, with follow up with Dr. Chaudhari.”
“Mr. Chatterson received his scheduled monthly aripiprazole injection on December 22, 2021. He made good eye contact, his speech rate and rhythm was normal, although he only gave brief responses. His thought process was organized, and no abnormal thought content was noted. He was somewhat watchful of staff. He missed his appointment in January, 2022. On January 26, 2022; staff sought him out in the community. He smelled of cannabis. His affect was flat. He received his aripiprazole injection. He missed his appointment again in February and received it 2 weeks late (on March 10, 2022). On April 7, 2022 he received his next injection. He was doing relatively well, with reduced emergency department visit frequency (he presented throughout late 2021 to the ED for complaints of headache, sometimes daily).”
“Mr. Chatterson was referred by the ED to the psychiatry service at the LHSC ED on October 23, 2022. He had resumed attending the ED with complaints of headache in late June 2022, with approximately 30 ED visits during that time. He had been lost to psychiatric follow up since April 2022. He left the emergency department before the psychiatry service could assess him.”
“Mr. Chatterson’s father noted that his son was consistently nonadherent with medication treatment in the community and did not believe he had an illness.”
Course Subsequent to the Alleged Offences
- Approximately ten days after the first alleged offence, Mr. Chatterson was admitted to psychiatry services at the London Health Science Centre, on January 5, 2023. He was calm and made eye contact, but was disheveled, mute, had no facial expression, and was described as catatonic. He was found incapable of consenting to treatment for his mental health condition. His father provided substitute consent to resume his aripiprazole long-acting injection.
“Mr. Chatterson was transferred from LHSC to the Parkwood Institute on February 15, 2023, due to an anticipated longer admission given his level of illness. Dr. Beletsky noted significant thought disorganization and mental rigidity; he was unable to change topics in conversation or accept new information. [emphasis added] He also observed Mr. Chatterson responding to internal stimuli, appearing to have an internal conversation, which he would deny if asked. In a discussion with Mr. Chatterson’s father, Dr. Belesky determined he had only a partial response to aripiprazole and advised a trial of the antipsychotic zuclopenthixol. He refused oral zuclopenthixol and ultimately proceeded with the injectable version on substitute consent. By early March 2023, the team noted some positive improvement in his ability to communicate with the zuclopenthixol. He challenged his involuntary status again and had a CCB hearing on March 14, 2023; this time, the CCB found him to not meet criteria for involuntary hospitalization and he left the hospital against medical advice. Dr. Beletsky ultimately diagnosed him with schizophrenia, rule out Cluster A personality traits, rule out autism spectrum disorder, cannabis use disorder, and Huntington’s disease – early stages (Dr. Beletsky considered this possibility a “long shot,” but still reasonable to consider). On April 18, 2023, Mr. Chatterson was charged with sexual assault.”
Mr. Chatterson was admitted to the Elgin Middlesex Detention Centre (EMDC) on December 28, 2023. Dr. Prakash saw Mr. Chatterson at EMDC on January 5, 2023. He was noted to have last taken aripiprazole in August 2023. He was not speaking. He was diagnosed with schizophrenia and query substance use disorder. Jail notes and verbal handover from jail staff indicated he remained generally mute for the remainder of his detention, until his admission to the Southwest Centre on February 5, 2024.
Following his admission, Mr. Chatterson continued to present with frequent mutism, abnormal facial expressions, and a lack of engagement.
His lorazepam dose was increased which improved his mutism to an extent. He initially refused to take oral lorazepam tablets, so it was given by twice-daily injections. On February 7, 2024, Mr. Chatterson was treated with the long-acting injectable antipsychotic paliperidone after he refused to take an oral formulation. It led to minimal change in his condition. Given the lack of improvement, the oral mood stabilizer lithium was added on February 16, 2024. On March 1, 2024, the long-acting injectable antipsychotic zuclopenthixol was added, given a history of response to the same treatment. Over the following days, there was a marked response in his ability to tolerate and participate in psychiatric interviews. His engagement led to improved insight into his thought process.
Mr. Chatterson was found fit to stand trial on April 3, 2024, and returned to the Southwest Centre on a Keep Fit order. As described in the Hospital Report:
“When Mr. Chatterson’s counsel met with him, he was unable to engage meaningfully with his counsel, or provide instructions, and therefore, his fitness had once again become an issue. His treating psychiatrist, Dr. Quinn, began treatment with clozapine in October 2024.
Mr. Chatterson began to improve in some domains. His movements were more fluid, and at times he showed spontaneous interest in activities on the unit, in contrast with previous behaviours (for example, decorating for Christmas, or offering thoughts at community group meetings). However, he remained quite perseverative when discussing his legal matters, and beyond a superficial understanding of his charges, pleas, consequences, and the roles of the various court officials, he was unable to engage in any meaningful dialogue about his court process.”
- An updated psychiatric opinion to the courts was provided on February 5, 2025, opining that Mr. Chatterson was unfit to stand trial. As noted above, on February 5, 2025, the court found that Mr. Chatterson was found unfit to stand trial.
Evidence at the Hearing
Dr. Quinn testified that Mr. Chatterson does not exhibit positive symptoms of schizophrenia but continues to suffer from negative symptoms including blunted affect, little interest in activities, and he requires significant prompting to attend to personal hygiene and other activities of daily living.
Mr. Chatterson also exhibits thought disorganization and a rigid thought process. Dr. Quinn gave the following examples: Mr. Chatterson will repeat the same sentence in a robotic fashion; or will make the same request to staff repeatedly even when the request is no longer relevant. Dr. Quinn also described this as ‘perseverating’.
Since October 2024, when clozapine was added to Mr. Chatterson’s treatment regime, there has been a steady but gradual improvement in Mr. Chatterson’s thought processes. Dr. Quinn indicated that Mr. Chatterson’s symptoms now fluctuate, and he has “good and bad days”.
Dr. Quinn described that the treatment team first began to see improvement around Christmas time in 2024, when Mr. Chatterson started to show an interest in decorating the Christmas tree. The doctor described this as the first “glimmer of an early response” to the clozapine. Since then, Mr. Chatterson has gradually been able to engage in some back-and-forth communication with the treatment team. According to Dr. Quinn, during the two weeks prior to the hearing date, Mr. Chatterson has shown some improvement, with fewer days of displaying symptoms of thought disorganization and rigid thought processes than before.
Dr. Quinn expressed optimism that Mr. Chatterson will continue to improve. He explained that Mr. Chatterson was prescribed several different antipsychotic medications in the past, but that Mr. Chatterson has a history of not taking them consistently. Mr. Chatterson has been properly trialed only with zuclopenthixol, aripiprazole, and now, clozapine. Because Mr. Chatterson has a long history of being suboptimally treated, Dr. Quinn is cautious about expecting a full remission of symptoms but does anticipate further improvement in Mr. Chatterson’s thought processes.
When questioned about the timeframe required to optimize Mr. Chatterson’s treatment with clozapine, Dr. Quinn indicated that he expects the full effect of clozapine to occur within six to 12 months of the beginning of treatment. In Mr. Chatterson’s case, Dr. Quinn expects to see the full effects of treatment within the next four to six months.
Given that Mr. Chatterson was found fit to stand trial in April 2024, and was subject to a keep fit order, and was beginning to respond to treatment with clozapine, Dr. Quinn was asked why Mr. Chatterson’s fitness was reassessed in February 2025. Dr. Quinn explained that Mr. Chatterson’s charges were booked for trial when his counsel reached out to the hospital with concerns about Mr. Chatterson’s fitness with respect to the ability to communicate, in the context of a sexual assault trial. It was in this context that Mr. Chatterson’s fitness to stand trial was reassessed.
Dr. Quinn concluded in February 2025 that Mr. Chatterson’s thought disorganization, concrete thinking, and perseverative thought processes interfered with his ability to communicate with counsel and with the court and rendered him unfit to stand trial in the context of the complexities of a sexual assault trial.
Dr. Quinn reassessed Mr. Chatterson’s fitness to stand trial prior to the hearing on the hearing date, and found that Mr. Chatterson remained unfit to stand trial in the context of a sexual assault trial.
Mr. Chatterson understands the court process; the roles of the various persons involved in the court process and has a reality-based appreciation of the nature and object and possible consequences of the proceedings. He can provide simple instructions to counsel, e.g. ‘I am not guilty’, or ‘I am fit for trial’.
However, because of his disordered thought processes Mr. Chatterson is not able to integrate new information. Dr. Quinn gave the following example. If Mr. Chatterson is told that it is likely to go better for him at trial if he cooperates with psychiatric care and with taking medication, Mr. Chatterson will continue to say that he will not take medication.
Mr. Chatterson is not able to retain and process information. When overwhelmed and stressed he reverts to repeating a single line e.g. “she lied”; “it never happened”. In Dr. Quinn’s observations, the quality of his perseveration is the same with respect to his legal situation as when Mr. Chatterson perseverates over non-legal issues. As a result, Mr. Chatterson is not currently able to meaningfully respond to cross-examination - e.g. to meaningfully respond to scenarios put to him by Crown counsel, especially in the context of a sexual assault trial. In Dr. Quinn’s opinion, this interferes with Mr. Chatterson’s ability to participate meaningfully in the trial and negatively affects Mr. Chatterson’s right to a fair trial.
Dr. Quinn testified that Mr. Chatterson is improving because of treatment with clozapine. Earlier, Mr. Chatterson’s responses to questions about the roles of persons in the court process were memorized. On the day of the hearing, Mr. Chatterson was able to answer questions posed in different ways, showing a greater depth of understanding of the roles of persons involved in the court process.
With respect to the alleged offences, Mr. Chatterson is now able to identify that the incident is alleged to have occurred in a shed, whereas prior to the date of the hearing Mr. Chatterson was unable to describe any details of the alleged offences.
In Dr. Quinn’s opinion, Mr. Chatterson is improving. He is not permanently unfit, but in the context of a sexual assault trial, he is not yet fit.
Dr. Quinn indicated that if Mr. Chatterson regains fitness to stand trial sooner than anticipated, the hospital will request an early Board hearing.
The doctor testified that clozapine is an oral medication, which is administered to Mr. Chatterson under supervision. Mr. Chatterson does not believe he has a mental disorder and does not believe that he requires antipsychotic medication. Mr. Chatterson has stated that he will not take the medication(s) if he is not required to do so, although he is cooperative with taking the medication while in the hospital, and under assertive supervision. Treatment with clozapine also requires regular blood level monitoring, to ensure that levels are within optimal range, and to guard against negative side effects.
In response to a question about possible malingering, Dr. Quinn stated that the treatment team suspects that Mr. Chatterson exaggerates side effects from time to time. For example, Mr. Chatterson will exhibit a tremor in the hand during an interview to discuss medications, but that tremor will not be observed by the treatment team during the rest of the day. Mr. Chatterson has made it clear that he does not wish to take the recommended medication(s).
When Mr. Chatterson was first admitted to the hospital, he exhibited jerky motor movements. These movements have abated, and various medical assessments and imaging have ruled out the presence of Huntington’s disease. Out of an abundance of caution, the hospital has maintained Mr. Chatterson’s place on the waitlist for the movement disorders clinic.
Dr. Quinn was asked whether Mr. Chatterson had any issues with female staff or co-patients. The doctor responded that on two occasions Mr. Chatterson approached select female staff and urinated himself while smiling inappropriately. The treatment team strongly suspected this behaviour was sexually motivated. In Dr. Quinn’s opinion, the behaviour was not paraphilic, but indicative of a significant impairment of Mr. Chatterson’s social skills due to mental disorder.
Mr. Chatterson has no insight into the impact of substance use on his mental state, or on the circumstances surrounding the alleged offences. When asked whether substance use was a factor in the alleged offences, Dr. Quinn indicated that Mr. Chatterson was using cannabis at the time, and one of the alleged offences involved his belief that his cannabis was stolen. Dr. Quinn expressed relative certainty that cannabis worsened Mr. Chatterson’s mental state at the time of the alleged offences. Mr. Chatterson has demonstrated passive attendance at the unit’s substance relapse support groups.
Mr. Chatterson has no housing available to him in the community. Mr. Chatterson’s father has provided significant support to Mr. Chatterson in the past by bringing him food, cleaning his apartment/room, and negotiating with landlords to maintain Mr. Chatterson’s housing. Because he recently had heart bypass surgery, Mr. Chatterson’s father is currently unable to provide this level of support for Mr. Chatterson.
Mr. Chatterson’s medication has not yet been optimized. His oral medications require close supervision given Mr. Chatterson’s lack of insight into his mental disorder and need for treatment. The treatment team has not yet been able to evaluate Mr. Chatterson’s housing needs. Mr. Chatterson requires a gradual path to integration into the community before the treatment team will be able to identify Mr. Chatterson’s housing needs and identify appropriate housing in the community.
Analysis and Conclusion
Fitness
The test for fitness to stand trial, as set out in R. v. Taylor means the person charged must be able to understand the nature and object of the proceedings, the possible consequences, and can recount to counsel facts necessary to allow counsel to properly prepare a defence. This last point has been elaborated upon by the Court of Appeal in R. v. Morrissey, 2007 ONCA 770, at para. 29, wherein Blair J.A. stated “The ability to communicate with counsel in the context of a fitness inquiry speaks to the ability to seek and receive legal advice.” At para. 36 the Court stated: “An accused must be mentally fit to stand trial in order to ensure that the trial meets minimum standards of fairness and accords with principles of fundamental justice such as the right to be present at one's own trial and the right to make full answer and defence... Meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.”
The Court of Appeal addressed the fitness test in R. v. Bharwani, 2023 ONCA 203. The court rejected the use of the phrase “limited cognitive capacity” directing that it should simply be the “fitness test. The five-member Court emphasized the need for meaningful participation in proceedings to be fit for trial.
At para. 167 of the judgement the Court stated:
There is one fitness test for all accused, whether represented by counsel or not. This test is applied contextually.
The test for fitness is set out in the statutory definition of “unfit to stand trial” in s. 2 of the Criminal Code.
A person is unfit to stand trial if, on account of mental disorder, the person is unable to conduct a defence or to instruct counsel to do so.
The purpose of the s. 2 fitness test is to ensure that the accused can be meaningfully present and meaningfully participate at their trial. These touchstones inform a purposive interpretation and application of the s. 2 fitness test and do not themselves constitute a stand-alone test.
The Taylor test questions are not a sufficient surrogate for assessing fitness but are helpful in providing insights into an accused’s abilities in relation to the s. 2 criteria. Applying the fitness test is more nuanced than the questions recognize.
The accused must have a reality-based understanding of the nature and object and possible consequences of the proceedings.
The accused must have the ability to make decisions. This involves the ability to understand available options, the ability to select from those options, the ability to understand the basic consequences arising from those options, and the ability to intelligibly communicate to either counsel or the court the decision arrived upon.
The accused need not have the capacity to engage in analytic thinking in the sense that the accused need not be capable of making decisions in their own best interests.
In Clayton (Re), 2025 ONCA 308, the Court of Appeal re-emphasized the importance of context, as set out in the Bharwani decision. Quoting from paragraph 141 of Bharwani the Court stated at paragraph 9:
[F]itness determinations simply cannot be made in the abstract because, at their core, fitness hearings are focussed on this accused who is facing a specific legal predicament in a specific context in the here and now. That context forms the backdrop against which the statutory test – whether the accused is unable on account of mental disorder to conduct a defence or instruct counsel to do so – is applied. [Emphasis added.]
At paragraph 11 the Court stated: “First, the nature of the charges and allegations are important because the simpler the case is, the easier it is to understand, appreciate and talk about.”
At paragraph 14, The Court stated, “I am mindful that contextual factors cannot be permitted to hijack a fitness hearing.”
At paragraph 15, the Court went on to state:
…In Bharwani, at paras. 150-152, the court emphasized that fairness demands that the unfitness test not be cast too widely, and that fitness is to be considered in the broader context of the impact of an unfitness finding. It is necessary to calibrate the test in this way because unfitness is a powerful finding. It not only places presumptively innocent individuals under the authority of the Review Board system, with its significant powers, it also results in their removal from the criminal justice system thereby depriving them of their day in court: Bharwani, at paras. 145-147. This results in “serious unpredictability” for these individuals and creates the risk that they “could end up with a greater loss of liberty than had they gone to trial and been … convicted”: Bharwani, at paras. 146, 149.
The context of Mr. Chatterson’s legal situation requires a consideration of a sexual assault trial, and Mr. Chatterson’s ability to meaningfully participate in a legally complex trial. The Board considered this context, as well as the Court of Appeal’s caution that the net is not to be cast “too wide” in the context of the potential impact of a finding of ‘unfit’ on the uncertainty of the potential loss of liberty of the accused. The Board noted that the consequences of a guilty finding in a sexual assault trial can have a significant impact on the liberty interests and the reputation of Mr. Chatterson. The Board also noted that the relevant symptoms of Mr. Chatterson’s mental disorder are showing signs of improving in response to treatment with clozapine. It is anticipated that Mr. Chatterson will continue to improve over the next four to six months, and that his fitness will improve over this time period.
It is in the context of preparing for a sexual assault trial that counsel for Mr. Chatterson requested a reassessment of his fitness to stand trial. This context was explained by Dr. Quinn in oral evidence and is also described in the Transcript of the Fitness Hearing before the Honorable Justice K. McHugh, dated February 5, 2025, at pages 5-12.
Mr. Chatterson’s fitness to stand trial is described as follows at page 33 of the Hospital Report:
Mr. Chatterson’s most recent fitness assessment was conducted on April 4, 2025. His response to questions were similar to previous fitness assessments. He understood that were charges and the general nature of them (e.g. the sexual assault charges and resisting arrest), though disputed that there was any reality to them. He was aware of the nature and objective of judicial proceedings and their possible consequences. Mr. Chatterson was able to state the various roles held within the proceedings, such as the the judges role, “says guilty or not guilty,” and the defense counsel’s role, “they are supposed to help me.” He understood the plea options, “guilty and not guilty.” If found guilty, he would “go to jail,” and if found not guilty, “I could go free.” He understood the oath, “to tell the truth,” and consequences if he perjured, “go to jail.” However, communication difficulties with his counsel will likely continue. Due to Mr. Chatterson’s significant paucity of thought, rigid thought process, and severe impairment in responding to questions (e.g. providing one-word answers, staring blankly), his counsel would likely experience an inability to gain instructions from him. He would likely be unable to meaningfully take and integrate legal advice. It is unlikely he would be able to participate in cross examination.
The Board acknowledges that Mr. Chatterson has a reality-based understanding of the nature and object and possible consequences of the proceedings; is aware of the roles of the persons involved in the court process and can provide counsel with simple instructions. However, as the court emphasized in Bharwani, these are not stand-alone tests. The principle underlying fitness for trial is the need for meaningful participation in the accused’s criminal proceedings.
Although it appears that Mr. Chatterson has begun to show some improvement in his ability to engage in reciprocal conversations, Mr. Chatterson continues to exhibit thought disorder, concrete/rigid thinking, and perseveration. As noted by Dr. Quinn, Mr. Chatterson has good and bad days, and while the number of good days seems to be increasing, Mr. Chatterson still has bad days. In other words, although he is improving, Mr. Chatterson still suffers from symptoms of thought disorganization, concrete/rigid thinking and perseveration which affect his ability to process information and communicate with counsel and the court.
The Board accepts Dr. Quinn’s evidence that Mr. Chatterson’s ability to organize his thought processes is fragile and is easily overwhelmed. It is an aspect of his mental disorder, which is responding to clozapine, but this treatment has not yet been optimized. Dr. Quinn expects continued improvement over the next four to six months. Mr. Chatterson might be able to process information in court proceedings for a short period of time but will quickly be overwhelmed and cope with the stress with disordered responses and by perseverating on one-line answers. This will impair Mr. Chatterson’s ability to respond to the court and the Crown, and to communicate with and instruct his counsel.
Mr. Chatterson is not currently able to retain, process, and integrate new information, which is especially important in the context of cross-examination during a sexual assault trial. This inability is a symptom of his mental disorder, which is responding to treatment with clozapine. The Board agrees with Dr. Quinn that in the context of a sexual assault trial, this level of disorganization, concrete/rigid thinking and perseverative responses prevents Mr. Chatterson from participating meaningfully in his sexual assault trial.
Applying the test set out in Bharwani, and further elaborated in Clayton, this Board concludes on a balance of probabilities that Mr. Chatterson does not meet the test for fitness.
Disposition
The Board agrees with the hospital and the Attorney-General that the necessary and appropriate disposition is a detention order as proposed by Dr. Quinn during the hearing.
Mr. Chatterson’s pharmacological treatment is not yet optimized, although he continues to improve. Clozapine is an oral medication. Mr. Chatterson does not wish to take medications and does not see the need to take medications. He is cooperative in the hospital with what Dr. Quinn described as “assertive supervision” but will not likely continue to take the medication if unsupervised.
It is highly unlikely that Mr. Chatterson will become fit unless his medication is optimized, and his compliance is monitored and supervised in the hospital setting.
As set out on page 32 of the Hospital Report:
Absent forensic supervision, Mr. Chatterson would return and live in the community. He would find a rooming house, and would require the support of ODSP and his father to obtain and sustain his living situation. Due to his poor insight into his treatment and mental illness, he would discontinue taking any medication. He is quite guarded and would not share what he was experiencing with any professional or personal supports. He would resume using substances, which would impact his mental illness and would increase his psychotic symptoms, including persecutory paranoia and behavioural disinhibition.
Mr. Chatterson has no place to live in the community. Prior to the alleged offences, Mr. Chatterson relied heavily on his father to provide food, clean his living space, and negotiate with landlords to maintain his residence. This level of support cannot be provided by Mr. Chatterson’s father because of health issues, and Mr. Chatterson has no other supports in the community. The Hospital Report describes Mr. Chatterson’s historical difficulties in living in the community.
Even in the hospital, Mr. Chatterson requires prompts to attend to his activities of daily living. Mr. Chatterson’s support needs for living in the community have not yet been evaluated because his response to clozapine has not yet been optimized. Possible community placements have not yet been identified.
The Board notes that his risk of violence has been assessed as low to moderate under a detention disposition while living in the hospital, and moderate to high while living in the community under a detention order, and accepts the risk factors set out on page 34 of the Hospital Report:
Mr. Chatterson is diagnosed with schizophrenia. Mr. Chatterson’s psycho-pharmacological treatment continues to have a limited effect on managing his symptoms and presentation. His medication has not been optimized;
Mr. Chatterson has poor insight in his mental illness, treatment, and violence risk. Mr. Chatterson lacks insight into his symptoms and behaviours and the risk that they pose towards members of the public;
Mr. Chatterson has a history of not adhering to treatment, such as previous Community Treatment Orders and medication. He has stated that he would discontinue taking medications. He would be unlikely to adhere to his medication without strict supervision;
Mr. Chatterson has a history of substance use and this has yet to be treated; and
Mr. Chatterson has limited personal support. His professional support in community, were unable to manage his risk.
Given the nature of the alleged offences, the Board determined that it is appropriate to include a clause in the Disposition requiring Mr. Chatterson to refrain from contact or communication with the alleged victims.
In consideration of all the evidence, submissions of the parties and the criteria set forth in s. 672.54 of the Code, the paramount consideration being the safety of the public, in addition to the mental condition of Mr. Chatterson, his reintegration into society and his other needs, the necessary and appropriate Disposition is a Detention Disposition with the clauses recommended by the hospital.
DATED this 13^th^ day of May 2025, at the City of Toronto, in the Region of Toronto.
Ms. K. Tomaszewski
Legal Member
Office of the Registrar
Ontario Review Board