Ontario Review Board
Re: Nicholas Magel
ORB File No: 8179
Hearing held on: Monday, April 14, 2025
Place of hearing: Thunder Bay Regional Health Sciences Centre,
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Goldenberg
Members: Dr. H. Bloom Dr. J.C. Rose Mr. P. Capelle Mr. A. Bouvier
Parties Appearing:
Accused: Nicholas Magel Counsel: Mr. U. Agostino
The Person in charge of Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Ms. R. Derouard
REASONS FOR DISPOSITION
(Dated May 27, 2025)
Introduction
On November 9, 2022, Nicholas Magel was found not criminally responsible on account of mental disorder (“NCR”) of a Criminal Code charge of aggravated assault. At the time of this hearing, Mr. Magel was subject to a Disposition of the Ontario Review Board dated March 19, 2024, detaining him at Secure Forensic Unit of Thunder Bay Regional Health Sciences Centre (“TBRHC”) with privileges up to living in the community in accommodation approved by the person in charge.
On April 14, 2025, a panel of the Ontario Review Board (“the ORB” or “the Board”) convened a hearing at the Thunder Bay Regional Health Sciences Centre (“T.B.R.H.S.C.”) pursuant to s. 672.81(1) of the Criminal Code of Canada. The annual review for Mr. Magel was held in person. The hospital was represented by Ms. Davidson, the Attorney General by Ms. Derouard, and Mr. Magel by Mr. Agostino.
Without Prejudice Position of the Parties
Ms. Davidson, for the hospital, submitted that Mr. Magel remains a significant threat and recommended a continuation of his current detention disposition with an increase to the length of travel passes from one week to two. Ms. Derouard, speaking for the Crown, indicated that she anticipates agreeing with the hospital recommendation. Mr. Agostino advised he was seeking a conditional discharge on behalf of Mr. Magel, noting that Mr. Magel will consent to a s. 672.55(1) treatment clause as well as a residency clause specifying he reside at a Salvation Army run home situated at 545 Cumberland Street North. In the alternative, Mr. Agostino would join with the hospital recommendation.
Background and Index Offence
The allegations giving rise to the offence(s) are set out in the hospital report as follows:
“On February 11, 2022, Mr. Magel approached the victim’s hotel room in Red Lake and assaulted him. It was reported that both individuals were unknown to each other, and there was no precipitant for the attack. Mr. Magel tackled then punched the victim before stabbing him in the neck. The victim reported that Mr. Magel said ‘I’m sorry’ during the attack and it seemed as though Mr. Magel ‘...wasn’t all there.’ A witness stated that after the attack, Mr. Magel walked away as if nothing happened. Mr. Magel was compliant with police commands at arrest. Mr. Magel stated that the victim seemed ‘creepy,’ which scared him, which resulted in Mr. Magel stabbing the victim.”
Current Diagnosis(es)
Schizophrenia
Obsessive Compulsive Disorder
Evidence at hearing
Dr. Sheppard testified on behalf of the hospital. Mr. Magel was transferred from Ontario Shores to Thunder Bay General Hospital in May of 2024 to be closer to his home community of Red Lake. He was initially admitted to the TBRHC rather than to the community to enable the forensic team to better understand him and satisfy itself that the community placement identified was appropriate. In time, he was discharged to Cassidy House. Regrettably, the community placement home operator at Cassidy House was unable to continue operating that residence. As a result, Mr. Magel was returned to hospital and thereafter transitioned to Andras Court, a four bed 24 hour supervised transitional placement in Thunder Bay. He was there until February 2024, when he moved to a Salvation Army residence in Thunder Bay which is also monitored 24 hours a day but considered less restrictive than Andras Court. The goal is to transition Mr. Magel to independent living. That potential will be further explored during this reporting year.
Mr. Magel’s first psychiatric admission occurred when he was 16, although signs of illness first manifested two years earlier. At that time, he was regularly using cannabis and there were reports of ongoing conflict within his family, particularly with his mother with whom he resided.
Several Form 1 admissions under the Mental Health Act are detailed in the Hospital Report.
The index offence occurred in February 2022, but there were ongoing problems prior to the N.C.R. finding and Mr. Magel coming under the jurisdiction of this Board. Since then, he has been treated with and responded well to Clozapine. There has been no substance use and he has been fully compliant in taking his medications, albeit in a supervised setting.
Mr. Magel remains a significant threat due to the history of violence associated to his illness, the circumstances of the index offence, a history of non-adherence to prescribed medications and substance use, as well as reports that in previous years he was not coping well with stressors and conflict with his mother.
Dr. Sheppard opined that a conditional discharge is premature. This is because Mr. Magel has been in the community for less than a year and in his current residence for only six weeks. As a result, the hospital feels it is necessary to approve his accommodation. If his address was specified as being the Salvation Army residence, this may prove overly restrictive to Mr. Magel, notwithstanding that he could live there indefinitely.
The hospital also requires the ability to return Mr. Magel as required and expeditiously. He is now being exposed to new situations and stressors and there is a concern that he may again partake in the use of cannabis. If his mental status declines, the hospital would like to admit him early, restabilize him, and prevent any serious deterioration that would place the public at risk. Dr. Sheppard added that the Mental Health Act in Mr. Magel’s case is essentially more reactive than the avenues available using a Form 49 to speed readmission and prevent further deterioration. Dr. Sheppard opined that there must be evidence of risk to the public, more specifically harm to self or others, in order to return Mr. Magel to hospital pursuant to the Mental Health Act.
Dr. Sheppard confirmed that Mr. Magel’s Christmas 2024 visit to Red Lake went well. His mother picked him up in Thunder Bay, brought him to Red Lake and then drove him back. Responding to questions from Mr. Agostino. The doctor added that increased withdrawal, or social isolation, would be insufficient to return Mr. Magel to hospital pursuant to the Mental Health Act, however much of these earlier signs portend frank decompensation The doctor added that the risk of imminent physical impairment may or may not be sufficient to return Mr. Magel to hospital, adding that if the patient was admitted on a Form 1, it is more difficult to keep him in hospital for a longer term.
Dr. Sheppard conceded that currently Mr. Magel would return to hospital voluntarily if requested. The doctor added that the question is whether this would occur if Mr. Magel began to decompensate. Specifically, would Mr. Magel continue to follow the treatment team’s advice? Dr. Sheppard added that this is the first time Mr. Magel has been stabilized on prescribed medications such that it is unknown how long that stability will continue.
Dr. Sheppard advised that another good year, absent substance use and ongoing medication compliance are necessary elements to recommending a conditional discharge for this patient.
Responding to a question from a panel member, Dr. Sheppard shared that Mr. Magel’s ability to live independently will be assessed over the coming year. Dr. Sheppard noted that Mr. Magel has only resided at the Salvation Army residence for the past six weeks. Therefore, more independent living would not be considered for at least another six to eight months. Dr. Sheppard opined that gradual, slow integration would be best suited for this patient.
The forensic team plans to engage Mr. Magel with more individualized outpatient psychology. Ritualistic behaviour impacted by stress will be a target.
Another panel member noted that the current Disposition does not contain a cannabis prohibition or obligation to provide samples. Dr. Sheppard responded that this was an omission and that both should be included in case Mr. Magel decompensates, thereby allowing the hospital can respond appropriately. Dr. Sheppard added that there was previous heavy use of cannabis and Mr. Magel himself reports that its use worsened his condition.
Dr. Sheppard testified that he currently sees Mr. Magel monthly, adding that the Mental Health Act requires that a patient be seen within a week of completing an assessment.
Closing Observations
Ms. Davidson maintained the hospital’s position and recommended the addition of the prohibition of the use of cannabis and the provision of samples. Ms. Derouard joined in the hospital position. Mr. Agostino asked the Board to consider a conditional discharge, reiterating that his client would agree to a residency clause as well as a consent to treatment clause. In advocating for a conditional discharge, Mr. Agostino relies on his client’s mental stability, medication compliance since his tenure under the O.R.B., as well as his abstention from substances and participation in educational programming as offered. Mr. Agostino added that Mr. Magel has not engaged in any aggressive or violent behaviours since 2022. Further, his relationship with his mother has improved, as she enables his travel to and from his home community of Red Lake.
Analysis and Decision
(a) Significant Threat
Ongoing significant threat to the safety of the public cannot be speculative. It must entail a real risk of serious physical or psychological harm arising from conduct that is both serious and criminal in nature.
In determining whether Mr. Magel continues to represent a significant threat to the safety of the public the Board has carefully analyzed the evidence as it relates to the Supreme Court of Canada decision in Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
The Board unanimously finds that Mr. Magel continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the joint position of the parties and accepted the uncontroverted evidence of Dr. Sheppard that Mr. Magel continues to pose a significant threat. The Board also relies on the Hospital Report and the Risk Assessment contained therein at page 14 in determining that Mr. Magel lives with Schizophrenia; a major mental illness complicated by a co-morbid Obsessive Compulsive Disorder. The relevant excerpt is reproduced for ease of reference:
It is the view of the treatment team and the hospital that Mr. Magel remains a significant threat to public safety. While he has done well under the jurisdiction of the ORB, and while there has been no recurrence of aggressive behaviour since he was stabilized on Clozapine, there is a significant history of violent and aggressive behaviour prior to, and shortly after, the commission of the index offence in February 2022. The details are documented earlier in this report; suffice to say that, while untreated in the community and living with his family in Red Lake, Mr. Magel’s behaviour was regularly identified as disturbed, aggressive, and violent. Victims included, but were not limited to, his immediate family with whom he was living. Although Mr. Magel has now been successfully reintegrated into the community of Thunder Bay, over the course of the past year, his tenure in the community has thus far been accomplished with the assistance of high levels of supervision and support, and the long term trajectory of his illness remains to some extent unknown. He has spoken about his hope to be able to live more independently in the future, and this goal will have to be carefully assessed with respect to its feasibility, and then approached in a gradual and cautious fashion. Mr. Magel’s history of non-adherence to treatment recommendations, while living in the community, does remain a risk factor, and, as indicated earlier, his current insight and commitment to indefinite treatment are felt to be somewhat under-developed.
The Board therefore accepts that absent an ORB Disposition, Mr. Magel would likely become non-compliant with prescribed medications which would lead to decompensation, use of substances and the re-emergence of behaviours similar to those seen at the time of the index offence. We are satisfied that absent an ORB Disposition, it is likely that Mr. Magel will again cause serious physical harm to members of the public and such conduct will likely be criminal in nature.
(b) Disposition
Flowing from the Board’s finding that Mr. Magel continues to pose a significant threat to the safety of the public it must shape a Disposition for the year ahead. Its paramount consideration in doing so must be the safety of the public while also considering Mr. Magel’s needs pursuant to s. 672.54 of the Criminal Code.
The necessary and appropriate disposition for Mr. Magel provides him as much freedom as possible without subjecting the community to a real risk of dangerous behaviour.
The panel also considers the testimony of Dr. Sheppard outlining that the MHA would be insufficient in reducing the risk to the public in the event of a decompensation.. Both the documentary and viva voce evidence point to the need for elevated levels of supervision that only a Detention Order assures.
Mr. Magil was transferred to the TBRHC a year ago to be closer to his family. Although he has largely resided in the community since that time, he remains in 24 hour monitored housing. As of the date of this hearing, he has been housed at the Salvation Army residence for less than six weeks. The requirement to approve/change his accommodation and admit him to hospital as required has characterized the past reporting year wherein he was housed at:
TBRHC
Cassidy House
TBRHC
Andras Court
Salvation Army
These changes in accommodation underscore the rationale supporting the Hospital’s recommendation that Mr. Magel remain subject to a Detention Disposition as the treatment team works towards transitioning him to independent living. Given the foregoing, specifying the address at which he must reside for the upcoming reporting year could very well prove to be overly restrictive. Additionally, in light of two hospital stays this reporting year, an ability to return this patient to hospital, if and when required, clearly exists. This is because there remains a concern that Mr. Magel may resume the use of cannabis, which would precipitate a decline in his mental state, thereby triggering the use of a Form 49 to facilitate rapid readmission and treatment. This proactive mechanism is essential to address further deterioration and an increase in the level of risk to public safety, notwithstanding the absence of aggressive or violent behaviours for the past three years. Dr. Sheppard’s uncontroverted evidence, with which this Panel agrees, is that because this is the first time Mr. Magel has been stabilized on psychotropic medications, the duration of his current mental stability cannot be determined. Nor can it be ascertained if he would follow the treatment team’s advice were he to begin to decompensate. Therefore, a risk of imminent physical impairment, which meets criteria for involuntary admission under the Mental Health Act, may be insufficient to return Mr. Magel to hospital. Dr. Sheppard testified that monthly meetings would likely prevent him from using the Mental Health Act, in any event.
As a result, the level of risk to public safety Mr. Magel currently represents, necessitates the ongoing authority to promptly and proactively return Mr. Magel to the TBRHC pursuant to a Detention Disposition, if a deterioration of his clinical condition or behaviour is detected.
Conclusion
Given the foregoing, the Disposition required to manage the threat Mr. Magel poses to the safety of the public while still meeting his needs, is a renewal of the current Detention Disposition with an increase to the length of travel passes from one week to two, together with a cannabis prohibition and obligation to provide samples.
In making this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Sheppard and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, Mr. Magel’s mental condition, his reintegration into society and other needs.
DATED this 27^th^ day of May 2025, at the City of Toronto, in the Toronto Region.
Mr. P. Capelle
Legal Member
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Office of the Registrar
Ontario Review Board