Ontario Review Board
Re: Kola Ogunkoya
ORB File No: 8249
Hearing held on: Tuesday, April 8, 2025
Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto
Pursuant to: Section 672.81(1) of the Criminal Code
Before: Alternate Chairperson: Ms. C. Fromstein Members: Dr. L.E. Cappe Ms. C. Young Hon. C. Nelson Ms. B. Naegele
Parties Appearing: Accused: Kola Ogunkoya Counsel: Ms. S. Feldman
The Person in charge of Hospital: Representative: Dr. P. Darby
Attorney General of Ontario: Counsel: Mr. M. Feindel
REASONS FOR DISPOSITION OF THE MAJORITY
(Ms. C. Fromstein, Ms. C. Young, Ms. B. Naegele) (Dated June 2, 2025)
Introduction
1On February 24, 2023, Kola Ogunkoya was found not criminally responsible on account of mental disorder (NCR) on charges of assault with a weapon, mischief under $5000, assault peace officer (x2), uttering a threat to cause death or bodily harm and theft of mail, all contrary to the Criminal Code of Canada. He is currently subject to a disposition of the Ontario Review Board (the Board), dated May 1, 2024, detaining him in the General Forensic Unit at the Centre for Addiction and Mental Health (CAMH/hospital) with discretionary privileges up to and including the ability to reside in the community in approved accommodations.
2On April 8, 2025, the Board convened to conduct the annual review of Mr. Ogunkoya’s disposition pursuant to s. 672.81(1) of the Criminal Code. Mr. Ogunkoya was present, represented by his counsel, Ms. Feldman. Dr. P. Darby represented the hospital; Mr. M. Feindel, the Crown.
3At the outset of the proceedings, the parties were canvassed as to their respective positions on the two issues to be examined by the Board: whether Mr. Ogunkoya continues to represent a significant threat to the safety of the public, and if so, the necessary and appropriate disposition having regard to the criteria set out in s. 672.54 of the Criminal Code.
4Dr. P. Darby, for the hospital, submitted that Mr. Ogunkoya continues to represent a significant threat to the safety of the public and that the necessary and appropriate disposition is a continuation of the current detention order with the same terms and conditions. Mr. Feindel, on behalf of the Ministry of the Attorney General, concurred with the hospital’s position. Ms. Feldman, on behalf of Mr. Ogunkoya, indicated that he was seeking either a conditional discharge with a consent to treatment provision, or an absolute discharge.
Findings
5For the reasons that follow, a Majority of the Board finds that Mr. Ogunkoya continues to represent a significant threat to the safety of the public and the necessary and appropriate disposition is a conditional discharge. The Minority finds that the disposition should continue according to last year’s Disposition.
The Evidence
6The evidence at the hearing consisted of the Hospital Report, dated March 21, 2024 (ex. 1), and the viva voce evidence of Dr. P. Darby, Mr. Ogunkoya’s treating psychiatrist.
The Index Offence
7The facts surrounding the index offences are summarized in the Hospital Report as follows:
“On May 4, 2020 officers responded to a Radio Call for an Assault In Progress at Shuter Street and Seaton Street. Mr. Ogunkoya had allegedly been observed by Mr. Orr, stealing mail from the victim’s mailbox. Mr. Orr dressed and went downstairs to confront Mr. Ogunkoya. As Mr. Orr stepped out of his residence, he was met by Mr. Ogunkoya, who was armed with a large rock.
Mr. Ogunkoya allegedly threw the rock at the victim and then proceeded to throw series of punches. Mr. Orr managed to fend off the attack long enough for the first police officer to arrive on scene. Mr. Orr suffered cuts and scratches to both wrists as a result. Police Constable McMurray arrived on scene as the victim was being attacked by the accused and sounded several long blasts of her horn in hopes of breaking up the fight.
Mr. Ogunkoya immediately turned his focus to the officer and approached her while armed with a large rock. He allegedly threw the rock numerous times at the police vehicle, shattering the rear window, all windows on the passenger side, as well as the front windshield. Officer McMurray deployed her conductive energy weapon two times, however Mr. Ogunkoya was not affected by the probes. He allegedly continued the assault on the officer as she circled her scout car trying to create distance until assistance could arrive.
As officer McMurray approached the rear driver’s side of her vehicle, Mr. Ogunkoya allegedly violently threw a large rock directly at the officer trying to strike her. The rock deflected off the rear quarter panel and was once again collected by Mr. Ogunkoya. The officer moved toward the front of the vehicle as Mr. Ogunkoya continued to advance on her. The officer backed up and drew her firearm as Mr. Ogunkoya approached her with rock in hand. Just as additional units began to arrive, Mr. Ogunkoya allegedly threw the rock at the officer narrowly missing her once again.
Arriving officers were able to take Mr. Ogunkoya into custody without further incident. He was found to be in possession of several articles of mail that he had taken from other residences prior to being apprehended. He was paraded before Sgt BOLTYANSKY. During the course of the parade, he allegedly threatened Sargent Boltyansky by saying,
“I am gonna fucking kill ya just for wearing that uniform.” The accused had clearly demonstrated his aggression toward uniformed officers and was subsequently charged with Uttering Threats.”.”
Background Information
8The Hospital Report contains detailed information about Mr. Ogunkoya’s background and psychiatric history and need not be reviewed in detail here beyond the following highlights. Mr. Ogunkoya is a 45-year-old man who was born and raised in Nigeria. He received a Bachelor of Law degree. In 2002, he moved to Canada. Mr. Ogunkoya reported periodically talking with his parents on the phone (in Nigeria) but otherwise had no other contact with any family member or friends.
9Since arriving in Canada, Mr. Ogunkoya mostly obtained work through temporary agencies. He held a variety of jobs, the longest of which was working in a plastic grinding factory. He eventually experienced difficulty obtaining work. He was supported by the Ontario Disability Support Program (ODSP) at the time of the index offences.
10Mr. Ogunkoya has no criminal convictions. However, prior to the index offences, there were a number of incidents of violence towards members of the public. There have been no reported concerns of problematic substance abuse.
11Mr. Ogunkoya’s first encounter with mental health professionals was in 2013 when he was sent to CAMH pursuant to a Court-ordered fitness assessment. After being found unfit, he was admitted, pursuant to a Treatment Order. He was treated and, although delusional, was deemed fit to stand trial.
12In June 2019, Mr. Ogunkoya was allegedly causing a disturbance at a shelter by making threats to staff and residents and setting fires. He was reported to be irritable, agitated, shouting, screaming and paranoid. He was taken to St. Michael’s Hospital and held overnight pursuant to a Form 1. The following day he was calm yet delusional and showed other symptoms of psychosis. He was deemed not certifiable and discharged. He declined follow up in the community and was discharged back to his shelter without any prescription for psychiatric medication.
13Mr. Ogunkoya was admitted to CAMH pursuant to a Treatment Order in May 2020 and had an initial hearing before the Board in September 2020. He was found unfit to stand trial and detained on a general forensic unit. In August 2021, Mr. Ogunkoya returned to court and was found fit to stand trial. He remained stable throughout the remainder of 2021 and into 2022. Despite a marked improvement in his presentation, he continued to express delusional beliefs, particularly with respect to his charges. He remained at CAMH pursuant to a Keep Fit order until he was found NCR on February 24, 2023.
Course Since the Last Disposition
14Dr. Darby has been Mr. Ogunkoya’s treating physician since September, 2024. Mr. Ogunkoya remains in SHIP housing in Brampton. There are no major concerns. There has been no change in his baseline mental status. The major concern is that Mr. Ogunkoya’s insight into his mental illness is limited as is his insight into his need for treatment and risk for future violence. He is generally pleasant but presents as guarded and superficial when questioned. He cannot connect his symptoms to the index offence.
15Mr. Ogunkoya is adamant that he has no need of therapeutic programs. He states he is not obligated by the terms of his disposition to attend therapeutic programs and, therefore, refuses. He is, however, compliant with his medication. He remains incapable of consenting to treatment.
16While unwell, Mr. Ogunkoya evidenced many psychotic symptoms, including hallucinations, paranoid and grandiose delusions. He also engaged in erratic, bizarre and violent behaviours. His risk of re-offending, however, under his current Disposition, falls in the low range. In the context of an absolute discharge, his risk increases into the high range.
17An occupational therapy assessment has been recommended together with semi-independent housing to support Mr. Ogunkoya’s needs and to mitigate the risk of decompensation while in the community. As a result, it is the hospital’s evidence that the approval of housing is necessary and appropriate.
18It is the further evidence of the hospital that, absent housing and case management supports that are provided by Forensic Service, Mr. Ogunkoya is likely to have challenges with coping when exposed to stressors. This will likely precipitate a decompensation in his mental state. Mr. Ogunkoya would benefit from programming aimed at developing strategies to cope with stressors, including cognitive behavioural therapy and stress and coping strategies. Mr. Ogunkoya is rigid around his expectations, keeps to himself and continues to minimize the effects of his illness and the index offences.
19In answering questions from the Crown, Dr. Darby testified that it is still early days for Mr. Ogunkoya in SHIP housing. He has been living in the community since September, 2024.
20In answer to questions from Ms. Feldman, Dr. Darby indicated that Mr. Ogunkoya’s risk profile has improved now that he has achieved some stability at SHIP. Dr. Darby also testified that Mr. Ogunkoya could remain at SHIP indefinitely. He is happy to engage in recreational programs but not therapeutic programming. He remains content in his residence. He has complied with his medication which he takes because he states that it calms him down but it is not for his illness. Finally, Dr. Darby was unsure as to whether Mr. Ogunkoya would voluntarily attend at a hospital if he became unwell.
21In answer to questions from a panel member, Dr. Darby testified that Mr. Ogunkoya has a very good relationship with his outpatient team. Feedback from the housing staff is that Mr. Ogunkoya is pleasant and engaging.
22No further evidence was called.
Final Submissions
23Dr. Darby submitted that Mr. Ogunkoya has had a good year and that his transition to the community has gone well. He is on a positive trajectory. Dr. Darby reminded the Board of the severity of the index offences in submitting that a detention order was still warranted. It is felt that if Mr. Ogunkoya participates in therapeutic programming things will go well for him. However, given the early days of his community placement, Dr. Darby’s opinion is that Mr. Ogunkoya represents a significant threat to the safety of the public and that a detention order is necessary, especially with respect to housing approval and rapid decompensation. Dr. Darby stated that Mr. Ogunkoya’s municipal address, in the event that the Board considered a conditional discharge, is 11 Henderson Avenue, Brampton, Ontario.
24The Crown congratulated Mr. Ogunkoya on having a good year; but agreed with the hospital that, given the early days of his community housing, a detention order was still necessary and appropriate. Mr. Ogunkoya’s stability in the community still had to be tested.
25Ms. Feldman submitted that an absolute discharge was the correct Disposition as the civil system under the Mental Health Act would be sufficient to manage Mr. Ogunkoya’s risk. He has been compliant with his medication and says he will continue to take it. He is stable in the community and continues living in SHIP accommodation where he can remain.
26Ms. Feldman made no direct submission on the issue of significant threat. While Ms. Feldman asked the Board to consider an absolute discharge, she did not challenge the issue of significant threat. In submitting her client’s request for a conditional discharge, she would, of course, be joining issue with the hospital and the Crown on the issue of significant threat thus allowing it to proceed, on that point, as a joint submission.
27Ms. Feldman also stated that in the event the Board declined to grant an absolute discharge, a conditional discharge was necessary and appropriate and the least onerous and least restrictive in the circumstances of the case. She submitted that the Board could, as a condition, specify Mr. Ogunkoya’s address, and the fact that he was willing to have a consent to treatment clause included in his Disposition. She stressed that Mr. Ogunkoya has had a good last year and has now enjoyed four years of stability.
Conclusion
28The Board was divided in its opinion. The Majority of the Board found that a conditional discharge was the necessary and appropriate Disposition and would be sufficient to manage Mr. Ogunkoya’s risk in the community. The Minority agreed with the hospital and the Crown and would have ordered no change to Mr. Ogunkoya’s current Disposition being a detention order with privileges up to and including living in the community.
29The Board unanimously and independently finds that Mr. Ogunkoya continues to represent a significant threat to the safety of the public. He suffers from a major mental illness namely, schizophrenia, the symptoms of which include paranoid delusions which have caused him to become aggressive and engage in violent behaviour against members of the public. While he is currently adherent with his medication, he has had a history of noncompliance and has experienced a significant deterioration in his mental status. His reasons for continuing to take his medication are not internally motivated. He does not believe that medication will help him deal with his illness. In these circumstances, it is Dr. Darby’s opinion that Mr. Ogunkoya remains likely to engage in violent behaviour similar to the index offences. This is especially so because Mr. Ogunkoya adamantly refuses to attend therapeutic programming to help him address his mental illness.
30Having found that Mr. Ogunkoya continues to represent a significant threat to the safety of the public, the Board must consider the necessary and appropriate disposition taking into consideration the criteria set out in s. 672.54 of the Criminal Code, which includes the need to protect the public from dangerous persons, the mental condition of the accused, the integration of the accused into society and the other needs of the accused.
31The majority of the Board finds that Mr. Ogunkoya’s risk can now be managed with a conditional discharge. He now has permanent housing which he enjoys. Mr. Ogunkoya complies with the terms of his disposition and a term of the disposition will stipulate that he reside at 11 Henderson Avenue, Brampton, ON. Housing is no longer a stressor and the concern that he would wind up living in a shelter is no longer present. Notwithstanding his issues with insight, he has not exhibited any violent behaviour over a four-year period under Board supervision and the index offence took place five years ago. He has specifically given his consent to take medication as prescribed by his doctor and this will be a term of the disposition. He has been successful in his transition to community living for approximately half a year and will have the ongoing support of his housing staff and the outpatient forensic team. He gets along with his treatment team and works well with it. The provisions of the Mental Health Act would be sufficient to help manage his risk to the community.
32Under the circumstances, a conditional discharge is the necessary and appropriate disposition and the least onerous and restrictive disposition which can be made. We do expect that Mr. Ogunkoya will participate in recommended programming in the upcoming year to further progress in his reintegration.
REASONS FOR DISPOSITION OF THE MINORITY
(Dr. L.E. Cappe and Hon. C. Nelson)
33After careful review, we respectfully disagree with the Disposition of the Majority. We do agree that the threshold for a finding that Mr. Ogunkoya continues to represent a significant threat to the safety of the public has been met. However, we agree with the hospital and the Crown that a detention order subject to the same conditions as last year is still the necessary and appropriate disposition. Mr. Ogunkoya has only been in the community since September 2024. While doing well in his community placement it is still in its early days. He remains rigid in his thinking and adamantly refuses to engage in therapeutic programs which Dr. Darby states will be important for him to do in order to become well. He is medically adherent but does not believe he needs to be on medication to treat his illness. This sends us a warning signal. He does not really believe he is ill. He is very much a loner and refuses to do any groups as groups were not ordered in his Disposition. He minimizes his index offences.
34We accept the evidence contained in the Hospital Report that a longer period of stability together with some engagement in therapeutic programming is necessary in order for him to move towards a conditional discharge and then possibly an absolute discharge. We accept that the provisions of the Mental Health Act may well facilitate treatment of a decompensation but is not likely to prevent a decline in Mr. Ogunkoya’s mental state before the point at which he could be admitted for treatment. Therefore, the Mental Health Act is unlikely to serve as a sufficient risk mitigation tool.
35In conclusion, the Minority wishes to acknowledge the fact that Mr. Ogunkoya may well be on a good trajectory now that he has stable housing. The Minority members recognize that he has made gains but would encourage him to take advantage of the many therapeutic programs that are available to him so that his risk can be further alleviated.
DATED this 2nd day of June, 2025, at the City of Toronto, in the Toronto Region.
Hon. C. Nelson Legal Member
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Office of the Registrar Ontario Review Board