Ontario Review Board
Re: Daniel Frizzell
ORB File No: 7150
Hearing held on: Monday, April 28, 2025
Place of hearing: Ontario Shores Centre for Mental Health Sciences 700 Gordon Street, Whitby
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. G. Beasley Members: Dr. B. Sheppard (via Zoom) Dr. W. Loza Ms. C. Murray Mr. A. Bouvier
Parties Appearing:
Accused: Daniel Frizzell Counsel: Mr. A. Schieck
The person in charge of hospital: Representative: Dr. M. Pearce
Attorney General of Ontario: Counsel: Ms. N. MacDonald
REASONS FOR DISPOSITION
(Dated June 4, 2025)
Introduction
On May 9, 2017, the accused Daniel Frizzell, was found not criminally responsible on account of mental disorder on a charge of arson, with reckless regard to human life and possession of incendiary material, both contrary to the Criminal Code of Canada.
By reason of a Disposition of the Ontario Review Board (“ORB”) dated May 16, 2024, he was ordered to be discharged to the community from the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) subject to a number of conditions.
On April 28, 2025, the ORB convened a hearing at Ontario Shores for the purposes of the annual review of Mr. Frizzell’s Disposition pursuant to s. 672.81(1) of the Criminal Code of Canada. Mr. Frizzell was present and represented by his counsel, Mr. Schieck. Ms. MacDonald appeared as counsel for the Attorney General of Ontario and Dr. Pearce represented the hospital.
Prior to the hearing of any evidence, Dr. Pearce advised the panel that due to recent circumstances the hospital position, which had been outlined in the Hospital Report as a recommendation for an absolute discharge, had changed. The hospital is now recommending a continuation of the current conditional discharge but with the deletion of a number of conditions from the Disposition. Ms. MacDonald supported the revised recommendation of the hospital. Mr. Schieck stated that his client was disappointed in the changed recommendation and that he would be making submissions in support of an absolute discharge. Mr. Schieck was offered the opportunity to consider an adjournment application in light of the significant change in the hospital’s position. Mr. Schieck stated that he had considered the option of requesting an adjournment but instead elected to proceed with the hearing as scheduled.
Index Offence
- The circumstances of the index offence as taken from the Hospital Report are as follows:
“The accused, Mr. Daniel Frizzell, was residing at 92 Albert Street South, unit D20, City of Kawartha Lakes. He lived with his mother, Ms. Debra Frizzell and his roommate and friend, Mr. Evan Powless. The residence is a two-story city-owned dwelling and is part of a multi-unit row house complex. Unit D20 is surrounded by adjacent and attached family dwelling units which are all occupied by other families.
Mr. Frizzell was diagnosed with psychosis and multi[ple] personality disorder. He was off his medication which was believed to be one of the precipitating factors in this incident. His mother suffers with severe mobility issues and was reliant on a walker to assist with moving around. At the time of the index offences, she was only able to walk upstairs when assisted by another person.
On March 26, 2017 at approximately 6:39 PM, Mr. Frizzell was present inside his residence with his mother and roommate. Mr. Frizzell came to the staircase and began making incoherent accusations at his roommate while his roommate and his mother were down in the living room. Mr. Frizzell believed that Mr. Powless had been entering his room and stealing from him. Both Ms. Frizzell and Mr. Powless attempted to get Mr. Frizzell to come downstairs and talk things over, however, he refused. Ms. Frizzell told him that he needed to go back on his medication as he had been refusing to take it. Mr. Frizzell went upstairs and Ms. Frizzell then contacted police to have officers attend to speak with him regarding his refusal to take his medication.
At that time, Mr. Frizzell gathered a small “jerry” can of gas which he had in his bedroom. He was told to take it out of the house three days prior by his mother but he ended up leaving it in his closet instead. Mr. Frizzell went to Mr. Powless’ room which was right next door to his bedroom and poured gasoline on Mr. Powless’ locked bedroom door. Mr. Frizzell then lit the gasoline on fire causing the door to immediately ignite in flames. This action caused both smoke alarms in the house to activate. As this happened, Ms. Frizzell was still on the phone with police and reported Mr. Frizzell was lighting the house on fire. Police and fire crews were immediately dispatched.
Mr. Powless ran upstairs to see fire rising halfway up his door. He was able to gather and use a nearby garbage can filled with water from the nearby bathroom to put the fire out. The smoke by that point had become quite thick causing Mr. Powless to cover his face with a watered-down bandana. He decided to wait upstairs until Mr. Frizzell was clear of the area out of fear that he may do something else. As this was occurring, Mr. Frizzell went downstairs and was told by his mother to get the cat and to turn off the smoke alarms. Mr. Frizzell went back upstairs to get the cat out and then came down and turned the power off to the residence through the breaker panel. Ms. Frizzell told everyone to get out of the house so all three parties departed outside.
Police arrived on scene as the three were exiting the residence. Police were familiar with Mr. Frizzell and he was placed under arrest. Search incident to arrest yielded a black BIC lighter in his front hoodie sweater pocket believed to be used to ignite the gasoline. Fire crews responded to assist with ventilation. No parties sustained injuries as a result.
While on route to the station, Mr. Frizzell made an utterance to police after being cautioned that he did it because he was off his medication and because Mr. Powless had stolen something from him in the past”.
Criminal History
- Mr. Frizzell had one prior conviction for theft under $5000 in 2016 for which he received 12 months’ probation and a $100 fine.
Personal History and Background
- Mr. Frizzell’s background and history are set out in the Hospital Report which was filed as an exhibit at the hearing. For that reason, there will be no repetition of the details. Mr. Frizzell was born in Toronto. He was an only child. His mother left his father when he was 1 year old due to physical abuse. Mr. Frizzell was raised in Lindsay, Ontario. Although his parents attempted to reconcile a number of years later that also ended for the same reason. It was reported that Mr. Frizzell struggled in school and achieved only a grade 8 education. Although he attended high school he was in a program for students with special needs. Early on he was diagnosed with ADHD and placed on Ritalin. This resulted in an improvement in his behaviour which had previously been difficult and caused him to be suspended or expelled from school. Mr. Frizzell has never had a job. He has had a number of relationships, the longest of which was with a woman who is reported to have had mental health difficulties of her own. Prior to the commission of the index offences, Mr. Frizzell had never lived independently. He had resided with his mother all of his life. His contributions to the home were doing housework and shopping. Following the index offence he was prohibited from residing with his mother. Mr. Frizzell is supported by ODSP.
Evidence
The evidence at the hearing was provided by Dr. Pearce who is Mr. Frizzell’s treating psychiatrist and the author of the Hospital Report which was filed as an exhibit. Dr. Pearce stated that he wanted to provide the panel with an update of the circumstances which led to the hospital’s change in position. However, he stated that to be clear there had been no incidents of concern with Mr. Frizzell throughout the past reporting year. He has remained compliant with his medication and has been residing in an apartment in Lindsay, Ontario. There has been no indication that he has been using substances.
Dr. Pearce stated that during a chart review last week he became aware that Mr. Frizzell had told the nurse practitioner that once he obtained his absolute discharge he was going to use cannabis. This was a significant change from Mr. Frizzell’s previously stated position that he was never going to use cannabis again. As a result, at a case conference, the treatment team concluded that the risk to the safety of the public was heightened by the potential use of cannabis to the point that Mr. Frizzell would be considered a significant threat. The team decided that the necessary and appropriate Disposition would be one which mimicked as closely as possible the terms of an absolute discharge. This would involve deleting conditions which prohibited Mr. Frizzell from using alcohol and drugs including marijuana, allowing him to possess incendiary devices, and deleting the consent to treatment provision. With those changes to the recommended Disposition, the treatment team were also supporting a six-month review of the Disposition in order to review Mr. Frizzell’s behaviour over the early part of the next reporting period. Beyond that, Dr. Pearce stated that Mr. Frizzell had had a very good year and he expected him to continue to do well in the future.
In response to questions from Ms. MacDonald, Dr. Pearce agreed that last year’s Reasons reflected a concern that Mr. Frizzell would represent a moderate risk to the safety of the public if he were to fall away from treatment and return to substance use. Dr. Pearce agreed that that was the same scenario which had now arisen given Mr. Frizzell’s most recent comments. He stated that although Mr. Frizzell might continue to represent a moderate risk, the treatment team recognized the success which he had had in the community over the past reporting year. Dr. Pearce said he had not yet had the opportunity to speak to Mr. Frizzell about his stated intention to return to marijuana use and that this was a primary issue with respect to assessing his risk to the safety of the public. Dr. Pearce acknowledged that in the past reporting year Mr. Frizzell had been living with his girlfriend which was a fact not shared with the treatment team. He had also in the past stated that he did not intend to use substances and stated that the consumption of cannabis was “not good for him.” Ms. MacDonald asked whether this was an indication that Mr. Frizzell was being deceptive with the treatment team. Dr. Pearce acknowledged that Mr. Frizzell had not always been forthcoming in the past. Dr. Pearce said that the purpose of the proposed amendments was to be able to monitor Mr. Frizzell’s mental status in the event that he did return to marijuana use to determine how it might affect his risk. With respect to medication compliance, Dr. Pearce said that Mr. Frizzell is on long-acting injectable antipsychotic medications so that should not be a problem. The concern might be if Mr. Frizzell’s use of marijuana resulted in a decompensation in his mental status that he might stop accepting medication if he were no longer under the jurisdiction of the ORB.
Mr. Schieck suggested that Mr. Frizzell had been forthcoming to the nurse practitioner with his discussion about the potential of using cannabis if he were granted an absolute discharge. Dr. Pearce agreed with this comment. Dr. Pearce also acknowledged that when asked specifically about residing with the girlfriend, Mr. Frizzell did acknowledge that they were. Dr. Pearce agreed that Mr. Frizzell appeared to be honest about discussing his future plans. Dr. Pearce agreed that with the proliferation of marijuana stores it was available everywhere in the community, but Mr. Frizzell had not used cannabis or alcohol in the past reporting year. If an absolute discharge were to be granted, Mr. Schieck asked what plans the treatment team had for continuing Mr. Frizzell’s treatment in the community. Dr. Pearce stated that it was the intention to discharge Mr. Frizzell to community supports. This would take a couple of months until those supports were in place and in the interim the outpatient team would continue to monitor and support Mr. Frizzell. Dr. Pearce stated that he did not know if Mr. Frizzell would stop using cannabis if he were asked by the treatment team. He acknowledged that the test for significant threat for Mr. Frizzell was a “close call” but that this most recent information about the use of marijuana tipped the balance in favour of significant threat. Dr. Pearce characterized this as a cautious approach to Mr. Frizzell’s assessment. Dr. Pearce agreed that Mr. Frizzell had stated that marijuana could have caused him problems in the past. The question was why he had now changed his mind with respect to future use. He agreed that in the past Mr. Frizzell would have been considered to have mild to moderate use.
In response to questions from the panel, Dr. Pearce stated that with Mr. Frizzell’s stated intention to use, it becomes a very real possibility that he might consume cannabis in the future. It is this possibility which in the treatment team’s opinion raises the level of risk to significant threat. Dr. Pearce was asked whether or not personality-based issues were a factor in the risk assessment given Mr. Frizzell’s demonstrated anger in the past. Dr. Pearce agreed that it was still a factor but noted that Mr. Frizzell had matured and that there had been no recent evidence of verbal or physical aggression in the community. He attributed this to Mr. Frizzell’s increasing maturity and the support he was receiving while living in the community. Dr. Pearce stated that the ACT team were going to withdraw services from Mr. Frizzell because in their opinion he does not need the level of service which they provide. Dr. Pearce stated that the treatment team would want to see six months of stability in the community before revisiting the recommendation for an absolute discharge. He stated that the abstinence from substances had not been the focus of the treatment team in the past due to Mr. Frizzell’s stated intention to abstain.
Dr. Pearce stated that he did not believe that cannabis use was involved in the commission of the index offence. Dr. Pearce has not discussed with Mr. Frizzell whether he intends to use alcohol. He has not yet had an opportunity to assess Mr. Frizzell’s insight into the potential harm of substances since his comments to the nurse practitioner. In the event that Mr. Frizzell were discharged absolutely, Dr. Pearce stated that he thought the Mental Health Act would be of assistance but only if Mr. Frizzell was involved with a treatment team that had a psychiatrist as a member. Dr. Pearce stated that Mr. Frizzell had stopped using clonazepam several months before the hearing. He said there had been no apparent consequences nor would he expect any at this point in time. Dr. Pearce clarified that his discussion with Mr. Frizzell about using cannabis had taken place in late January of this year. It was at that time that in response to a question from Dr. Pearce, Mr. Frizzell had stated his intention not to use due to the potential problems it might cause. Mr. Frizzell’s comments to the nurse practitioner were in April of this year.
In response to a question in re-examination from Mr. Schieck, Dr. Pearce acknowledged that if the prohibition against use were removed from the Disposition and Mr. Frizzell chose not to use cannabis in the next six to 12 months, the treatment team would be no further ahead.
Mr. Frizzell gave evidence on his own behalf. He testified that it was his intention to use cannabis “once in a blue moon” for pain. He said that the medication has caused him to have significant weight gain that if he does not stop gaining weight he has been told he will need surgery. He stated that this causes him significant anxiety and is another reason he is considering using cannabis. Mr. Frizzell acknowledged that he had previously been diagnosed clonazepam to reduce his anxiety and would consider using it again. He reiterated that his intention was to use “once in a blue moon.” When asked by Mr. Schieck if there was a potential that use of cannabis could cause him problems, Mr. Frizzell stated that it would not. He elaborated by saying that he had been “sneaking using it” and was therefore confident that it would not be a problem. Mr. Frizzell stated that certain types of cannabis did cause him to become paranoid but that when using his preferred type it acted to calm him down and reduce his anxiety level.
In response to a question from Ms. MacDonald, Mr. Frizzell stated he did not see any downside risk to using cannabis. He stated that he was obtaining it from a licenced dispensary.
Dr. Pearce asked when Mr. Frizzell had started to use cannabis again. Mr. Frizzell said it was after his UDS screens in March. He stated he had used it at least twice in the last month. In March he had used a different kind of cannabis which had resulted in paranoia. He had been experimenting with different kinds of marijuana for some time. He had changed his mind about using it because of the potential that he would have to undergo surgery as a result of his weight gain. Mr. Frizzell stated that it had “slipped my mind” to tell the treatment team about his intentions to use.
In response to a question from the panel, Mr. Frizzell agreed that he had not spoken to the treatment team about the possibility of using other medications to reduce the pain from his weight gain.
Submissions
Dr. Pearce reiterated the submission made at the outset of the hearing that the necessary and appropriate Disposition was a continuation of the current conditional discharge with the recommended amendments. He acknowledged that Mr. Frizzell had a positive year in the community. However, Dr. Pearce referenced Mr. Frizzell’s “sneakiness” in his most recent use of cannabis. In particular, Dr. Pearce mentioned that Mr. Frizzell acknowledged that some use had made him paranoid on at least one occasion. Dr. Pearce said that Mr. Frizzell is discounting the risks that cannabis use represents for him and that with this most recent disclosure the treatment team need time to explore fully the level of risk he represents with cannabis use.
Ms. MacDonald acknowledged that it had been a good year for Mr. Frizzell. However, she also referenced his “deceptive” behaviour in experimenting with cannabis use without consulting with the treatment team. Ms. MacDonald also pointed to the at least one occasion where Mr. Frizzell acknowledged developing paranoia as a result of cannabis use. She supported the recommendation of the hospital for a continuation of the conditional discharge as amended.
Mr. Schieck also made reference to the good year which Mr. Frizzell had had residing in the community. He stated that Mr. Frizzell had testified to the significant weight gain which he had suffered which was reaching a point where there was a potential for surgery. Mr. Schieck acknowledged that it was a “double-edged sword” that Mr. Frizzell had been both forthcoming and deceptive at the same time with the treatment team. Mr. Schieck submitted that the “experiment” that the treatment team were looking for with respect to cannabis use had in fact taken place already with Mr. Frizzell’s use of cannabis in the past few months and that therefore the necessary and appropriate Disposition was the absolute discharge which had originally been recommended by the treatment team.
Analysis and Disposition
The threshold decision to be made by the panel is to determine if Mr. Frizzell continues to represent a significant threat. Parliament has defined that term in s. 672.5401 to mean “a risk of serious physical or psychological harm to members of the public...resulting from conduct that is criminal in nature but not necessarily violent.” Public safety has been determined by Parliament to be the paramount consideration. Thus, by the words chosen, the level of harm which could be created must be significant, not minimal or a mere annoyance.
The Ontario Court of Appeal has emphasized that the test to be applied is stringent, and there must be both a likelihood of risk materializing and the likelihood of serious harm occurring. Speculation as to the level of risk is not sufficient, and the risk of a mental health relapse is not congruent with the standard to be applied and cannot justify detention. It is recognized that the absence of violent behaviour in itself does not eliminate the risk of significant harm to the public. Similarly, lack of insight into the index offences, the discontinuation of medication and substance abuse are all factors to consider (See: Re: Sheikh, 2019 ONCA 692; Re: Krist, 2019 ONCA 802; Re: Abdulle, 2019 ONCA 812)
The panel is unanimous in accepting the opinion of Dr. Pearce and the treatment team that Mr. Frizzell continues to be a significant threat to the safety of the public. At the time of the preparation of the Hospital Report with its original recommendation of an absolute discharge, Mr. Frizzell had demonstrated significant success in residing in the community. He has significant support available to him which were going to continue in the event that he was no longer under the jurisdiction of the ORB. In its summary, the Hospital Report made particular reference to Mr. Frizzell’s insight into his treatment needs and his stated intention to remain involved with both his care providers and to continue with his medication. The summary also stated, “he plans to continue to avoid substances of abuse and his insight in this regard is well developed.”
Dr. Pearce testified that in late January of this year he had specifically discussed with Mr. Frizzell whether or not he intended to use substances in the future. Mr. Frizzell had at that time stated that he did not because it could “cause problems.” In April of this year, in a meeting with a nurse practitioner, Mr. Frizzell had stated a future intention to use in the event that he were granted an absolute discharge. This change of mind as a stated intention to use alone, was enough to trigger a change of recommendation by the treatment team who had accepted Mr. Frizzell’s previous declaration to remain abstinent. In the course of the hearing, Mr. Frizzell further admitted that he had in fact been using cannabis for a number of months. He elaborated that he had used it in a fashion which was designed to evade detection by the treatment team by avoiding use at times when the UDS would provide a positive result. In the course of his use, Mr. Frizzell acknowledged that certain types of cannabis had resulted in him developing paranoia.
In his submissions, Mr. Schieck referred to these disclosures as a “double-edged sword.” The panel accepts this as an apt and appropriate description. Although Mr. Frizzell is to be credited with the candor with which he testified, that credit does not overcome the significant concern that his change of mind raises with respect to his level of risk. In light of this disclosure, and in particular in light of the evidence that there has been some resulting paranoia from cannabis use, it is entirely appropriate that the treatment team be given the opportunity to re-assess the level of risk which Mr. Frizzell would pose to the safety of the public were he not under the jurisdiction of the ORB.
The hospital report included a detailed analysis of risk factors including those which might result in future violence. At page 35 the report states:
“Primary Re-Offence Scenario for Future Violence: According to the HCR-20V3 a re-offence scenario “is not a prediction about what will happen; rather, it is a projection about what could happen” (pg. 57). With that in mind, a possible re-offence scenario, given a transition to the community under an Absolute Discharge, includes the following: Following an increase in psychosocial stress (e.g., financial, interpersonal), his decision-making may become impaired such that he impulsively resorts to violence when in perceived conflict. For instance, if he were to become employed, there is concern that perceived problems with co-workers or customers may escalate to physical violence. A second viable re-offence scenario for Mr. Frizzell may emanate from medication non-adherence and/or relapse into substance use, precipitating a reemergence of symptoms of psychosis. In this scenario, Mr. Frizzell may present as increasingly paranoid and labile without adequate support or mastery of coping strategies to help manage his symptoms and emotions. He would likely perceive someone as threatening or betraying him leading to conflict that quickly escalates into physical violence. Potential victims are likely to be those in Mr. Frizzell’s immediate vicinity.(emphasis added)”
As stated by Dr. Pearce in his evidence, a cornerstone of Mr. Frizzel’s treatment and the decision of the treatment team to recommend an Absolute Discharge was his stated intention to remain abstinent form substance use and an acknowledgment that cannabis could cause him “problems.” Not only was this no longer his intention, in fact he had already begun to use cannabis while circumventing detection from UDS testing and he had already experienced paranoia as a result. The panel accepts Dr. Pearce’s opinion that although “a close call,” the threshold of significant threat has been met. As set out above in s. 672.54 of the Criminal Code, the paramount concern of the panel is to the safety of the public. Therefore, the panel is unanimous in concluding that the necessary and appropriate Disposition is a continuation of the current conditional discharge with the suggested amendments.
During the evidence and in the course of submissions, both Dr. Pearce and Mr. Schieck raised the possibility of a six-month review being ordered by the Disposition. The panel are unanimous in concluding that this is not necessary. As the next reporting year unfolds, should any of the parties be of the opinion that a review of the Disposition be necessary, then the Criminal Code provides a mechanism for such a review to be requested and ordered by the Board.
DATED this 4th day of June 2025, at the City of Toronto, in the Region of Toronto.
Mr. G. Beasley Alternate Chairperson
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Office of the Registrar Ontario Review Board