Re: Howard Kelly
ORB File No: 5131
Hearing held on: Thursday, June 5, 2025
Place of hearing: Ontario Shores Centre for Mental Health Sciences
Pursuant to: Sections 672.81(1) and 672.81(2.1) of the Criminal Code
Before:
Alternate Chairperson: Ms. L. Banks
Members: Dr. T. Wilke Dr. M. Kalia Mr. D. D’Intino Mr. S. Duffy
Parties Appearing:
Accused: Howard Kelly Counsel: Ms. J. Boissonneault
The person in charge of hospital: Counsel: Ms. A. Marshall
Attorney General of Ontario: Counsel: Ms. N. MacDonald
REASONS FOR DECISION AND DISPOSITION
(Dated June 18, 2025)
Introduction:
On July 9, 2008, Mr. Howard Kelly was found not criminally responsible on account of mental disorder (“NCR”) on charges of uttering threats to cause death or bodily harm and failure to comply with probation order, both contrary to the Criminal Code of Canada (the “Criminal Code”). Mr. Kelly is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated June 7, 2024 detaining him on the Forensic Program at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores” or the “hospital”) subject to a number of privileges up to and including living in the community in accommodation approved by the person in charge of the hospital. His Disposition also requires that he refrain from contact or communication, direct or indirect, with Karen Kelly.
By letter dated May 12, 2025, the hospital notified the ORB under s. 672.56(2) of the Criminal Code that on April 1, 2025 Mr. Kelly went AWOL from the hospital while using an indirectly supervised hospital and grounds pass. On his return to the hospital the following evening, the hospital cancelled his indirectly supervised passes on hospital grounds. The hospital notified the Board of this significant increase in the restriction of Mr. Kelly’s liberty.
On June 5, 2025, the ORB convened a hearing at Ontario Shores for the annual review of Mr. Kelly’s Disposition and to review the restriction of his liberty. Mr. Kelly attended his hearing and was represented by counsel, Ms. Boissonneault.
The issues to be determined at this hearing are whether Mr. Kelly poses a significant threat to the safety of the public, and if so, the necessary and appropriate Disposition to manage that risk having regard to the criteria set out in s. 672.54 of the Criminal Code. The Board was also tasked with reviewing the restriction of liberty in order to determine whether it was reasonable and warranted and represented the least onerous and least restrictive course of action available to the hospital.
For the reasons set out below the Board finds that Mr. Kelly continues to pose a significant threat to the safety of the public and that the maintenance of the current Disposition, namely a Detention Order, on the same terms and conditions.
With respect to the hospital’s decision to temporarily cancel Mr. Kelly’s indirectly supervised hospital and grounds passes in response to his unauthorized leave of absence (“ULOA”) from the hospital, the Board finds that that decision was reasonable and warranted, and in the circumstances, represented the least onerous and least restrictive course of action available to the hospital to manage the heightened risk presented by Mr. Kelly at that time. The Board also finds that the ongoing restriction also remained reasonable and warranted and least onerous and least restrictive until his privileges were reinstated on May 7, 2025.
Index Offences:
- Details of the index offences are extracted from the Hospital Report to the ORB dated May 29, 2025 (the “Hospital Report”), as follows:
“The accused before the court, Howard Kelly, is a schizophrenic with a long history of mental instability. The accused in the past has made threats to various members of his family and the public. On Sunday, October 13, 2007, the victim was in her residence when she heard a knock on her door. The victim attended the door and observed her brother, Howard Kelly, standing on the porch with some papers in his hand. The victim, knowing her brother’s instability, opened the door a crack and asked her brother what he wanted. The accused replied that he wanted to talk. Due to the late hour, the victim declined and attempted to close the door. The accused pushed on the door, and a pushing match ensued during which the victim managed to close the door. The accused states to the victim as the door is closing, ‘I am going to kill you’, in an aggressive manner. The victim, fearing for her safety, contacted the police. Uniformed officers attended the scene but were unable to locate the accused, who had fled the scene in an unknown direction. On Saturday, October 20, 2007, the accused had attended the Scarborough General Hospital located at 3050 Lawrence Avenue East, Toronto, for medical appointment, and was recognized by hospital staff as a wanted person related to a threat on an employee. Officers from 43 Division attended and arrested him on the strength of this outstanding warrant for Threatening Death. Since there were other outstanding manners held by 43 Division, he was transported to 43 Division, where he was investigated, charged accordingly, and held for a bail hearing.”
Positions of the Parties:
At the commencement of the hearing, all parties were canvassed with respect to their initial recommendations to the Board. Counsel for the hospital recommended no change to the current Disposition. With respect to the hospital’s decision to temporarily cancel Mr. Kelly’s indirectly supervised hospital and grounds passes in response to his ULOA, counsel for the hospital submitted that the decision was reasonable and warranted, and in the circumstances, represented the least onerous and least restrictive course of action available to the hospital both initially, when imposed on April 2, 2025, and throughout the period of restriction until May 7, 2025.
Ms. MacDonald, on behalf of the Crown, supported the hospital’s position in all respects.
Ms. Boissonneault indicated her support of the hospital’s recommendation and conceded the issue of significant threat and agreed with the recommendation for the continuation of Mr. Kelly’s existing Disposition. Counsel advised her client took issue with the restriction of his liberty, both initially and throughout its duration.
All parties maintained their respective initial positions in closing submissions.
Personal Background:
Mr. Kelly’s personal history is set forth in detail in the Hospital Report and last year’s Reasons for Disposition which are relied upon herein. Briefly stated, he is a 69-year-old man who has a long-standing history of mental instability. His parents separated when he was young and, although they later reunited, Mr. Kelly was homeless when he was a teenager. He completed high school but never consistently worked and he currently receives ODSP. He has a history of abusing alcohol, marijuana and crack cocaine.
Mr. Kelly has a lengthy criminal record, which commenced in 1983 and ended in 2007. His criminal record totals 16 convictions including three convictions for assault, three convictions for uttering threats, three convictions for criminal harassment, one conviction for threatening bodily harm and other convictions for break and enter and theft, theft and failing to comply with a probation order.
Symptoms of his illness first manifested at age 17 and his first contact with a psychiatric facility occurred in 1973. There were subsequent admissions to the Centre for Addiction and Mental Health, Toronto Western Hospital, Whitby Mental Health Centre and Scarborough Hospital, all as set forth in detail in the Hospital Report. Mr. Kelly has a history of elopements and noncompliance with medication. Over the years, there has been little attenuation of the symptoms of his illness despite pharmacological treatment. His symptoms have included: auditory hallucinations, grandiose and persecutory delusions, and severe disorganization of thought.
Current Diagnoses:
- Mr. Kelly’s current diagnoses are:
Schizophrenia;
Cannabis Use Disorder, moderate;
Antisocial Personality Disorder; and
Narcissistic Personality Disorder.
Evidence at Hearing:
The evidence at this hearing consisted of the Hospital Report as well as the viva voce evidence of Dr. B. Chuong, who has been Mr. Kelly’s forensic psychiatrist since January 2024. The doctor adopted the contents of the Hospital Report, including the treatment teams’ unanimous finding that Mr. Kelly continues to represent a significant threat to the safety of the public.
Over the course of the year in review, Mr. Kelly remained on the FCRU, a general forensic unit. He did not engage in any incidents of sexual or physical aggression over the year in review.
Mr. Kelly suffers from treatment-resistant Schizophrenia and he remains incapable to consent to psychiatric treatment. Under the consent of his mother as his Substitute Decision Maker (“SDM”), he receives a daily oral dose of an antipsychotic medication, Clozapine. The dose of this medication was titrated up by 100 mg over the year under the authority of his SDM. Mr. Kelly is also treated with Valproic Acid, a mood stabilizing medication.
Despite adherence with his prescribed medications, Mr. Kelly continues to present with residual grandiose delusions, including the belief that he is a doctor and holds numerous PhDs from various universities. As has been the case in past years, his thought content continues to be disorganized, tangential and illogical, exhibiting flight of ideas and perseverance on grandiose delusions, and perceived entitlement. At times, Mr. Kelly expressed paranoid thoughts about the hospital and treatment team but he consistently denied auditory hallucinations, suicidal and/or homicidal ideation. This presentation has been consistent for several years. The team is considering further titration of his Clozapine; however, Mr. Kelly remains resistant.
Staff reported that Mr. Kelly complains of experiencing a “mental fog” and objectively, he presents with deficits in cognitive skills and memory. The Hospital Report indicates that: “Mr. Kelly was assessed by a geriatric psychiatrist this review period for possible neurocognitive concerns after a screening tool indicated he may be experiencing some cognitive impairment. Although he was cooperative with the initial consultation, he declined any of the recommendations such as obtaining an MRI of his brain. The clinical team has continued to encourage him to obtain this investigation.” Dr. Chuong stated that Mr. Kelly continues to withhold his consent to this investigation.
In response to questions raised by panel members, Dr. Chuong acknowledged that there is conflicting information regarding Mr. Kelly’s history of conduct-disordered behaviours. Some sources suggest such behaviours were present but others do not. However, he was never formally diagnosed with conduct disorder. His involvement with the criminal justice system began in his late twenties which raises questions about the appropriateness of an antisocial personality disorder diagnosis. Mr. Kelly continues to display antisocial traits as he approaches the age of 70. Dr. Chuong acknowledged that these traits are more likely attributable to the effects of chronic psychotic illness, possible neurocognitive decline, and the long-term impact of institutionalization rather than true personality pathology alone. Dr. Chuong also agreed to adopt a more cautious and measured approach when considering diagnoses of antisocial and narcissistic personality disorders. As indicated, Mr. Kelly declined to participate in an MRI but may be willing to undergo neuropsychological testing. However, the hospital currently lacks in-house resources to provide such assessments. Dr. Chuong also concurred that re-evaluating the PCL-R would be helpful in obtaining a more accurate understanding of Mr. Kelly’s current clinical presentation.
Dr. Chuong testified that Mr. Kelly went on two unauthorized leave of absences from the hospital over the past reporting year. Specifically, on the evening of June 27, 2024, he did not return to the unit when exercising a hospital grounds indirectly supervised pass. A CCTV camera recorded him entering a taxi. Mr. Kelly was located the same evening by police and returned to hospital. He explained that he wanted some “fresh air”. Dr. Chuong stated that he was not particularly forthcoming about the reasons for his AWOL. He did not engage in substance use on that occasion.
More recently, on April 1, 2025, while out on an indirectly supervise hospital pass, Mr. Kelly failed to return to the unit at the scheduled check-in time. A search was conducted. The following day, Mr. Kelly returned of his own volition to the hospital grounds at night and was seen smoking in front of a building. He was asked to return to the unit and he complied. He was questioned as to his whereabouts over the preceding 36 hours and he stated that he went to a motel. He later advised that he used alcohol and cannabis while AWOL. He also missed his medications while AWOL. Upon his return to the hospital, he presented as “irritable and defiant” and was noted to be inappropriately dressed during an ice storm. There is no indication that his elopement was planned rather the doctor thought it was an impulsive decision. The doctor stated that he was not physically aggressive; however, he did present as verbally aggressive on the unit upon his return. After a few days of medication compliance with his Clozapine, he presented as more settled.
After Mr. Kelly’s return to the hospital on April 2, 2025, the hospital’s decision was to place his indirectly supervised privileges on hold. Mr. Kelly was however able to exercise staff accompanied privileges. Mr. Kelly’s indirectly supervised privileges were reinstated on May 7, 2025 after he progressed through a graduated process of re-introduction of privileges.
The clinical note prepared by his forensic case worker, Ms. T. Skeete, and entered as Exhibit 2 indicated that, in the opinion of the writer, Mr. Kelly had returned to his baseline presentation on or around April 7, 2025.
Beginning in April, 2025, Mr. Kelly began working with a behavioral therapist to target his elopement behaviors and any inappropriate sexual behaviors, both of which have been concerns with regard to any potential community placement in the past. He also began working with a forensic transitional case manager who would engage him in various activities in the community such as going to casual restaurants for meals, which Mr. Kelly had not been able to do for some time. There have been no further instances of AWOL activities.
When asked if there was any less restrictive measure the hospital might have taken in response to Mr. Kelly’s episode of ULOA, relapse to substance use and non-adherence with his medications, the doctor responded in the negative.
Dr. Chuong confirmed that following last year’s ORB hearing, Mr. Kelly’s Disposition was amended so that cannabis use was no longer prohibited. The doctor stated that Mr. Kelly did not engage in cannabis use for several months following the issuance of last year’s ORB Disposition but he has used cannabis over the last reporting year on an inconsistent basis.
Dr. Chuong stated that Mr. Kelly has been generally compliant with providing samples for urine drug screens (“UDS”) for illicit substances. When screens return positive for cannabis use, there have been no notable decompensations in his mental state over the past year in review. Of note, the day before his AWOL episode on April 1, 2025, his UDS returned positive for cannabis. The doctor stated that it is possible that there is a connection between Mr. Kelly’s cannabis use and his AWOL incident but it is not certain. All that is clear is that when Mr. Kelly returned to the hospital on April 2, 2025, he was noted to be off his baseline presentation; however, the doctor noted that he had also missed a dose of his Clozapine medication.
Over the review period, Mr. Kelly had his indirectly supervised hospital grounds privileges either suspended or cancelled on a number of occasions due to issues with supervision adherence such as going on unauthorized leave of absences, or failing to report back at agreed upon times. As a result, Mr. Kelly did not progress towards indirectly supervised community privileges. When Mr. Kelly was able to use his hospital grounds privileges, he would walk around the hospital, utilize the telephone, or use the bank machine. Currently, he does not have unaccompanied ground privileges.
In response to a question posed by a panel member, the doctor advised that the treatment team has made multiple attempts to engage Mr. Kelly in group programming; however, he monopolizes or derails the groups, has no identifiable goals, and does not internalize the content covered.
Mr. Kelly’s insight is extremely limited. He does not believe he has a mental illness or that he requires any medication. He has repeatedly stated that both his prescribed medications were being administered at too high a dose. He has also stated on numerous occasions that if he were to receive an Absolute Discharge, he would discontinue his medications and resume substance use. The doctor stated that Mr. Kelly believes substance use has been helpful to him in the past. Mr. Kelly does not agree that he has presented as a risk to members of the public. He consistently denies having made threats or harassing others, and is dismissive and minimizes any potential harm that results from his behaviour.
In terms of the plan for Mr. Kelly’s reintegration into the community, Dr. Chuong stated that Mr. Kelly is not currently on any housing waitlists. The doctor advised that an updated Occupational Therapy Assessment will be completed when he is closer to being ready for discharge. The treatment team anticipates that when ready for discharge to the community, Mr. Kelly will require a highly supervised group home that can provide ongoing monitoring of his elopement risk, substance use, phone calls/letters, interpersonal interactions with peers, medication adherence, and mental health status.
Mr. Kelly is supported by his mother who speaks with him frequently. He does not have an Approved Person.
Mr. Kelly is assessed as being in the “high” risk category for elopement, and he has an elevated actuarial score of 27 on the PCL-R. Over the year in review, he went AWOL on two occasions; however, he did not engage in episodes of known violence.
Dr. Chuong endorsed the Clinical Risk Assessment that concludes Mr. Kelly’s risk of violence remains in the “moderate” range under his current Disposition, and would be in the “high” range should he be granted a Conditional or Absolute Discharge.
Dr. Chuong confirmed that the hospital continued to require the authority of a Detention Order for two key risk management reasons. The first is that the Disposition allows the hospital to maintain control over his placement in the community when he is ready for discharge. This allows the hospital to ensure that he is well supported, supervised and monitored to safely manage his risk. Further, a Detention Order Disposition grants the hospital the authority to rapidly readmit Mr. Kelly to the hospital if, when living in the community, he suffers a decompensation and his mental state whether as a result of breakthrough symptoms, medication non-compliance, relapse to substance use, or otherwise. The doctor advised that the Mental Health Act would be insufficient to proactively address Mr. Kelly’s risk to the safety of the public.
No further evidence was called by the parties.
Analysis and Conclusions:
The Board finds that Mr. Kelly continues to represent a significant threat to the safety of the public. Mr. Kelly suffers from a major mental illness and he continues to experience psychotic symptoms and remains grandiose in his thinking. Over the year in review, he went AWOL on two occasions. On his most recent AWOL, he consumed alcohol and cannabis and became medication non-compliant. Mr. Kelly continues to express limited insight across all domains and has a poor appreciation for the importance of his medications and abstinence from substances of abuse. Given his sub-optimal treatment and his ongoing substance use, he remains at risk of deterioration of his mental state.
According to the Hospital Report, “Mr. Kelly’s fragile, mental state and history of multiple episodes of acute worsening, coupled with his ongoing substance use and resistance to optimize his medication regime or engage in therapeutic intervention, increases the likelihood of further episodes in the future. Baring ORB oversight he is likely to discontinue medication and return to cannabis use, rapidly deteriorate in his mental state, which without a treatment team to monitor his mental health and intervene, quickly would result in Mr. Kelly, engaging in verbal and physical aggression and antisocial activities, including inappropriate sexual encounters involving vulnerable persons as he has in the past.”
The evidence before us indicates that Mr. Kelly has not yet reached the upper limits of the privileges granted to him under his current ORB Disposition, including unaccompanied community passes. Mr. Kelly requires an ongoing inpatient admission so that he can be closely monitored and supervised so that hospital staff can intervene quickly to prevent harm to members of the public should he suffer a deterioration in his mental state.
We have considered carefully whether Mr. Kelly could be safely managed under a less restrictive Conditional Discharge Disposition and have concluded that at this juncture, he cannot. The hospital requires the risk management tools afforded to it under a Detention Order including the ability to approve Mr. Kelly’s accommodation in the community when he is ready for discharge to ensure that he will be appropriately monitored, supervised and supported. Further, a Detention Order allows the hospital to intervene at an early juncture to affect a readmission to the hospital should Mr. Kelly suffer a decompensation when living in the community whether as a result of breakthrough psychotic symptoms relapse to substance use, or otherwise. Should he be under a Conditional Discharge Disposition, his readmission to hospital would likely only occur in the context of his voluntary compliance with a request to return to the hospital for admission or his satisfying criteria under the Mental Health Act for an involuntary admission. As well, his ongoing detention would require he meet Mental Health Act criteria for certification.
To his credit, there have been some gains over the year in review. Mr. Kelly has remained generally compliant with his prescribed medication and has not engaged in any incidents of physical violence or sexual aggression. As well, Mr. Kelly has enjoyed his involvement in the hospital’s newsletter.
For all of these reasons, this panel finds that the least onerous and least restrictive, as well as the necessary and appropriate, Disposition is that the current Detention Order should be maintained.
We are hopeful that moving forward Mr. Kelly will use his indirectly supervised privileges appropriately so that he can continue to progress through the privilege ladder towards full community reintegration. We are mindful that his progression has slowed due, in part, to his ULOAs and supervision violations. We remain hopeful that he will alter his trajectory going forward.
With respect to the restriction of liberty, the hospital’s decision to significantly increase the restriction of Mr. Kelly’s liberty by placing a temporary hold on his indirectly supervised hospital and grounds passes was in direct response to his unpredictable ULOA episode where he eloped from hospital overnight. We find this decision was reasonable and warranted, and in the circumstances, it represented the least onerous and least restrictive decision available at that time and throughout its duration to manage the elevated risk. His passes were re-instated on May 7, 2025 after Mr. Kelly returned to his baseline presentation, re-engaged with a behavioural therapist, and demonstrated his ability to progress in his use of privileges.
In reaching our decision, we have taken into consideration the four factors set out in section 672.54 of the Criminal Code, that is the need to protect the public from dangerous persons, the mental condition of Mr. Kelly, his reintegration into society and his other needs.
DATED this 18^th^ day of June 2025, at the City of Toronto, in the Region of Toronto.
Ms. L. Banks
Alternate Chairperson
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Office of the Registrar
Ontario Review Board