Re: Israel Msimanga
ORB File No: 7939
Hearing held on: Thursday, May 29, 2025
Place of hearing: St. Joseph’s Healthcare Hamilton, West 5th Campus Hamilton, Ontario
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. S. Clapp
Members: Dr. M. Attia Dr. T. Stirpe Mr. E. Siebenmorgen Ms. R. Chopra
Parties Appearing:
Accused: Israel Msimanga Counsel: Ms. B. Bromberg
The person in charge of hospital: Counsel: Mr. S. O’Brien
Attorney General of Ontario: Counsel: Ms. C. Gzik
REASONS FOR DISPOSITION
(Dated July 4, 2025)
Introduction:
On September 9, 2021, Israel Msimanga was found not criminally responsible (“NCR”) on account of mental disorder on charges of aggravated assault and failure to comply with probation order (x4), contrary to the Criminal Code. He is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated October 4, 2023, whereby he is detained at the Forensic Psychiatry Program of St. Joseph’s Healthcare Hamilton, West 5th Campus (“SJHCH” or the “hospital”) with privileges up to and including community living in accommodation approved by the person in charge. The Disposition also requires that Mr. Msimanga abstain from substance use, not possess any weapons, refrain from contact with the victim of the index offence, and not attend at the location where the index offence occurred.
On May 29, 2025, a panel of the Board convened at SJHCH to conduct Mr. Msimanga’s annual review pursuant to section 672.81(1) of the Criminal Code. Mr. Msimanga attended the hearing and was represented by Ms. Bromberg. The hearing was originally scheduled for October 10, 2024, but was adjourned on consent that day because the hearing was expected to take longer than the standard allotted time. Ms. Bromberg was going to request a Conditional Discharge and proposed calling two witnesses. At that time, the hospital was recommending a continuation of the Detention Order. A pre-hearing conference was held on December 3, 2024.
The Hospital Report dated May 8, 2025, was marked as Exhibit 1 at the hearing. A Good Shepherd HOMES Program Report dated April 3, 2025, was marked as Exhibit 2. In addition to the documentary evidence, Dr. Olivia Lee gave evidence. Dr. Lee is a forensic psychiatry resident working under the supervision of Mr. Msimanga’s attending psychiatrist, Dr. Olubukola Kolawole.
The issues to be decided at the hearing were whether Mr. Msimanga continues to meet the test of posing a significant threat to the safety of the public as set out in section 672.5401 of the Criminal Code, and if so, what is the necessary and appropriate Disposition, taking into account the four factors set out in section 672.54 of the Criminal Code.
Position of the Parties:
At the outset of the hearing, the parties were asked for their initial without prejudice positions. Mr. O’Brien, on behalf of the hospital, took the position that Mr. Msimanga remained a significant threat to the safety of the public, but that his risk could now be managed under a Conditional Discharge (the hospital had changed its position since the adjournment and the pre-hearing conference). The conditions recommended by the hospital were outlined at pages 49-50 of the Hospital Report, and included conditions that were similar to the Detention Order, including a residence condition and a Young1 clause.
Ms. Gzik, on behalf of the Attorney General, supported the position of the hospital. Ms. Bromberg advised that it was a joint submission.
Findings:
- For the reasons that follow, the panel found that Mr. Msimanga continues to represent a significant threat to public safety. The panel concluded that the necessary and appropriate Disposition, which is also the least onerous and least restrictive in the circumstances, is a Conditional Discharge with terms and conditions as recommended by the hospital, with the addition of a travel condition. The full list of conditions is set out at the end of these Reasons.
Index Offences:
The circumstances of the index offences are taken from the Crown Brief Synopsis and reproduced at pages 3-4 of the Hospital Report. They can be summarized as follows. On December 17, 2020, Mr. Msimanga assaulted a co-resident at a men’s shelter with a hatchet. The victim’s injuries were described as life changing and required surgery. They included a significant laceration across the bridge of his nose, to the ear, and down; with skin completely severed from his face, as well as a cut to his left hand (believed to be a defensive wound). At the time of the assault, Mr. Msimanga was subject to two probation orders prohibiting him from possessing any weapons and requiring him to keep the peace and be of good behaviour.
Mr. Msimanga has stated that he has no recollection of the incident.
Background:
Mr. Msimanga’s personal background is set out in detail in the Hospital Report and will not be repeated here. Briefly summarized, Mr. Msimanga is a 39-year-old man who was born in South Africa and came to Canada in 2008. He reported that his mother was of Ndebele descent and his father was of Zulu descent, and he was exposed to violence and turmoil in South Africa as a result of poverty and xenophobia. His parents had very busy work schedules, so he was raised by his maternal grandparents. He has one brother who was raised by other family members. Mr. Msimanga’s father died in the early 2000s. When he came to Canada he lived with his mother and brother in Toronto, until his mother’s death in 2011. After his mother died, Mr. Msimanga moved to Hamilton and lived with a girlfriend for approximately six years, until the relationship ended.
Mr. Msimanga completed high school in South Africa and had started a computer engineering program before he moved to Canada. He obtained a Personal Support Worker (“PSW”) certificate in 2014. He worked as a PSW until 2017 and then worked in construction. He was laid off in 2019, and subsequently became homeless and lived in shelters. He started associating with the “wrong crowd” and used drugs.
Mr. Msimanga had a history of marijuana and alcohol use since he was approximately 18 years old, and had used crystal methamphetamine on a regular basis since 2019. He has used substances as a means to cope with grief and stress.
Criminal History:
- Prior to the index offences, Mr. Msimanga had a criminal record that commenced in 2019 and included convictions for assault with a weapon and failing to comply with court orders.
Psychiatric History:
According to the Hospital Report, Mr. Msimanga was brought to hospital in Toronto by police in July 2009 after a verbal altercation with his mother and expressing suicidal ideation. He was released from hospital the same day to stay with his girlfriend. According to records from the SJHCH Crisis Outreach and Support Team, Mr. Msimanga contacted police in December 2018 and again in January 2019 and reported that “people were hiding in his walls and trying to hurt him and his dog” and “people were breaking into his apartment.” On each occasion, Mr. Msimanga endorsed recent crystal methamphetamine use and did not meet criteria for involuntary admission. He was provided with information regarding mental health resources, as well as supports for his substance use.
Mr. Msimanga endorsed experiencing persistent auditory hallucinations since 2018, even when he was not using substances. The voices suggested he could be harmed, made deprecating comments about him, and sometimes encouraged him to kill himself.
Following his arrest for the index offences, Mr. Msimanga was admitted to SJHCH from the Hamilton Wentworth Detention Centre on a Form 1. He was described as uncooperative, selectively mute, responding to internal stimuli, highly suspicious, disorganized in his thinking, and with poor personal hygiene. This admission lasted four months. He was found incapable of consenting to treatment and the Public Guardian and Trustee was his substitute decision-maker. He improved with treatment, although he still endorsed some auditory hallucinations, and was discharged back to the detention centre.
Since being under the jurisdiction of the Board, Mr. Msimanga has been adherent to medications and his insight has improved. He engages constructively with the treatment team and has a positive attitude towards authority. He has continued to endorse mild residual symptoms in the form of hearing voices. He has struggled to manage his substance use, and tested positive for cannabis in September and November 2022. After his first 24-hour indirectly supervised pass into the community in April 2023, he tested positive for cocaine. He has attended the concurrent disorder group and the substance use group while in the hospital.
Mr. Msimanga obtained full-time employment in May 2023. He also formed a romantic relationship with a former patient.
Mr. Msimanga’s diagnoses are: Schizophrenia; Stimulant and Cannabis Use Disorder, in remission in a controlled environment; and Alcohol Use Disorder, in remission in a controlled environment. He is capable of consenting to treatment and managing his finances.
Evidence at the Hearing:
- Given that Mr. Msimanga’s annual hearing was adjourned from October 2024 to May 2025, the Hospital Report covered a reporting period of almost 18 months. A number of significant events had occurred during that time period, which are summarized in the Clinical Risk Summary contained in the Hospital Report as follows (at pages 48-49):
“Overall, Mr. Msimanga has had a good reporting year. He was successfully discharged from Orchard 3 and transitioned to community living on November 4, 2024. He is currently residing in a subsidized single-occupancy apartment at Emmaus Place through TRHP with Good Shepherd. Mr. Msimanga maintains an exceptionally clean and tidy apartment. He has also maintained full-time employment with GFL where he works as a Forklift Operator. Furthermore, Mr. Msimanga welcomed a son with Ms. Sunita Gasi on November 8, 2024. Mr. Msimanga is very involved in the care of the child, who is under the guardianship of Ms. Gasi’s mother. They are supported by Hamilton Child and Family Supports (formerly known as the Children’s Aid Society of Hamilton, CAS).
As highlighted, there have been many recent changes in Mr. Msimanga’s life, which he has managed relatively well. His mental status has remained stable throughout the reporting period and he has been adherent with his medications. However, Mr. Msimanga remains vulnerable to influences that may de-stabilize his mental status. On March 10, 2025, his UDS returned positive for cocaine. Mr. Msimanga stated that he consumed a “homemade” batch of kombucha from an unknown individual. Accordingly, the team will continue to work with Mr. Msimanga on improving his judgement with respect to managing potentially de-stabilizing situations in the community. Furthermore, while Mr. Msimanga’s insight into the nature and quality of his illness has continued to improve over the last reporting year, the concern for impression management remains an ongoing issue. As noted in Dr. Losier’s risk assessment:
Although he has demonstrated a reasonable adjustment, his coping skills long term have yet to be fully realized. Mr. Msimanga’s attitude, albeit confident, appeared overly positive and steeped in positive impression management.
A number of significant life events have occurred in a very short period of time. Mr. Msimanga’s ability to cope effectively over the long term remains undetermined, he maybe downplaying the full impact of these various life changing events (e.g. child, increasing employment responsibility, navigating expectations from his partner and her family, etc.) on his livelihood not fully recognizing the full impact of unchecked frustrations on his livelihood (i.e. continued rehabilitation) and that of others around him.”
Despite the presence of these risk factors, the treatment team was of the opinion that Mr. Msimanga’s risk of harm to the public can be safely managed under a Conditional Discharge. This is due to Mr. Msimanga’s strong internal motivation to remain well and continue his progress. The Hospital Report stated that Mr. Msimanga is very focused on being a parent and maintaining his employment.
The Hospital Report also stated that Mr. Msimanga remains a significant threat to the safety of the public. He continues to require the structure, supervision, and support that the Forensic Psychiatry Program offers him. In the absence of the current forensic oversight, Mr. Msimanga is at risk of nonadherence with his medication, relapse into substance use, and a decompensation of his mental health. The resultant relapse into psychosis would predispose him to violence toward members of the public.
Dr. Lee testified that she had been involved in Mr. Msimanga’s care since mid-March 2025, and had most recently met with him a few days before the hearing. She reiterated the significant events that had occurred in Mr. Msimanga’s life over the past 18 months, and stated that he had been relatively stable. He was compliant with medication (which is a long-acting injectable antipsychotic medication taken every 28 days), had not shown any aggression, and did not have breakthrough symptoms. He was meeting with the Forensic Outpatient Team between six and eight times per month, and also met with staff at Emmaus Place once per week. Mr. Msimanga maintained a rigorous work schedule, working from 8 a.m. to 4 p.m. Tuesday to Saturday, as well as some overtime.
Dr. Lee stated that the team was of the opinion that Mr. Msimanga is ready for a Conditional Discharge. She pointed to Mr. Msimanga’s full-time job, very strong family support, and noted that he is collaborative and cooperative with the treatment team. She also stated that it was the team’s opinion that if he required readmission to hospital, it was likely that Mr. Msimanga would agree to a voluntary admission based on the strong therapeutic rapport that he has with the team. The recommended Young clause, which requires Mr. Msimanga to immediately attend at the hospital for psychiatric assessment if requested, would also assist with this.
Dr. Lee was asked about life stressors around being a new parent and his potentially unsettled domestic situation. She responded that Mr. Msimanga has managed well, but he does require the support of the forensic outpatient team to navigate some of the issues he has been facing. He has been receptive to increased supports. Dr. Lee also reiterated that the family is supported by CAS, and Mr. Msimanga’s case manager is in touch with the CAS worker.
Dr. Lee testified that Mr. Msimanga’s insight remains underdeveloped, and this is an area that they will continue to work on with him. She explained that while Mr. Msimanga is able to state his diagnosis of schizophrenia, he is not able to identify symptoms that he was experiencing at the time of the index offences. He also believes that the voices that he heard were only a result of substance use, and that if he stopped taking medication they would not come back unless he used substances again. Dr. Lee also stated that Mr. Msimanga is vulnerable to inadvertent exposure to substances (as evidenced by the kombucha incident) and they are working on his judgment in the context of exposure to stress and substances.
In response to questions from Ms. Bromberg, Dr. Lee agreed that Mr. Msimanga is very involved with his baby. She stated that he visits the baby every day, and stays over at his girlfriend’s mother’s house on weekends to be with the baby. He also supports the baby financially. Dr. Lee also agreed that Mr. Msimanga has excellent supports in his brother and his girlfriend’s mother.
Dr. Lee was asked about the proposed residence condition which required Mr. Msimanga to “reside at any accommodation supported by the Good Shepherd of Hamilton.” Dr. Lee stated that although Mr. Msimanga had raised the possibility of living with his girlfriend and son in an independent apartment, the team encouraged Mr. Msimanga to stay in his own supported accommodation this year in order to mitigate the stressors that come with an independent apartment. Dr. Lee stated that Mr. Msimanga has since expressed that he is grateful for his current living situation as it provides him with a place to go when his domestic situation is stressful. Dr. Lee also stated that there are different types of housing within the Good Shepherd program that could be available to Mr. Msimanga.
Dr. Lee was asked about the comments in the Hospital Report that Mr. Msimanga was looking forward to international travel and visiting his grandparents in Africa. Dr. Lee agreed that a travel condition requiring that Mr. Msimanga obtain an approved itinerary before he travelled was appropriate.
Dr. Lee was also asked to comment on the proposed reporting requirement of no less than once per month, given that Mr. Msimanga was currently reporting between six and eight times per month. Dr. Lee responded that a decrease in reporting would be a slow transition over time.
Dr. Lee did not think that a consent to treatment clause was necessary in Mr. Msimanga’s case, given that there had been no issues with medication compliance. Dr. Lee also stated that Mr. Msimanga is “too scared” to stop taking the medication.
Analysis and Conclusion:
The panel found that the evidence contained in the Hospital Report, and presented by Dr. Lee, supported a finding that Mr. Msimanga continues to represent a significant threat to the safety of the public. While Mr. Msimanga has made considerable progress in his recovery, he remains at risk of nonadherence with his medication, relapse into substance use, and decompensation of his mental state. The index offence was very serious and caused life-changing injuries to the victim. Mr. Msimanga was discharged to the community less than a year ago, and is also a new father. While these are positive and noteworthy steps, they can also be stressful, especially in the context of full-time work, and a somewhat unsettled relationship with his girlfriend. Further, Mr. Msimanga has historically used substances to deal with stress, and he recently tested positive for cocaine (although it may have been an inadvertent ingestion). These are early days in his abstinence, and this is a significant risk factor for Mr. Msimanga. Finally, Mr. Msimanga’s insight is not yet fully developed. In this context, Mr. Msimanga remains at risk of deterioration with respect to his mental health, which would likely result in serious harm to a member of the public.
The panel accepted the joint submission that the necessary and appropriate Disposition is a Conditional Discharge with the conditions set out below. The panel accepted the evidence that Mr. Msimanga has demonstrated a commitment to his recovery and is ready to progress to the next step in the forensic system. He has transitioned to the community well, as was evidenced by the testimony of Dr. Lee and the Good Shepherd HOMES Program Report (Exhibit 2), and has managed full-time work and being a new father. The conditions recommended by the parties require Mr. Msimanga to continue residing in supported housing, abstain from substance use, submit samples of his breath and urine for testing, refrain from possessing any weapons, and refrain from contact with the victim of the index offence. These conditions are similar to the requirements under the previous Detention Order, and serve to protect the public. Dr. Lee was confident that Mr. Msimanga would return to hospital for a voluntary admission if asked, and the Young clause requires him to attend for a psychiatric assessment. Finally, the panel included a travel condition to ensure that if Mr. Msimanga wishes to travel, he will first have to obtain an approved itinerary from the person in charge of SJHCH.
Mr. Msimanga is to be commended for his commitment to his recovery and progress so far, and encourages him to continue on this positive trajectory.
Mr. Msimanga is discharged subject to the following conditions:
(a) reside at any accommodation supported by the Good Shepherd of Hamilton;
(b) report to the person in charge of St. Joseph’s Healthcare Hamilton, West 5th Campus, or his or her designate, not less than once per month;
(c) abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant;
(d) submit samples of their urine and/or breath to the person in charge of St. Joseph’s Healthcare Hamilton, West 5th Campus, or his or her designate for the purpose of analyzing whether the accused has ingested alcohol, drugs or any other intoxicant;
(e) refrain from having in their possession any firearm, ammunition or other offensive weapon, or being in the company of any person possessing a firearm other than a peace officer;
(f) refrain from contact or communication, direct or indirect, with Matthew Harding;
(g) advise the person in charge of St. Joseph’s Healthcare Hamilton, West 5th Campus, or his or her designate, in advance, of any absence from their residence of 24 hours or more;
(h) participate in a program of rehabilitation created for him by the person in charge of St. Joseph’s Healthcare Hamilton, West 5th Campus, or his or her designate;
(i) upon notice by the person in charge of St. Joseph’s Healthcare Hamilton, West 5th Campus, will immediately submit to attendance at the hospital for psychiatric assessment;
(j) not to travel outside of Ontario without first obtaining an approved itinerary by the person in charge of St. Joseph’s Healthcare Hamilton, West 5th Campus, or his or her designate;
(k) upon notice, attend before the Ontario Review Board as required; and
(l) keep the peace and be of good behavior.
DATED this 4th day of July 2025, at the City of Toronto, in the Toronto Region.
Suzanne Clapp Alternate Chair
Office of the Registrar Ontario Review Board
Footnotes
- This is a vernacular term for a condition that is based upon guidance from Re Young, 2011 ONCA 432.