Ontario Review Board
Re: Robert M. Scott
ORB File No: 8319
Hearing held on: Tuesday, June 24, 2025
Place of Hearing: Providence Care Hospital, Kingston
Pursuant to: Sections 672.48(1) and 672.81(2) of the Criminal Code
Before: Alternate Chairperson: Mr. J. Hanbidge Members: Dr. S. Hucker Dr. W. Loza Ms. K. Weisbaum Ms. K. Brisson
Parties Appearing: Accused: Robert M. Scott Counsel: Mr. M. Rodé Person in charge of hospital: Counsel: Ms. T. Tom Representative: Dr. M. Chan Attorney-General of Ontario: Counsel: Ms. J. Ferguson
REASONS FOR DISPOSITION
(Dated July 10, 2025)
Introduction
[1]. On June 8, 2023, Mr. Robert Scott was found unfit to stand trial on account of mental disorder on three charges of fail to comply with probation order and Mischief under $5,000.00 contrary to the Criminal Code. Mr. Scott is currently subject to a Disposition of the Ontario Review Board dated October 23^rd^, 2024, which detains him at the secure forensic unit of Providence Care Hospital, Kingston, Ontario, with privileges up to and including to enter the community of Kingston within a 20-kilometre radius of Providence Care Hospital, indirectly supervised.
[2]. On June 24^th^, 2025, the Ontario Review Board convened a hearing at Providence Care Hospital (the “hospital”) pursuant to s. 672.48(1) and s. 672.81(1) of the Criminal Code to review Mr. Scott’s unfitness to stand trial and, if found unfit, to determine the necessary and appropriate disposition that was also the least restrictive and least onerous, taking into account the factors set out in s. 672.54.
[3]. Mr. Scott was present at his hearing and represented by his counsel, Mr. Michael Rodé.
[4]. Exhibits entered included a progress note by Dr. Michael Chan dated April 24, 2025, ORB Response Correspondence dated May 12, 2025, and a hospital report dated May 29, 2025.
[5]. For the reasons set out below, the Board found that Mr. Scott is fit to stand trial and, as such, his case will be referred back to the court with his current Detention Order with certain conditions and privileges remaining in effect in the interim.
Positions of the Parties
[6]. Ms. Tina Tom, counsel for the hospital, stated the position that Mr. Scott is now fit to stand trial so he would return to court, as signaled by the summary in Dr Chan’s progress note of April 24, 2025.
[7]. Counsel for the Attorney General, Ms. Jennifer Ferguson, tentatively joined the hospital’s position.
[8]. Counsel for Mr. Scott, Mr. Rodé, tentatively joined the hospital’s position.
Index Offences
[9]. The circumstances surrounding the finding of fitness are described in the hospital report as follow:
“On March 06, 2023, in the City of Kingston Ontario, at approximately 7:25am the accused, Robert Scott was sleeping in the front dory vestibule of 322 Brock St. The accused was asked to leave the building, which then angered the accused, and he started speaking incoherently to the witness.
As the accused was leaving the front door, the accused, kicked the glass door, causing it to shatter. The accused then left eastbound onto Brock St.
Police attended the area, and proceeded westbound on Brock St. from Montreal St. The accused was observed at 230 Brock St., and could be identified as Robert Scott, from many police involved incidents.
The accused was stopped, and arrested for mischief, not exceeding $5000.00, and breach of probation x3. The accused cuffs were secured to the rear, and placed in the back of the cruiser #112 at 7:26 am. The accused was read his rights to counsel and caution, the accused understood, and denied wanting to speak to his lawyer.
The accused was transported back to Kingston Police Headquarters at 7:28 am and arrived at 7:30 am.”
Background
[10]. The hospital report dated May 29^th^, 2025, (filed as Exhibit 1), sets out Mr. Scott’s background in detail and has been considered by the Board. Briefly, Mr. Scott is presently 30 years of age. He was placed in foster care at the age of six due to neglect and physical abuse. He remained in care until he turned 18 at which point he reconnected with his mother and went to live with her. After about two years, he was asked to leave his mother’s home as he was threatening violence against both his mother and her pet.
[11]. After leaving his mother’s home, Mr. Scott remained homeless and transient in the city of Kingston. Mr. Scott has no social or familial supports.
Current Diagnoses
[12]. Mr. Scott’s current diagnoses are:
- Chronic schizophrenia disorganized type
- Substance Use (stimulant and cannabis)
- Attention Deficit Hyperactivity Disorder (history)
- Antisocial Personality Disorder
Evidence at the Hearing
[13]. The hospital’s evidence was presented through the hospital report, as well as the oral testimony of Dr. Michael Chan, Mr. Scott’s treating psychiatrist. He was the author of the hospital report and adopted its contents.
[14]. In response to questions from Ms. Tom, Dr. Chan testified that he has been Mr. Scott’s treating psychiatrist since September of 2023. It was his opinion that Mr. Scott is now fit to stand trial, as documented in his progress report that is part of the hospital report.
[15]. In particular, Dr. Chan referenced the hospital report and specifically the report by Dr. Rose at pages 11 to 15. Dr. Rose was until recently the unit psychologist. She had worked with Mr. Scott in the winter and spring of 2025. She developed and utilized a variety of aids, including a miniature “Lego” model of an Ontario court room and figures. The aids supported Mr. Scott in successfully learning concepts. Dr. Rose had also provided feedback to Dr. Chan throughout her contact with Mr. Scott about Mr. Scott’s progress.
[16]. Dr. Chan stated that he believes Mr. Scott’s fitness to stand trial has been restored and that Mr. Scott will be able to participate in his defense. With some occasional “mild prompting”, Mr. Scott is able to display understanding of his charges. For example, when asked by Dr. Chan, “What goes on in a court room?”, Mr. Scott has been able to describe the roles of the Crown, judge and defence counsel, the meaning of the pleas, what happens when a witness comes to court and that the Crown must prove the charges.
[17]. Dr. Chan stated that in the past, Mr. Scott was very thought disordered, but with substantial antipsychotic treatment, he improved and is now friendly and able to interact well with others. Dr. Chan did not anticipate that Mr. Scott will have trouble interacting with his counsel.
[18]. Mr. Scott has experienced metabolic issues with Olanzapine. He also receives an injectable medication. Dr. Chan stated that he is not optimistic that Mr. Scott will continue with his medication after release, however, be believes that Mr. Scott will continue to accept psychosocial supports once discharged, e.g., housing in particular, as that is his biggest need, and other sorts of supports, such as with groceries. Mr. Scott has also been referred to a non-forensic program called “At Risk”. His housing upon discharge would be temporary, as permanent housing is a significant challenge in the community.
[19]. Counsel for the Attorney General, Ms. Ferguson, asked Dr. Chan to hypothesize on the possible outcomes of a trial, should Mr. Scott be found fit by the Board. In particular, she asked questions related to potential concerns about public safety should Mr. Scott return to substances, what might happen after his trial if Mr. Scott’s mental state destabilized if he became medication noncompliant and if Dr. Chan had talked to Mr. Scott about “what a shame that would be” if his stabilization was lost and that “charges the next time, which are almost inevitable, could be much more serious next time.” Dr. Chan acknowledged that these issues were concerning.
[20]. In response to a question from the panel, Dr. Chan stated that while some of Mr. Scott’s knowledge of the court system was the result of memory work, Dr. Chan believed that Mr. Scott also has an understanding of the system.
[21]. No further evidence was presented.
Submissions of the Parties
[22]. Ms. Tom submitted that the issue before the Board was whether Mr. Scott was fit to stand trial and that, if he is found to be fit by the panel, the matter would return to court. Based on the testimony of Dr. Chan and the content of Dr. Rose’s report at pages 11 to 15 of the hospital report, Mr. Scott is fit to stand trial and the test for fitness in Bharwani has been met. The evidence, and particularly the hospital report, showed that Mr. Scott would be able to meaningfully participate in his defence. She noted that Dr. Rose had been cautious in her report with respect to Mr. Scott’s “free flowing conversation” with her and his related description of how he would instruct counsel. Ms. Tom stated that what was important about Dr. Rose’s account was that it demonstrated that Mr. Scott had participated in an engaging conversation with Dr. Rose that reflected his ability to meaningfully participate in his own defence, understand the charges against him and properly instruct his counsel.
[23]. Counsel for the Attorney General, Ms. Ferguson, had nothing further to add with respect to the issues before the panel and maintained her earlier position, joining with the hospital.
[24]. Mr. Rodé noted that he had a number of conversations with Mr. Scott prior to the hearing. He agreed with the hospital’s position and expressed his and Mr. Scott’s appreciation for the work done with Dr. Rose. He stated that should the Board deem Mr. Scott fit and his case go back to court, Mr. Rodé had a docketed date of July 14, 2025.
Analysis
[25]. The definition of “unfit to stand trial” is found at s. 2 of the Criminal Code:
“’unfit to stand trial’ means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to:
(a) understand the nature or object of the proceedings;
(b) understand the possible consequences of the proceedings; or
(c) communicate with counsel.”
[26]. In R. v. Bharwani, 2023 ONCA 203, the Ontario Court of Appeal stated that the test contained in the definition of “unfit to stand trial” is to ensure that the accused can be meaningfully present and meaningfully participate in their trial. Considering the s.2 criteria, the accused must also have a reality-based understanding of the nature, object and possible consequences of the proceedings, as well as the ability to make decisions (albeit not to the extent of being able to engage in analytic thinking, or act in their own best interests.)
Ability to understand the nature or object of the proceedings
[27]. In keeping with Bharwani, the evidence established that Mr. Scott is now fit to stand trial. The Board accepts the assessment of fitness contained in the hospital report and the testimony of Dr. Chan. In particular, the hands-on pragmatic teaching methods used by Dr. Rose (described at pages 11 to 15 of the hospital report) facilitated Mr. Scott’s success in learning concepts, developing understanding of the court system and what it will be like when he returns to court.
[28]. As described in the hospital report, as part of their 13 sessions, Dr. Rose developed and utilized a variety of aids to support Mr. Scott as part of his “Court Education” and towards his success in learning essential concepts. Dr. Rose had also provided feedback to Dr. Chan throughout her contact with Mr. Scott about Mr. Scott’s progress.
[29]. It is worth noting Dr. Rose’s extensive list of activities and learning aids used with Mr. Scott as listed in the hospital report, as follows:
- Discussion of court concept without aids;
- Review of a model of a courtroom make out of Lego;
- A matching game about the officers of the court and their roles;
- A “choose your own adventure” PowerPoint presentation about Harry Potter’s arrest and trajectory through the criminal justice system;
- A matching game about proper courtroom behaviour;
- A vignette about someone committing a crime; Mr. Scott had to role play explaining court to the person;
- Guided imagery of a courtroom;
- A role-play where Mr. Scott was asked to explain the alleged offences to a lawyer; and
- Discussion of court concepts using a printed picture of the Ontario Court of Justice.
[30]. Mr. Scott gained his knowledge through hands-on court education using the methods and tools listed above. Dr. Rose’s pragmatic reality-based approach supported Mr. Scott’s genuine understanding rather than simple memorization, something that Dr. Chan also emphasized in his testimony.
[31]. Mr. Scott was also assessed using the Competence Assessment for Standing Trial for Defendants with Mental Retardation (the “CAST-MR”) on April 20, 2025. This tool was “developed for use by forensic evaluators to assist in determining whether an adult defendant with an intellectual disability is competent to stand trial.” CAST-MR does assess an individual’s knowledge of the criminal justice process in three sections: i) the meaning of a trial (“Basic Legal Concepts”); ii) the defendant’s understanding of the “client-attorney” relationship (“Skills to Assist Defense”); and iii) the defendant’s ability to discuss the facts concerning the alleged offences in a coherent manner and to understand the relationship between the alleged facts in the case and then subsequent arrest (“Understanding Case Events”). Specifically, at page 12 of the hospital report, Dr. Rose notes:
Mr. Scott's total score on the CAST-MR was 40 out of (80% correct). In the development sample, individuals with intellectual disabilities who were assessed as competent to stand trial had a mean score of 37.2 (SD=10.2). When compared to this normative group, Mr. Scott’s would fall in the Average range (z=.35). Individuals with intellectual disabilities who were assessed not competent to stand trial had a mean score of 26.3 (SD=10.2). When compared to this normative group, Mr. Scott’s would fall in the Superior range (Z=1.34).
[32]. Adding to the overall picture of Mr. Scott’s ability to understand, as Dr. Rose noted at page 13 of the hospital report:
“Mr. Scott's account of the circumstances leading to his alleged offences should be interpreted within the context of the charges themselves, which are relatively minor. Mr. Scott was able to list all of his charges, and link specific behaviors to each charge. He did not recall the specific date and time of his offence. For example, he believed it took place in the evening, when it took place in the morning. He could not recall how his interaction and conversation with the police unfolded. Despite this missing information, Mr. Scott could provide a coherent and organized summary of the essential elements of the alleged offences. Consistent with his past sessions, he also cited his legal strategy and explained his choice. His explanation of his choice was based in reality, and demonstrated an understanding of the court process”. (Emphasis added.)
[33]. Dr. Chan stated that, granted Mr. Scott requires some prompting, Mr. Scott is now able to answer the question, “What goes on in a court room?”, such that he can describe: the roles of the Crown, the judge and defence counsel; the meaning of pleas; what happens when a witness comes to court; and what it means that the Crown has to prove the charges. In addition, Dr. Chan was confident that Mr. Scott’s understanding is authentic and not simply the result of repetitive exercises.
Ability to understand the possible consequences of the proceedings
[34]. The panel found that Mr. Scott understands the possible consequences of the proceedings. To this point, Dr. Rose’s account of Mr. Scott’s “Response to Intervention”, that being the outcomes of his “Court Education” can be emphasized again:
“Consistent with past sessions, he also cited his legal strategy and explained his choice.”
The report continues:
“Mr. Scott's knowledge of the court process has improved over the course of his service. He has demonstrated the capacity to learn and retain information over time. This is evidenced by his ability to provide correct information regarding officers of the court, articulate the meaning of plea options, identify when a trial would (and would not occur), and provide examples of possible outcomes. Additionally, he is able to list his charges and provide an accurate and realistic perception of the level of seriousness of his charges. He is able to provide an account of the offences, including tying specific alleged behaviors to the charges.” (Emphasis added.)
[35]. Dr. Rose’s account shows that Mr. Scott not only understood the court process, including when a trial would or would not occur, but could also apply his understanding to “possible outcomes”, that is, the consequences of court proceedings. His ability to explain his choice of strategy indicates understanding of how his choice may affect the outcome of his trial. His realistic perception of the seriousness of his charges reflects insight about possible consequences. His ability to tie his alleged behaviors to the charges demonstrates awareness that his actions can lead to legal consequences.
[36]. The panel found that Mr. Scott is able to communicate with counsel and can recount to counsel the necessary facts relating to the offence in such a way that counsel can then properly present a defence. According to Dr. Rose’s report, Mr. Scott’s residual psychotic symptoms are still present, with thought disorder being the most prominent. However, these symptoms do not appear severe enough to prevent him from communicating with his counsel. As Dr. Rose noted in her report at page 13:
“Redirection back to the topic at hand and repetition of questions allowed Mr. Scott to demonstrate that he does have the knowledge articulated above. Breaks in conversation, asking questions in a more closed ended manner, and providing cues for recall were of significant benefit.”
Ability to make decisions
[37]. The panel found that Mr. Scott’s ability to make decisions is sufficient for the purpose of fitness to stand trial. During his time at PCH, Mr. Scott’s psychosis and related behaviours have stabilized because of his treatment regime of antipsychotic medication and activities. This has provided a foundation for the educational work he did with Dr. Rose, which, as described and analyzed above, has facilitated development of his abilities, including his decision making skills. According to the hospital report, while he is incapable with respect to consent to treatment, he is capable of managing property. Of note, Mr. Scott is vulnerable with respect to maintaining his abilities, including his ability to make decisions, because of what Dr. Chan described as Mr. Scott’s “substance attractions”. If he uses substances, he will likely destabilize. However, at the time of the hearing, he was stable.
Conclusion
[38]. Taking into account the definition of unfit to stand trial in the Criminal Code, the test in Bharwani and all of the evidence, the Board found merit in the joint submission of the parties and found that Mr. Scott is now fit to stand trial. Overall, the evidence showed that Mr. Scott is able to be meaningfully present and meaningfully participate in his trial.
[39]. Mr. Scott’s conduct during the hearing was appropriate to the context. He listened carefully to the Chair’s opening and closing remarks, seemed open to his lawyer’s suggestions about his participation, and was patient and polite the whole time.
[40]. The Board congratulates Mr. Scott for everything he has achieved this past year. The Board also recognizes how hard he has tried when working with his treatment team and how well he has done in learning more about the court system.
[41]. The Board notes that through the efforts of his counsel, Mr. Rodé, Mr. Scott has a docketed court date of July 14, 2025.
[42]. The Detention Order for Mr. Scott currently in place dated October 23, 2024, remains in effect.
DATED this 10th day of July 2025, at the City of Toronto, in the Toronto Region.
Ms. K. Weisbaum Legal Member
Office of the Registrar
Ontario Review Board