Re Robert G. Abernethy, 2025 CanLII 72916

Ontario Review Board

Re: Robert G. Abernethy

ORB File No: 6714

Hearing held on: Tuesday, June 10, 2025

Place of hearing: Centre for Addiction and Mental Health 1001 Queen Street West, Toronto

Pursuant to: Section 672.81(1) of the Criminal Code

Before: Alternate Chairperson: Ms. L. Banks Members: Dr. R. W. Hill Dr. L. O. Lightfoot Mr. J. Goldenberg Mr. J. Cyr

Parties Appearing: Accused: Robert G. Abernethy Counsel: Ms. A. Szigeti

The person in charge of hospital: Counsel: Ms. S. Rosales-Zelaya

Attorney General of Ontario: Counsel: Ms. V. Culp

REASONS FOR DISPOSITION

(Dated July 22, 2025)

Introduction:

1. On March 12, 2015, Robert Abernethy was found not criminally responsible (“NCR”) on two counts of second-degree murder, contrary to the Criminal Code of Canada. He is currently subject to a Disposition of the Ontario Review Board (the Board) dated June 7, 2024 detaining him in the Forensic Service of the Centre for Addiction and Mental Health, Toronto (“CAMH” or the “hospital”), with discretionary privileges up to and including the ability to live in the community in accommodation approved by the person in charge of the hospital.

2. On June 10, 2025, the ORB convened a hearing at CAMH for the annual review of Mr. Abernethy’s Disposition pursuant to s.672.81(1) of the Criminal Code. Mr. Abernethy attended his hearing and was represented by counsel, Ms. A. Szigeti.

3. The issues to be determined at this hearing are whether Mr. Abernethy 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.

4. For the reasons that follow, the Board finds that Mr. Abernethy continues to represent a significant threat to the safety of the public and that the necessary and appropriate Disposition is his transfer to St. Joseph’s Healthcare Hamilton (“St. Joseph’s”) on terms set forth at the conclusion of these Reasons with residual authority to detain Mr. Chang at CAMH within the Forensic Service on the terms of his existing Disposition pending his transfer to St. Joseph’s.

Index Offences:

5. The circumstances of the index offences are extracted from last year’s ORB Reasons, as follows:

“In August 2011, Mr. Abernethy was working at a construction site in the Township of King, Ontario. He beat two workmates with a crowbar. Both males suffered from head trauma. One had substantial trauma to the back of his head, while the other male had trauma to the top of his forehead. Both men died.

Mr. Abernethy was arrested at the scene. He appeared to be suffering from a mental condition, as his emotions drastically swung from one extreme to the other and he made random statements, such as, 'We're all going to die; the volcano's coming. We need to live in peace and Mother Nature's watching us". Mr. Abernethy informed officers that both victims were employees of the business. He was tearful when he spoke of one of victims, but he became aggressive and he yelled when he spoke of the other.”

Positions of the Parties:

6. At the outset of the proceedings, all parties were asked for their positions on the issues to be determined by the Board: whether Mr. Abernethy continues to represent a significant threat to the safety of the public; and if so, the necessary and appropriate Disposition.

7. Counsel for the hospital recommended that the necessary and appropriate Disposition is a continuation of Mr. Abernethy’ existing Detention Order; however, counsel indicated the hospital will not oppose Mr. Abernethy’s transfer to St. Joseph’s Healthcare Hamilton (“St. Joseph’s”) on the terms proposed by St. Joseph’s as set forth in that hospital’s Rule 13 Response, which was included as an Exhibit at this hearing.

8. Counsel on behalf of the Ministry of the Attorney General concurred that a Detention Order remains necessary and she was in support of the request for a transfer to St. Joseph’s on the terms proposed, as set forth at the conclusion of these Reasons.

9. Ms. Szigeti indicated that her client was requesting a transfer to St. Joseph’s on a Detention Order on the terms set forth at the conclusion of these Reasons. Pending his transfer, counsel agreed that his existing detention at CAMH remained appropriate. Counsel advised that significant threat was not in issue for this hearing.

10. In closing submissions all parties agreed that the no-contact provision contained in paragraph 4(d) of Mr. Abernethy’s existing Disposition should be included in the terms of his Detention Order at St. Joseph’s.

11. In all other respects, all parties maintained their initial recommendation to the Board in closing submissions.

Background Information:

12. The Hospital Report, dated May 28, 2025 (the “Hospital Report”) contains a significant amount of information pertaining to Mr. Abernethy’s background and psychiatric history and need not be reviewed in detail. In addition, the last year’s ORB Reasons summarize Mr. Abernethy’s history and have been relied on heavily herein. Briefly stated, Mr. Abernethy is a 61-year-old man who was born in Scarborough, Ontario. He did not complete high school and worked doing general labour. He has had a number of intimate relationships, at least one of which was reported to have involved violence on Mr. Abernethy’s part. At the time of the index offences, he was residing with his uncle.

13. Mr. Abernethy has described himself as an alcoholic. He started drinking at six and continued up until the time of the index offences. He also reported smoking cannabis on a weekly basis at the time of the index offences.

Criminal History:

14. Mr. Abernethy’s criminal record begins when he was 17 and includes convictions for possession of narcotics, impaired driving, criminal harassment, assault and failing to comply with court orders.

Psychiatric History:

15. Mr. Abernethy has a long psychiatric history. He has reported mood swings, and suicidality, at times in the context of alcohol abuse. Over the years, he has been treated with various medications, including risperidone for anxiety, sertraline (Zoloft) for depression and also treated with olanzapine for about a year, although he stopped taking that as he felt that he was gaining too much weight.

16. In January 2008, Mr. Abernethy was admitted to hospital in British Columbia following a car accident. At the time, he talked about Judgment Day and about being sent by God to battle Satan. He had a number of bizarre, paranoid and religious delusions, and delusions of reference. His differential diagnosis prior to discharge included Delusional Disorder, Not Otherwise Specified (with a question of Schizophrenia or Bipolar Disorder with psychotic features), as well as Substance Abuse Disorders.

17. Following the NCR verdict, Mr. Abernethy was admitted to Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”) in March 2015. Mr. Abernethy displayed no overt psychotic or mood disorder symptoms. He continued to display poor insight into his mental illness, including his Bipolar Disorder and alcohol dependence. Mr. Abernethy did not believe he had a mental illness. He noted he "had something" before and during his index offences "but nothing currently". He did not endorse any hallucinations or delusions. He displayed some aggressive and defiant behaviour when it came to unit guidelines. He presented as smug, entitled, grandiose and sarcastic in his interactions with hospital staff.

18. By 2017, Mr. Abernethy’s behaviour was more intimidating and threatening towards staff and peers. This occurred on a daily basis. He made it clear he would "stir shit up". Attempts to engage Mr. Abernethy in discussions regarding his behaviours led to anger, shouting over staff, impulsiveness and threatening behaviours. The Hospital Report includes the following description of Mr. Abernethy’s behaviour at the time:

“Ongoing conference meetings with Mr. Abernethy became non- productive. He presented as hostile in these meetings and tried to bully and intimidate the Team with threats of violence, reminders of his past violent behaviours, swearing and derogatory remarks when he did not get his way. Mr. Abernethy was unmotivated and unwilling to compromise or work with the Treatment Team. He would not attend therapeutic programs to help in his recovery unless it was to attend a computer group, where he could check his email, Facebook page or go online to Amazon and eBay sites to fill up his cart so his father could place orders for him. Mr. Abernethy did not follow a plan of care to help him move forward in the system or that would move him closer to minimum or the community in the future.”

19. A major concern and source of significant conflict was Mr. Abernethy’s practice of buying, selling and renting items on the unit. He would take advantage of more vulnerable co-patients and charge exorbitant amounts for items such as cans of pop. He refused to stop this practice, notwithstanding multiple requests from the treatment team. Mr. Abernethy's disruptive, confrontational and ultimately threatening behaviours put other patients and staff at increasing risk of harm.

20. The treatment team attempted a number of practical interventions in order to limit Mr. Abernethy's ability to bully others, but these had limited success. Further, the treatment team attempted to engage him in rehabilitation strategies in order to address these issues and his risk to others, but he also refused these approaches.

21. Over the course of the following two years, Mr. Abernethy continued in his disregard for rules as they applied to him. He was deceitful, manipulative and intimidating towards staff. He refused to engage in any structured programming or vocational initiatives. He continued to use his room and computer to purchase and store items to be sold on the unit. On November 26, 2019, he received a package containing two pairs of wire cutters. These were placed in storage.

22. Mr. Abernethy became increasingly verbally and environmentally aggressive when confronted by staff. He caused serious psychological harm to co-patients and staff as they did not feel safe on the unit. Of note, the unit manager was only to meet with Mr. Abernethy with two security guards present. Mr. Abernethy ultimately was transferred to the most secure forensic unit at Ontario Shores. At his Restriction of Liberty hearing, he requested a transfer to CAMH, the Brockville Mental Health Centre, or St. Joseph’s, a move Ontario Shores supported.

23. On September 29, 2020, Mr. Abernethy was transferred to Waypoint’s High Secure Provincial Forensic Program (“Waypoint”). In response, Mr. Abernethy stated he would not take antipsychotic medications and refused all psychiatric treatment. As in the past, he constantly challenged staff on the enforcement of hospital rules. He was unwilling to accept any responsibility for his situation.

24. After approximately a year at Waypoint, staff noted a change in Mr. Abernethy’s attitude and he presented with less frequent episodes of confrontational behaviour. He was transferred to CAMH on June 23, 2023.

25. Following his transfer from Waypoint, he was admitted to a secure forensic unit at CAMH and he had difficulty following hospital rules and staff direction. He was defiant and verbally abusive with staff. On a number of occasions, he said he would be seeking a transfer to another hospital.

26. By March 2024, Mr. Abernethy had made progress and was attending programming and continued to use passes successfully. As a result, he was transferred to a general forensic unit on April 22, 2024, under the care of Dr. Swayze.

Current Diagnoses:

27. Mr. Abernethy’s current diagnoses are:

Antisocial Personality Disorder, Narcissistic Personality traits, Psychopathic traits, and Alcohol Use Disorder, in remission in a controlled environment.

Evidence at the Hearing:

28. Dr. M. Kravtsenyuk testified at the hearing to supplement the documentary evidence. She has been Mr. Abernethy’s treating psychiatrist since October 2, 2024. The doctor endorsed the contents of the Hospital Report and indicated there were no significant updates.

29. Dr. Kravtsenyuk stated that Mr. Abernethy is assessed as capable to consent to his psychiatric treatment but he has not received any anti-psychotic medication for a number of years and there have been no symptoms of psychosis noted. The doctor stated that his challenging behaviours are driven by his personality issues rather than issues related to a major mental illness. Mr. Abernethy’s behavioural presentation has remained consistent with prior years.

30. Mr. Abernethy’s mental state remains largely stable over the year. He has consistently denied experiencing any psychotic symptoms, and he states that he does not suffer from any mental illness. There was no evidence of hallucinations, delusions, or thought disorder, although he sometimes expressed loose associations. Overall, his presentation was free of psychotic features.

31. Over the year in review, Mr. Abernethy has experienced a gradual physical decline. He currently presents as a medically complex individual with multiple significant chronic conditions, including cirrhosis, recurrent ventral hernias, a history of colon cancer, chronic pulmonary impairment, and a recent diagnosis of atrial arrhythmia.

32. At the beginning the reporting period, Mr. Abernethy remained on a general forensic unit under the care of Dr Swayze. Over time, Mr. Abernethy reportedly became increasingly hostile, aggressive, profane, rude, threatening, and dismissive.

33. The Hospital Report indicates that, “Mr. Abernathy decline to engage with any of the clinical team members including his psychiatrist and the hospital list. The concerns of the clinical team were clearly repeated and relayed to Mr. Abernathy. Given that bas of the NCR is finding was the presence of a delirium secondary to haptic encephalopathy and his chronic liver dysfunction, it was imperative his physical health be closely monitored, addressed and his mental status similarly followed. He dismissed these concerns. A case conference was convened and the decision was made to have a unit external consultation regarding the “clinical impasse “. Mr. Abernathy self-reported the risk management difficulties the clinical team was experiencing. Following said consultation, the decision was made by Senior Staff to transfer Mr. Abernathy to a higher security level unit. Given the severity of his disengagement from the clinical team and the need for a higher level of monitoring, it was felt that a transfer to a different general unit was not adequate to manage the risk. Mr. Abernathy was initially transferred on September 27, 2024 from the Forensic General Unit D (FGUD, Unit 1-5) to a higher security level on the Structured Observation and Treatment Unit (SOTU, Unit 3-1) under the clinical care of Dr. Nnamdi Ugwunze, pending transfer on October 2, 2024 to the Forensic Secure Unit B (FSUB, Unit 3-3). “

34. Given his complex medical presentation (including, chronic ascites, constipation and symptomatic hernias), he received care from many external specialists and he often attended at Toronto General Hospital (“TGH”), Women’s College Hospital and other specialty clinics for appointments and services.

35. Mr. Abernethy was often non-adherent to scheduled pharmacologic interventions, and treatments. He frequently declined bloodwork, diagnostic imaging and routine vital sign checks and monitoring.

36. On April 17, 2025, Mr. Abernethy was taken to TGH and he underwent an emergency laparotomy with small bowel resection, re-anastomosis, and ventral hernia repair. He remained admitted at TGH until April 28, 2025. During the same hospital stay, Mr. Abernethy was found to have new-onset atrial fibrillation, requiring monitoring and follow-up. Of note, Mr. Abernethy is currently followed by the liver clinic at the University Health Network under the care of Dr. Onofrio.

37. Mr. Abernethy remains mostly wheelchair dependent although he is able to ambulate independently for short distances.

38. Although he is medically stable at the present time, he requires continued attention to ascites management, nutritional support, medication adherence, and surveillance for potential complications related to his hernias and underlying liver disease remains critical to his overall care.

39. In terms of his behavioural presentation over the year in review, the Hospital Report indicates that Mr. Abernethy exhibited “… chronic irritability, impulsivity, verbal aggression, and resistance to redirection. He often externalized blame, demonstrated limited insight, and frequently expressed paranoid ideation, including fixed beliefs that staff were intentionally harming or targeting him. His ability to tolerate frustration was notably poor, with frequent escalation in response to boundary setting or unmet expectations.”

40. There have been numerous incidents of dismissive and verbally aggressive behaviours directed at staff. He uses profanities, racial slurs, and makes rude hand gestures to staff and co-patients and engages in verbal threats of harm and intimidation. Mr. Abernethy has also engaged in urinating in inappropriate places as well as stealing,

41. At times, when elevated, he expressed delusional beliefs that staff or medications were designed to harm or control him.

42. The Hospital Report states that: “These behaviours suggest the presence of maladaptive personality traits, notably narcissistic features, including grandiosity, lack of insight, and externalization of blame. He demonstrated a high degree of interpersonal reactivity and limited emotional regulation. Despite this, he retained the capacity for calm and passively cooperative behavior when his needs were met. This was also more evident on a one-to-one interaction with staff. He was able to demonstrate capacity to interact in a calmer manner after situations were explained to him more thoroughly. He demonstrated limited insight and poor judgment regarding his psychiatric presentation and the impact of his behaviour on others.”

43. Mr. Abernethy remained participative in structured programming and he consistently attended therapeutic neighbourhood programs when physically able. He attended a variety of therapeutic and recreational programming as set forth in the Hospital Report.

44. Mr. Abernethy generally complied with pass expectations. The highest level of passes he achieved over the past reporting year was Level 5. At the present time, he is able to exercise level 4, which allows him to access the community on a staff-escorted basis. He has been appropriate when utilizing his privileges.

45. When asked whether the primary reason for why Mr. Abernethy remains detained on a Secure Forensic Unit, the doctor confirmed that it is not because his safe management necessitates that he be detained at that level of security but rather because of challenges related to compromised therapeutic alliances with staff on General Forensic Units. The doctor stated that she is hopeful that Mr. Abernethy will be able to be transferred back to a General Forensic Unit over the upcoming reporting year. The doctor advised that Mr. Abernethy’s transfer to the Secure Forensic Unit was triggered by his refusals to engage in medical assessments and monitoring and resultant ruptures in therapeutic alliance with various treatment teams within a General Forensic Unit. Once transferred to the Secure Forensic Unit, he has generally been engaging with team members appropriately and has allowed necessary medical assessments to be conducted.

46. The doctor reiterated that Mr. Abernethy also has very specific requests regarding his potential of moving to a General Forensic Unit, particularly that he not be transferred to unit 1-5. He has indicated, however, that he would be receptive to a transfer to other General Forensic Units. Of note, at the present time, there are currently waitlists for patient transfers to the General Forensic Units.

47. With regard to Mr. Abernethy’s request to transfer to St. Joseph’s, Dr. Kravtsenyuk stated that Mr. Abernethy indicated that his daughter may move to Hamilton and that is an incentive for him. Additionally, the doctor noted that Mr. Abernethy has very complex and intensive medical needs which would likely be better addressed at St. Joseph’s given that hospital’s proximity and close ties to a local general medical hospital.

48. In assessing his risk, the doctor noted that Mr. Abernethy scored 30/40 on his most recent PCL-R assessment conducted in 2015. This suggests Mr. Abernethy possesses most traits and behaviours associated with the psychopathy construct.

49. The Hospital Report identifies historical risk factors including:

• a history of violence,
• antisocial behaviour,
• personality disorder,
• substance use,
• major mental disorder,
• violent attitudes, and
• treatment or supervision response.

Clinical risk factors identified included:

• recent problems with instability,
• limited insight,
• violent ideation, and
• treatment/supervision response.

50. No further evidence was called by the parties.

Analysis and Conclusion

51. The Board has carefully considered the Hospital Report and the viva voce evidence of Dr. Kravtsenyuk, we find that Mr. Abernethy continues to represent a significant threat to the safety of the public. The index offences involved extreme violence with the use of a weapon and two fatalities. While in hospital, Mr. Abernethy has had a long history of threatening, bullying and intimidating behaviour. He refuses to accept responsibility for his actions and blames hospital staff for his situation. The Board has no difficulty in coming to the independent conclusion that he continues to represent a significant threat to the safety of the public.

52. Mr. Abernethy’s request for a transfer of his care to St. Joseph’s is necessary and appropriate as the evidence presented indicates that it will allow him to more seamless access to critical medical services necessary to manage his complex medical presentation. We also note that his daughter is planning to move to the Hamilton area.

53. The Board unanimously agrees that the necessary and appropriate Disposition is a transfer of Mr. Abernethy’s care to St. Joseph’s Forensic Psychiatry Program on the following terms:

• to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes;
• hospital and grounds privileges, escorted by staff, accompanied by staff or person approved by the person in charge, or indirectly supervised;
• to enter the community of Southern Ontario, escorted by staff, accompanied by staff or person approved by the person in charge, or indirectly supervised;
• passes for up to 7 days, within the catchment area of St. Joseph's, indirectly supervised;
• to live in the community of the catchment area of St. Joseph's in supervised accommodation approved by the person in charge;
• abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant;
• submit samples of his urine and/or breath to the person in charge of St. Joseph's, or his or her designate for the purpose of analyzing whether Mr. Abernethy has ingested alcohol, drugs or any other intoxicant;
• refrain from having in his possession any firearm, ammunition or other offensive weapon, or being in the company of any person possessing a firearm other than a peace officer;
• refrain from contact or communication, direct or indirect, with Roy Jones, Anna-May Wilson, Elizabeth Wilson, Dan Lorand, Jason Elliot and Janet Hill; and
• when living in the community, report to the person in charge of St. Joseph's, or his or her designate, not less than once per week, or as directed.

Pending his transfer to St. Joseph’s, the Board orders that Mr. Abernethy shall continue to be detained at CAMH on the same terms as are set forth in his existing Disposition.

54. In arriving at our decision, the Board has considered the paramount factor of the safety of the public, Mr. Abernethy’s community reintegration, his mental condition and his other needs, as required by s. 672.5 of the Criminal Code.

DATED this 22^nd^ day of July, 2025, at the City of Toronto, in the Toronto Region.

Ms. L. Banks Legal Member

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Office of the Registrar Ontario Review Board