Re C.W., 2025 CanLII 78532

Re: C.W.

ORB File No: 7843

Hearing held on: Tuesday, May 6, 2025

Place of hearing: Waypoint Centre for Mental Health Care 500 Church Street, Penetanguishene

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

Before: Alternate Chairperson: Mr. M. Segal Members: Dr. K. Hand Dr. L.O. Lightfoot Ms. M. Chamberlain Mr. J. Cyr

Parties Appearing: Accused: C.W. Counsel: Mr. F. Bernhardt

The person in charge of hospital: Representative: Ms. M. Kraftscik

Attorney General of Ontario: Counsel: Ms. S. Curry

REASONS FOR DISPOSITION

(Dated August 5, 2025)

1. On December 22, 2020, C.W. was found not criminally responsible on account of mental disorder on a charge of sexual assault, contrary to the Criminal Code of Canada (the "Criminal Code").

2. Mr. C.W. is currently subject to a Disposition of the Ontario Review Board dated May 29, 2024, discharging him on various terms and conditions.

3. On Tuesday, May 6, 2025, the Ontario Review Board convened a hearing at Waypoint Centre for Mental Health Care (“Waypoint”) pursuant to s. 672.81(1) of the Criminal Code. Mr. C.W. was in attendance and was represented by his counsel, Mr. Bernhardt.

Position of the Parties

4. Ms. Kraftscik, on behalf of the hospital, submitted that Mr. C.W. no longer represented a significant threat to the safety of the public and recommended that he be absolutely discharged. Ms. Curry, on behalf of the Attorney General, anticipated joining the Hospital but wished to hear the evidence beforehand. Mr. Bernhardt stated that his client was in agreement with the Hospital’s position.

Index Offences:

5. The circumstances of the index offences are taken from the most recent Reasons for Disposition, as follows:

“The following was extracted from the Agreed Statement of Facts, as included in the Ontario Review Board Ordered Risk Assessment prepared by the Centre for Addiction and Mental Health.

‘The victim, Ms. F.F., is Mr. C.W.’s mother. At the time of the offence, she was diagnosed with terminal cancer. She passed away a few weeks after the offence took place.

Ms. F.F. and Mr. C.W. lived together at […] K. Road, in unit […]. On Sunday, August 26, 2018, Mr. C.W. woke up from a nap in a bizarre state and was acting in an uncharacteristic manner. While hopping on one leg, he announced ‘everyone has to fuck their mother’ and approached his mother, who was seated in the living room.

Ms. F.F., disturbed by the comment and her son’s behaviour, attempted to leave the apartment and made her way into the hallway.

In the hallway, Mr. C.W. digitally penetrated his mother’s vagina without her consent. He also recalls attempting intercourse with her but was not able to perform. He then masturbated into her underwear while she was wearing them.

At the time, Ms. F.F. had alleged that Mr. C.W. penetrated her with his penis. Mr. C.W. acknowledges that the Crown may have been able to prove this but does not have a clear memory of it and is not in a position to accept this fact as substantially correct.”

Current Psychiatric Diagnoses:

• Schizoaffective Disorder
• Alcohol Use Disorder

Evidence at Hearing:

6. The evidence at the hearing consisted of the Hospital Report dated March 17, 2025 and the testimony of Dr. Ismail. Mr. C.W.’s aunt also addressed the Board.

7. Mr. C.W.’s progress since his last annual review is summarized in the Hospital Report as follows:

“ Mr. C.W. carries a diagnosis of Schizoaffective Disorder and Alcohol Use Disorder. His insight into his mental illness is considered fair, and he continues to demonstrate consistent engagement with treatment. He independently manages his oral medications and receives his long-acting injectable without difficulty. Although a recent blood draw showed subtherapeutic levels of lithium and valproic acid, Mr. C.W. provided evidence of adherence through blister packs, and his levels returned to therapeutic range within two weeks. He has participated in group programming, including the Illness Management and Recovery group and a virtual Relapse Prevention program, indicating a willingness to understand and manage his conditions.

There have been no concerns regarding risk to others during this review period. Mr. C.W. has not expressed any violent ideation, intent, or plans, and he denies experiencing psychotic symptoms such as hallucinations or delusions. His thought process has been linear and goal-directed, with no evidence of disorganization or paranoia. He demonstrates awareness of factors that could increase his risk and has taken proactive steps, including abstaining from substances and engaging in relevant treatment. His drug screens have consistently returned negative, and he has complied with all supervision conditions without concern. “

8. Ms. Kraftscik called Dr. Ismail to give evidence on behalf of the hospital. The doctor agreed with the contents of the Hospital Report including the risk assessment located on pages 44 and 45.

9. Dr. Ismail stated that Mr. C.W. has shown a significant improvement regarding his insight into his mental illness and the required treatment during the last reporting period. There have been no issues with violent thoughts or behaviour, he has exhibited no negative symptoms, there have been no admissions to the Hospital and his urine screens have all been clean.

10. Mr. C.W. is employed at a grocery store where he works two to three days each week and he volunteers as a stage manager at a local theatre. He takes piano lessons as well as driving lessons.

11. Dr. Ismail informed the Board that if Mr. C.W. is granted an absolute discharge, he will continue to have medical oversight by the Hospital until his care is transitioned to the community ACT team in Orilla. He expects that this transition will occur within the next few months. The Hospital, and later, the ACT team will monitor Mr. C.W.’s blood levels and provide his injections every three months. Mr. C.W. will continue to take is oral medication daily.

12. Mr. C.W. lives with his aunt and uncle who are a major support to him. This housing arrangement is contingent upon Mr. C.W.’s regular follow-up with mental health professionals and his continued abstinence from substances. If Mr. C.W. were exhibiting symptoms, he would be willing to voluntarily return to the Hospital. Substances have not been an issue for Mr. C.W. since 2023.

13. In response to questions from the Board, Dr. Ismail stated that there was no plan for him to move out of his current placement. Mr. C.W. gets along well with his aunt and uncle and is happy to be living there. Mr. C.W.’s aunt is willing to continue supporting her nephew as long as he remains compliant with treatment.

14. Dr. Ismail stated that Mr. C.W.’s other supports in the community include his family doctor, his family and friends in the region as well as in Toronto. He has his job, and his main recreational activity is his work with the local theatre.

15. The doctor was asked if there were any other supports or treatment that Mr. C.W. required. Dr. Ismail stated that he did not need anything at this time. He also noted that Mr. C.W. is very self directed and can find programs that he thinks he will benefit from. Mr. C.W. successfully completed an eight-week Illness, Management, and Recovery (IMR) group offered by MTST staff. Additionally, he self-referred to and completed a five-session virtual Relapse Prevention for Co-occurring Disorders group offered through a Windsor addictions facility.

16. Mr. C.W.’s aunt also gave evidence to the Board. She stated that Mr. C.W. is an active member of the home. She stated that he cooks dinner once per week, he assists with shoveling the snow and raking the leaves. He does his own laundry and cleans up after himself in the kitchen and bathroom.

Final Submissions:

17. At the conclusion of the hearing, counsel for the Hospital congratulated Mr. C.W. on his exemplary progress over the last few years.

18. Counsel for the crown stated her full support of the Hospital’s position and congratulated Mr. C.W. on all of his work and specifically the self-directed programs that he has engaged in during the past year.

Findings of the Board:

19. The Board unanimously finds that Mr. C.W. no longer poses a significant threat to the safety of the public. In arriving at this determination, the Board considered the position of the parties and accepted the uncontroverted evidence of Dr. Ismail. The Board also relies on the Hospital Report.

20. Mr. C.W. has had a very good year. He has the strong support of his aunt who ensures that he assists with the care of the home. He has a job and is engaged in activities in the community. The Hospital has confirmed that they will continue to work with Mr. C.W. until the community team takes over his care.

21. The Board must decide whether the evidence establishes that Mr. C.W. continues to represent a significant threat to the safety of the public. The relevant legal principles to be applied are outlined in Marmolejo (Re), 2021 ONCA 130 at paragraphs 34 to 37.

"[34] Accordingly, the role of the Board is first to determine whether an NCR accused represents a significant threat to public safety. If the answer to that question is “no” or uncertain then the NCR accused must be discharged absolutely: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at pp. 659-661, 669. If the NCR accused does present a significant threat, the Board must either conditionally discharge or detain the individual: Winko, pp. 662, 669.

35It is important to bear in mind that the Board’s responsibility to grant an absolute discharge is non-discretionary in the event that it harbours any doubt about whether the NCR accused represents a significant threat: Carrick (Re), 2018 ONCA 752, at para. 16. As the majority of the Supreme Court emphasized in Winko, at pp. 652-653: “Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.”

36Individuals with mental disorders are not inherently dangerous: Winko, at p. 653. There is no presumption of dangerousness and no burden on the NCR accused to prove a lack of dangerousness: Winko, at pp. 660-661, 662. Rather, the legal and evidentiary burden of establishing significant threat rests on the Board or the court: Winko, at p. 663.

37The threshold for significant risk is “onerous”: Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public: R. v. Ferguson, 2010 ONCA 810, at para. 8. The conduct must be of a serious criminal nature: Ferguson, at para. 8. A very small risk of grave harm will not suffice, nor will a high risk of trivial harm: Ferguson, at para. 8. The threat must be more than speculative in nature; it must be supported by evidence: Winko, at p.665; Pellett (Re), 2017 ONCA 753, 139 O.R. (3d) 651, at para. 21."

22. After considering the evidence and submissions of counsel, the Board finds that the evidentiary burden to establish significant threat has not been met and the Board is unable to conclude that Mr. C.W. is a significant threat to the safety of the public. For these reasons, Mr. C.W. must be discharged absolutely. The Board wishes Mr. C.W. well in the future.