Ontario Review Board
Re: M. (K.)
ORB File No: 8466
Hearing held on: Tuesday, May 13, 2025
Place of Hearing: Royal Ottawa Mental Health Centre
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: P. Capelle
Members: Dr. S. Lessard
Dr. G. Boulais
Ms. M.L. Bridger
Ms. N. Lemieux-McKinnon
Parties Appearing:
Accused: M. (K.) Counsel: J. Dubuisson
Person in charge of hospital: Hospital Representative: Dr. M. Strike
Attorney-General of Ontario: Counsel: Ms. M. Dufort
REASONS FOR DISPOSITION
(Dated August 6, 2025)
Introduction
On January 17, 2024, the accused, M. (K.), was found not criminally responsible by reason of mental disorder on a charge of sexual interference, contrary to the Criminal Code of Canada (the Criminal Code). M. (K.) is currently subject to a Disposition of the Ontario Review Board dated May 8th, 2024 and an order amending that Disposition dated June 19th, 2024 which detains him at the secure forensic unit of the hospital with privileges up to and including to live in the community accommodation approved by the person in charge.
On May 13th, 2025, a panel of the Ontario Review Board (the ORB or the Board) convened a hearing at the Royal Ottawa Mental Health Centre (ROMHC) pursuant to s. 672.81(1) of the Criminal Code. The annual review for M. (K.) was held in person. The Hospital was represented by Dr. Melanie Strike, the Attorney-General by Ms. Marie Dufort and M. (K.) by his Counsel, Jean Dubuisson. Also in attendance were M. (K.)’s mother and sister, as well as Case Manager Steve Su and Montfort Renaissance Case Worker, Josee Ann Thibodeau. M. (K.)’s father arrived after the hearing was underway.
The issues to be addressed are whether M. (K.) continues to meet the threshold for significant threat to the safety of the public and, if so, to determine the Disposition that is necessary and appropriate in all the circumstances.
Initial Without Prejudice Position of the Parties:
Dr. Strike submitted that M. (K.) remains a significant risk and is recommending that he now be made subject to a conditional discharge with a reporting requirement of not less than once every two months together with the removal of the abstention clause regarding the consumption of substances. Ms. Dufort advised that she agreed with the determination of significant risk and would have questions regarding the appropriateness of a conditional discharge disposition.
Dubuisson advised he would wait until having heard Dr. Strike’s evidence before enunciating his client’s position regarding an appropriate disposition but conceded the ongoing presence of significant risk.
Index Offence
- The background leading up to and circumstances of the index offences are set out in last year’s Reasons for Disposition as follows:
"The victim is J.S., a 5-year-old girl who is the youngest daughter of S.S., J.S. and her sister A-J. S. immigrated to Canada in July 2022. After arriving in Ottawa, S.S. struggled to find adequate housing for her your family. P.J.M.A. graciously opened her door and let S.S. and her daughter live in her residence located at 2268 Mondevi Street, in the City of Ottawa.
The accused, M. (K.) is a 20-year-old male, who moved into the residence in November with his mother. M. (K.) is P.J.'s grandson. On the night of January 23rd, 2023 to January 24th, 2023, the victim J.S. was sleeping on her bed located at 2268 Mondevi Street. While J.S. was asleep, the accused, later identified as M. (K.) walked into J.S.’s room. M. (K.) picked J.S. up and carried her to his room.
J.S. woke up and asked M. (K.) where she was. M. (K.) responded "you are in my room." J.S. told M. (K.) she "needs to go back to sleep in her room." M. (K.) carried J.S. downstairs to the washroom. M. (K.) locked the door behind them and undressed.
M. (K.) proceeded to undress himself. M. (K.) took J.S.'s hand and placed it on his penis. M. (K.) also placed his penis of J.S. inner thigh. M. (K.) unlocked the bathroom door and returned J.S. to her bedroom.
Sometime later, M. (K.) was walking near J.S.'s bed, causing S.S. to wake up. S.S. used the light on her cellphone to illuminate M. (K.) and asked what he was doing. M. (K.) did not say anything right away. S.S. asked M. (K.) "what he was doing?" M. (K.) said he was making sure the children were sleeping. S.S. told M. (K.) she is the children's mother, and it is her job to make sure they are sleeping.
On the morning of January 24th, 2023, J.S. told her sister A-J.S. what happened to her. A-J.S. immediately brought J.S. to her mother. J.S. told her mother what happened. J.S. spoke to M. (K.)'s mother, J.E. as well as his grandmother P.J.M.A.. P.J.M.A. told her grand-daughter, J.R. who said they should call the police or get M. (K.) some help at the hospital. J.R. confronted M. (K.) who confirmed the allegation but indicated "she is not a child she is an angel and my wife."
D.P., M. (K.)'s father was called and took M. (K.) from the residence. On February 13th, 2023, M. (K.) called the police and reported the sexual assault."
Evidence at the Hearing
The Board admitted into evidence the Hospital Report dated April 25th, 2025 as Exhibit 1. That document provides a great deal of information concerning M. (K.)’s personal history, mental health history as well as his course in hospital and in the community both prior to and subsequence to the index offence. As the Hospital Report was made an Exhibit, it is unnecessary to reproduce the information contained therein in these Reasons.
Dr. Strike advised that she has no updates to the Hospital Report. The recommended disposition for the year to come is a change from the current Detention disposition to a Conditional Discharge disposition. The clinical recommendation is to avoid consumption of all illicit substances which could precipitate another psychotic episode. Urine tests have all been negative for the past year. As a result, the availability of a Form 49 under a detention disposition as well as the specification of a residential address are no longer required. M. (K.) has demonstrated his ability to follow the recommendations of the treatment team as well as of his family.
M. (K.) has a history of treatment compliance and of respecting the terms and conditions of his disposition. As a result, it is not anticipated that there would be any problems in returning or admitting him voluntarily to hospital as needed.
Ms. Dufort referenced paragraph 48 of last year’s Reasons for disposition wherein it is reported that M. (K.) was unwilling to discuss the index offence in the presence of his mother. Dr. Strike testified that her patient now admits to the aforementioned offence as well as experiencing shame for having hurt a small child. Dr. Strike added that M. (K.)’s mother no longer denies that he committed the offence. It was unclear to Dr. Strike why M. (K.)’s mother has had a change of heart about this, adding that a sexual offence by her son against a child was difficult to accept. Dr. Strike opined that M. (K.)’s mother may have received a better appreciation of her son’s circumstances as a result of what she learned at last year’s hearing. Responding to questions from the panel, Dr. Strike stated there was likely a cultural reason why M. (K.)’s mother initially denied the occurrence of the subject charges for which her son was found NCR.
It was noted that M. (K.) is not to have contact with children under the age of six without adult supervision. Dr. Strike responded that since her May 1st, 2025 Hospital Report Update there has been only one contact with the patient’s father, the father’s wife and their children. This occurred during a recent family supper, which apparently went well. This type of engagement is important to determine if M. (K.) maintains a sexual interest in children, outside of his psychotic episode. Further, it is important to retain family contacts, which were quite frequent prior to the commission of the index offence. Always however, with an adult present.
M. (K.) is quite confident vis-à-vis his ability to live independently and to pursue his studies notwithstanding that these strengths have not yet been demonstrated. To his credit, M. (K.) did very well in a recent functional evaluation but to actually complete activities of daily living when living alone constitutes a further step.
M. (K.) is actively looking for an apartment with the benefit of a subsidy from Montfort Renaissance which comes with certain conditions attached. Specifically, that the apartment be furnished with the assistance of Montfort Renaissance, as well as regularly inspected for cleanliness by the responsible case manager. Ideally, M. (K.) will be moving into a subsidized apartment by June 1st 2025.
Dr. Strike believes that if M. (K.) is asked to attend at the hospital for assessment and/or admission he will do so, on a balance of probabilities. He will do so in order to retain a subsidized apartment, ensure the ability to follow his educational pursuits, or in order to maintain employment.
Asked if ongoing medication compliance should be included in a proposed conditional discharge disposition, Dr. Strike responded that it should, noting that M. (K.) will consent to a s. 672.55 Criminal Code requirement to do so.
Responding to questions from Mr. Dubuisson, Dr. Strike testified that it is essential for M. (K.) to continue regular blood testing as he is prescribed Olanzapine, the presence and concentration of will be detected in samples provided.
Closing Observations
Dr. Strike noted that M. (K.) has consented to a s. 672.55 treatment clause. The condition that he not consume substances has been removed as the treatment team is confident he will abstain from same although testing remains essential to oversee his ongoing compliance with oral medications. Dr. Strike submitted that the presence of significant risk, although diminished, remains. A conditional discharge is now appropriate in part due to M. (K.)’s involvement with Montfort Renaissance and the conditions attached to his apartment subsidy. To his credit, M. (K.) had perfect adherence to his prescribed medication during the year under review. As a result, the Mental Health Act is now sufficient to manage his risk, as he states he will consent to return to hospital and to agree to admission as requested.
Dr. Strike concluded by stating that M. (K.) has reached a point where he is now ready to move forward in his life. Ms. Dufort supported the Hospital’s position.
Dubuisson confirmed that if a conditional discharge is ordered, a s. 672.55 provision can be added with the patient’s consent. However, premised on Dr. Strike’s evidence at hearing, Mr. Dubuisson submitted that an absolute discharge is appropriate. Mr. Dubuisson submitted that it is clear that his client has made much progress, works well with his treatment team, and has had no problems with medication. M. (K.) has changed his life and now wishes to live independently absent any restrictions.
Analysis and Decision
(a) Significant Threat
Ongoing significant threat to the safety of the public cannot be speculative. It must entail a real risk of serious physical or psychological harm arising from conduct that is both serious and criminal in nature.
In determining whether M. (K.) continues to represent a significant threat to the safety of the public the Board has carefully analyzed the evidence as it relates to the Supreme Court of Canada decision in Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
The Board unanimously finds that M. (K.) continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the both the initial joint position of the parties and accepted the uncontroverted evidence of Dr. Strike that M. (K.) continues to pose a significant threat. This Panel of the Board also carefully considered Mr. Dubuisson’s closing submission. Patient’s Counsel argues that subsequent to having heard and considered Dr. Strike’s testimony, his client should be granted an Absolute Discharge. However, in the course of closing submissions, when requesting an absolute discharge, Mr. Dubuisson did not address why the evidence at hearing was sufficient to refute the basis of Dr. Strike’s expert opinion. M. (K.)’s achievements during the year in review demonstrate progress made as well as a reduction of his risk to public safety. However, there is insufficient evidence to substantiate a determination, on a balance of probabilities, that this patient no longer meets the threshold of significant risk as set out in Winko.
In addition to Dr. Strike’s testimony, this Panel of the Board also relies on the contents of Hospital Report and more specifically the Risk Assessment contained therein at page 31, pasted below for ease of reference:
Pour évaluer le risque de violence future de M. (K.), nous avons utilisé le HCR-20, version 3, un instrument de jugement clinique structuré. Sur la base de cette évaluation, je suis d'avis que M. (K.) présente probablement un risque faible à modéré de violence future. Par violence, nous entendons tout comportement agressif qu'il a manifesté par le passé, en particulier les agressions sexuelles et les contacts sexuels. Son risque global de violence a diminué au cours de l'année écoulée.
Given the foregoing, the Board determines that absent an ORB Disposition, M. (K.) would likely become non-compliant with prescribed medications which would lead to decompensation, use of substances and the re-emergence of behaviours similar to those seen at the time of the index offences. We are satisfied that absent an ORB Disposition, it is likely that M. (K.) will cause serious physical or psychological harm to members of the public and such conduct will likely be criminal in nature.
(b) Disposition
Flowing from the Board’s finding that, M. (K.) continues to pose a significant threat to the safety of the public it must shape a Disposition for the year ahead. Its paramount consideration in doing so must be the safety of the public while also considering M. (K.)’s needs pursuant to s. 672.54 of the Criminal Code.
The necessary and appropriate disposition for M. (K.) provides him as much freedom as possible without subjecting the community to a real risk of dangerous behaviour.
In considering Mr, M. (K.)’s needs, the Board was attentive to his desire to reside in a subsidized apartment, further his education and/or maintaining employment. These objectives will require that he continue to avoid the consumption of illicit substances.
As M. (K.)’s level of risk has diminished it is appropriate for him to transition from a Detention to Conditional Discharge Disposition. The addition of a s. 672.55 clause adds a safeguard for enabling treatment which is more robust than the provisions of the Mental Health Act. Therefore, this Panel of the Board accepts, that if M. (K.) is asked to attend at the hospital for assessment and/or admission, he will do so, in order to retain a subsidized apartment, ensure the ability to follow his educational pursuits, or in order to maintain employment.
Conclusion
Therefore, the Board unanimously determines that the necessary and appropriate Disposition required to manage the threat M. (K.) poses to the safety of the public while still meeting his needs, is a Conditional Discharge. In arriving at this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Strike and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, M. (K.)’s mental condition, his reintegration into society and other needs.
DATED this 6th day of August, 2025, at the City of Toronto, in the Toronto Region.
P. Capelle
Alternate Chairperson
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Office of the Registrar Ontario Review Board