Re: Michael McGrath
ORB File No: 8723
Hearing held on: Wednesday, June 11, 2025
Place of hearing: Waypoint Centre for Mental Health Care
Pursuant to: Sections 672.47(1) 672.48(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. P. Capelle
Members: Dr. K. Hand
Dr. G. Nexhipi
Ms. M. Chamberlain
Ms. B. Little
Parties Appearing:
Accused: Michael McGrath
Counsel: Mr. S.F. Gehl
The person in charge of hospital: Counsel: Ms. T. Newman
Attorney General of Ontario: Counsel: Ms. J. Armenise
REASONS FOR DISPOSITION
(Dated August 14, 2025)
On February 10, 2025, Michael McGrath was found unfit to stand trial on account of mental disorder a charge of aggravated assault, contrary to the Criminal Code of Canada, (the “Criminal Code”).
On Wednesday, June 11, 2025, the Ontario Review Board convened at Waypoint Centre for Mental Health Care (“Waypoint” or the “Hospital”) pursuant to s. 672.47(1) of the Criminal Code, for Mr. McGrath’s initial hearing. Mr. McGrath was in attendance.
Mr. McGrath informed the Board that he had changed his last name to Alexander and asked to be referred to as “Mr. Alexander”. Therefore, in keeping with his wishes, the accused is referred to as Mr. Alexander throughout these Reasons. Mr. Gehl was present and was prepared to represent Mr. Alexander at the hearing but noted that he required an order of the Board appointing him for this purpose. As such, an Order was made appointing Mr. Gehl to represent Mr. Alexander.
Position of the Parties
At the beginning of the hearing, the parties were asked for their initial without prejudice positions. Ms. Newman, on behalf of the Hospital, submitted that Mr. Alexander is now Fit and should return to court for his hearing. The Hospital asked the Board to make a Keep Fit order detaining Mr. Alexander at the Centre for Mental Health (“CAMH”) Ms. Newman stated that it was unlikely that Mr. Alexander would be transferred to CAMH prior to returning to court but felt that it would be appropriate for him to be on the waiting list for that facility as soon as possible.
This position was supported by Ms. Armenise, on behalf of the Attorney General. Mr. Gehl stated that his client supported the Hospital on the issue of fitness but was opposed to a Keep Fit order. He further stated that, if the Board decided that a Keep Fit order was required, Mr. Alexander was in agreement with a transfer to CAMH.
Index Offence
- The circumstances of the index offence are taken from the Hospital Report, as follows:
“On Friday March 18, 2022, officers attended 184 Sherbourne Street, Toronto in response to an assault in progress. A witness to the assault provided information to the 911-call taker who advised that a male was assaulting another male on the 1st floor. One male is being kicked in the head, does not look like he is awake, male is hitting the male with a frying pan and the assault is still happening. Both males are residents in the building. The assault location as a rooming house; the house has three floors plus a basement
When officers arrive on scene, they locate the victim, Raymond Ozarko lying in a hallway on the first floor. The victim was against the wall next to unit 101, covered in blood and appears to be semi conscious. The area around the victim had a large pool of blood and blood splatter along the hallway walls.
Officers received information that the accused is currently in unit 101, the officers entered the unit and locate the accused. The accused was arrested, transported to 51 division pending a show called cause hearing.”
Current Psychiatric Diagnosis:
- Schizoaffective Disorder, Bipolar Type
Evidence at Hearing:
The evidence at the hearing consisted of the Hospital Report dated May 14, 2025, a Progress Report dated June 11, 2025 as well as the testimony of Dr. Van Impe
Mr. Alexander’s Fitness was assessed by Dr. Van Impe earlier on the day of the hearing with the following noted in the Progress Report:
“I asked him if I could assess his fitness to stand trial and he agreed. He proceeded to answer every Taylor question and to do so in a succinct manner. He did struggle identifying his exact charge but when I indicated he had been charged with aggravated assault he agreed with this. He had no issues describing the title and roles of the different courtroom officials. He identified the pleas available to an accused and remained insistent that he was not guilty. He understood that the courtroom was an adversarial environment and identified the "Crown Attorney" as being against him in court. He told me that the Judge would determine if he was guilty or not guilty. He correctly identified the potential consequences of a guilty finding and a not guilty finding. He correctly identified and defined the terms oath and perjury.
I agreed with MM that he could certainly answer all of the Taylor test questions and he then said, "How can I be unfit then"? I reminded him that he also needed to demonstrate the ability to participate in court in a meaningful manner. I suggested that his primary goal this afternoon should be to have the ORB determine he is fit to stand trial so we can then determine what the court wants to do for next steps. MM informed me that he would allow his lawyer to speak on his behalf at this afternoon's hearing and that he didn't have anything to say…
MM's fitness to stand trial has been known to fluctuate. He has consistently done well with the Taylor test questions but his ability to participate in a meaningful manner has been the issue. He did quite well during the assessment this morning and appears to accept that allowing his lawyer to represent him and speak on his behalf is in his best interests at this time.”
Ms. Newman called Dr. Van Impe to testify on behalf of the Hospital. Dr. Van Impe testified that he had read the Hospital Report and that he agreed with the contents. The doctor authored the Progress Report and confirmed that he believed that Mr. Alexander was fit and could meaningfully participate at trial. Dr. Van Impe felt confident that the risk posed by Mr. Alexander could be managed at CAMH.
Dr. Van Impe explained that there had been no changes since the Hospital Report was prepared. Mr. Alexander was not on any medication; his security level has been a 3 or 4 throughout his time at Waypoint and there have been no seclusions. He has been able to leave the unit on his own without issue. Mr. Alexander continues to speak to himself which he explains as a continuation of his younger years when he had to entertain himself.
Dr. Van Impe stated that Mr. Alexander is able to easily and consistently answer the Taylor Test questions. His only issue is his willingness to answer the questions. He stated that fitness coaching has not been required for Mr. Alexander as he knows the test very well. The doctor had assessed Mr. Alexander’s Fitness to Stand Trial earlier on the day of the hearing and he continued to present as Fit.
Dr. Van Impe was asked about the necessity for a Keep Fit order. The Doctor stated that he does not know what would happen if Mr. Alexander was no longer in a hospital setting. He noted that there would be less oversight and Mr. Alexander’s fitness would not be assessed regularly if he were in a correctional facility. Dr. Van Impe opined that most people find it less stressful to be in a hospital setting than to be in corrections and that stress can affect a patient’s fitness. The doctor opined that this may also be the case for Mr. Alexander.
The Crown asked Doctor Van Impe what could explain the change in Mr. Alexander’s Fitness since the last court appearance. He responded that Mr. Alexander appears to get bogged down in the minutia of the court process and this limits his ability to participate in the hearing. He has consistently indicated that he is not guilty of the index offence and can find the court process required to prove his innocence overwhelming. Dr. Van Impe acknowledged that it was possible that Mr. Alexander could return to court and be found unfit again.
Dr. Van Impe agreed with counsel for Mr. Alexander that his client was capable to consent to treatment and that he was not taking any medication. Dr. Van Impe also agreed that Mr. Alexander’s belief that he was innocent had not changed over time. Mr. Gehl also suggested that, if Mr. Alexander were to return to jail, he might be able to have a bail hearing and be released. The doctor was not aware of the likelihood of a bail hearing but did acknowledge that, in the past, Mr. Alexander had been able to live in the community while engaged with the criminal system.
The Board asked Dr. Van Impe about factors that might affect Mr. Alexander’s stress level (which in turn affects his Fitness) if returned to jail. The doctor noted that, at Waypoint, Mr. Alexander had his own room. The doctor agreed that those around Mr. Alexander find it annoying that he talks to himself loudly and often late at night. He stated that this might aggravate the other inmates if he were to be incarcerated. Mr. Alexander interrupted Dr. Van Impe’s testimony and stated that he has historically been able to have his own cell when incarcerated. He also felt that the issue of him speaking to himself was overblown. He stated that he was an only child and it is common for only children to talk to themselves.
Final Submissions:
At the conclusion of the hearing, the parties were asked for their closing submissions. Ms. Newman, on behalf of the Hospital acknowledged that Mr. Alexander’s Fitness fluctuates over time. She noted the evidence that Mr. Alexander can become overwhelmed and this impacts his ability to participate in the trial process. The evidence, however, is that Mr. Alexander is clearly Fit to Stand Trial at this time. When he is in the Hospital, Mr. Alexander is stable and has access to passes and programs that can help limit his stress and reduce the likelihood that he will become unfit again before returning to court.
Ms. Newman pointed to the Hospital Report which provides Mr. Alexander’s criminal history. She noted that, in the past, Mr. Alexander has presented as quite unwell, including slurred speech and psychotic symptoms, when residing at Toronto South Detention Centre. The treatment team is concerned that, if Mr. Alexander were to be incarcerated, he would experience increased stress, become unfit; and be unable to participate in his trial.
Crown counsel agreed with the Hospital that Mr. Alexander was Fit to Stand Trial. She felt that an order to keep him fit was appropriate given his fluctuating history of fitness. The Crown was mindful of the delay caused by Mr. Alexander’s fluctuating fitness and felt that it was in the public interest to move this matter forward toward trial.
Mr. Alexander’s counsel argued that a Keep Fit order was not necessary. He submitted that the timeliness of the trial was not his client’s fault. He noted that Mr. Alexander was not receiving any specialized treatment in the Hospital that will guarantee that he remains fit. He suggested that the Board should only make a Keep Fit order if there was a reasonable likelihood that Mr. Alexander would remain fit if he stayed in the Hospital. Mr. Gehl stated that, in his view, the evidence was speculative that Mr. Alexander’s current presentation was a result of being in the Hospital.
Findings of the Board:
Having heard and considered all of the evidence and submissions from the parties, the Board agrees with the joint submission of the parties that Mr. Alexander is fit to stand trial. The Board finds the test for fitness, as outlined in s. 672 of the Criminal Code and in R v Taylor and R v Bharwani, has been met. Mr. Alexander does understand the nature and object of the proceedings; he understands their possible consequences, and he can communicate meaningfully with counsel. Mr. Alexander has a reality-based understanding of the nature and object and possible consequences of the proceedings and has the ability to make decisions regarding his case.
The Board relies on the extensive history provided in the Hospital Report as well as the testimony of Dr. Van Impe that Mr. Alexander’s fitness fluctuates and is very fragile. The Board finds that while Mr. Alexander is currently fit, this status is new and most likely aided by the fact that he is living in a facility where he has his own room, is being cared for by medically trained staff and has access to specialized programming. While in hospital, Mr. Alexander will be monitored more closely than in a non-medical facility. The Board agrees with the Crown that it is in Mr. Alexander’s best interests, as well as the public’s for this matter to reach resolution.
Mr. Alexander informed the Board that he had previously had his own room while incarcerated. There was no evidence provided at the hearing that this would be the case if he were returned to custody. The evidence is clear; however, that he would continue to have his own room if he were to remain at the Hospital. This will most likely keep him safer and exposed to less stressors as he awaits his return to court.
For all of the reasons listed above, pending Mr. Alexander’s return to court, pursuant to s. 672.49 of the Criminal Code, we find that the least onerous and least restrictive Disposition is as recommended by the Hospital. We therefore order the following:
pursuant to section 672.48(2) of the Criminal Code that the accused be sent back to court without delay for trial of the issue of whether the accused is fit to stand trial.
that the accused remains subject to the terms of the Warrant of Committal until the court has determined the accused’s fitness to stand trial or until further order of the court.
The Hospital submitted that Mr. Alexander did not require the high secure unit at Waypoint and recommended that he be transferred to CAMH. The Board notes that, Mr. Alexander will be returned to court for a fitness hearing much faster than a transfer can occur. Following the new fitness hearing in court, the court will have to issue a new order. The court could make any of the following orders:
Fit, and detained in hospital pending the completion of their criminal matter (a court-ordered keep fit). This order can name whatever forensic hospital makes the most sense for the accused given where their criminal matter is proceeding.
Fit, and detained in jail if the court determines a court ordered keep fit is not required.
Fit, and released from custody on bail (or another form of release) pending the completion of their criminal matter.
Unfit, and a new WOC issued detaining them in hospital pending another initial ORB hearing.
Therefore, the Board has not made an order transferring Mr. Alexander to CAMH at this time.
DATED this 14th day of August 2025, at the City of Toronto, in the Toronto Region.
Ms. M. Chamberlain
Legal Member
Office of the Registrar
Ontario Review Board