Re Daniel Pestill, 2025 CanLII 81153

Re: Daniel Pestill

ORB File No: 8785

Hearing held on: July 17, 2025

Place of hearing: Ontario Shores Centre for Mental Health Sciences

700 Gordon Street, Whitby

Pursuant to: Section 672.47(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. C. MacIntyre, K.C.

Members: Dr. W. Johnston

Dr. G. Stones

Mr. D. D’Intino

Mr. J. Cyr

Parties Appearing:

Accused: Daniel Pestill

Counsel: Mr. A. Rai and Ms. A. Szgeti

The person in charge of hospital: Counsel: Ms. A. Marshall

Attorney General of Ontario: Counsel: Ms. N. McDonald

REASONS FOR DISPOSITION

(Dated August 15, 2025)

Introduction

1. On August 16, 2024, the accused, Daniel Pestill was found not criminally responsible on account of mental disorder (NCRMD) with respect to charge of first-degree murder. At the same time, he was found guilty on charges of possession of restricted or prohibited firearm with ammunition, possession of substance in schedule 1 for purposes of trafficking (methamphetamine), possession of substance in schedule 1 for purposes of trafficking (cocaine) and possession of firearm without lawful excuse, all contrary to the Criminal Code of Canada (The Code).

2. On March 20, 2025, Mr. Pestill was designated as a High Risk Accused pursuant to s. 672.64(1) of the Code. The Court made a Disposition Order detaining Mr. Pestill at Ontario Shores Centre for Mental Health Sciences (OSCMHS) pending a Disposition Hearing before the Ontario Review Board (the Board) and furthermore, ordering that he serve the remaining 402 days of his sentence on the drug and weapons charges in Hospital.

3. On July 17, 2025, a panel of the ORB convened in person and a hearing was held at Ontario Shores. The purpose of the hearing was to determine if Mr. Pestill represents a significant threat to the safety of the public as defined in the Criminal Code of Canada, and if so, the necessary and appropriate Disposition.

4. For the reasons set out below, the panel unanimously finds that Mr. Pestill poses a significant threat to the safety of the public and that the necessary and appropriate Disposition to manage that risk while meeting his needs is a Detention Order Disposition, with certain terms and conditions.

Preliminary Issues

5. The package of Hearing Documents provided as part of the Record for this hearing contained several Victim Impact Statements from those who were affected by the index offences. All counsel raised concerns that portions of those statements might be inadmissible insofar as that comments contained in those statements go beyond what is permissible to include.

6. The parties jointly recommended that the Panel exercise its discretion in accordance with the Ontario Court of Appeal decision in Re: Klem¹ to either redact the Victim Impact Statements by excising the offending passages, or simply for the Panel to disabuse itself of the offending passages.

7. As this was an initial hearing, and there is an expectation on the part of the Panel that the Victim Impact Statements would form part of the Record going forward, the Panel opted to redact the offending portions of the statements.

8. Following unanimous agreement among the Panel members, the proposed redactions were sent to all counsel via e-mail and the parties took no issue with the Panel’s redactions.

Current Psychiatric Diagnoses:

9. Schizophrenia

10. Polysubstance Use Disorder (alcohol, cocaine, amphetamines, cannabis)

Index Offences:

11. The facts giving rise to the charges on the index offences are set out in the Hospital Report at pages 3-4 and read as follows:

“On January 21, 2022, Daniel PESTILL called Blue Line Taxi requesting a ride from La Quinta Inn (63 King St E, in Oshawa) to his mother's residence (2258 Prestonvale Rd, Courtice). Michael RYAN was the driver of the taxi (van) dispatched for the fare.

The taxi's dashcam video shows that at about 3:16 pm, Mr. Pestill entered the back seat of the taxi and soon became agitated towards Mr. Ryan. He accused Mr. Ryan of being in a "secret society” and told him to "get the fuck out of the city". He removed a handgun from his backpack and racked it. Mr. Ryan activated the taxi's panic system. Mr. Pestill accused Mr. Ryan of having threatened him in the "summertime". Mr. Ryan denied having done so. Mr. Pestill again told Mr. Ryan to "get the fuck out of Oshawa". Mr. Ryan said he will. Mr. Pestill said Mr. Ryan is a "disgusting ass" and that he is "fucking god damn well now gonna die for it". Mr. Pestill also said, "I'm going to shoot you before I get out, just so you know." Mr. Ryan activated the panic system again. Mr. Pestill struck the plexiglass divider between the front and back seats with his handgun, creating an opening. He pushed the gun through the opening and held it against Mr. Ryan's back. Mr. Pestill then moved the gun up to Mr. Ryan's head. He then struck Mr. Ryan in the head with the gun. Mr. Ryan pushed the gun away with his right hand.

Mr. Pestill struck Mr. Ryan again in the head with the gun. Mr. Ryan pushed Mr. Pestill's hand away again, and pulled over, attempting to escape from the cab.

Mr. Pestill fired the gun into Mr. Ryan's back. Mr. Ryan fell out of the driver's side door towards the rear.

Mr. Pestill put the gun back into his backpack and walked away.

Several people driving by stopped to help Mr. Ryan and called 911. Police and EMS arrived. Mr. Ryan was taken to Lakeridge Health Oshawa where he was pronounced deceased. (A preliminary autopsy report indicates the cause of death as "gunshot wound of torso".)

Police were provided a description of the person who had walked away from the taxi. They quickly located Mr. Pestill nearby on Athol St near Lasalle Ave. They arrested him.

At the time of his arrest, Mr. Pestill had in his possession a Sig Sauer 40 cal handgun, still loaded with one round, in the knapsack he had been carrying. He also had a magazine for the firearm in his pocket, as well as a bag containing crystal meth. In addition, his knapsack contained a plastic bag containing 9 more rounds of ammunition, further plastic bags containing crystal meth, one plastic bag containing cocaine, measuring cups, hydrogen peroxide, two digital weigh scales, and over $20,000 in Canadian currency.

The total weight of the crystal meth was 196.5 grams, and the cocaine was 75.1 grams. At the time, Mr. Pestill was bound by an order made under s. 110 of the Criminal Code prohibiting him from possessing, among other things, firearms and ammunition.

12. Prior to the index offences, Mr. Pestill had accrued the following entries on his Criminal Record:

DATE

OFFENCE(S)

SENTENCE

2016-01-29 Oshawa ON

Fail To Attend Court

$100

2016-01-29 Oshawa ON

Poss of a Schedule II Substance for the Purpose if Trafficking

$100 & Probation 12 MOS (4 days pre-sentence custody)

2017-10-19 Lindsay ON

Obstruct Peace Officer

Suspended Sentence & Probation 12 MOS

2017-12-12 Oshawa ON

(1) Poss of a Schedule I Substance for the Purpose of Trafficking

(1-2) 24 MOS Probation 3 (90 days pre-sentence custody & weapons prohibition

Discretionary Sentence

(2) Poss of a Schedule II Substance for the Purpose of Trafficking (3) Poss of a Schedule I Substance for the Purpose of Trafficking

(4) 24 days conc & probation 3 yrs (90 days pre-sentence custody)

Psychiatric History

According to the court report authored by Dr. Pearce, dated December 23, 2024, Mr. Pestill has advised that he first attempted suicide at the age of 12 or 13, by overdosing on Tylenol #3. He felt he had been depressed most of his life. In 2014, he exhibited mood instability and endorsed suicidal ideation. Between 2019 and 2022, his mental health deteriorated significantly, and he endorsed delusions about being targeted by a secret society as well as auditory hallucinations. He was briefly hospitalized in early 2020 however generally refused to accept psychiatric care or treatment. He denied suffering from a mental illness and minimized his symptoms, despite evidence of psychosis. Mr. Pestill denied having any hospital admissions.

Ontario Shores Centre for Mental Health Sciences – July 2005 – November 2005

According to the court report authored by Dr. Pearce, Mr. Pestill was assessed at Ontario Shores in 2005. A psychological report from August 2001 revealed Mr. Pestill had attended several different schools by that time. It was concluded that Mr. Pestill did not have ADHD, although cognitive testing was recommended. Mr. Pestill was the subject of an in-school case conference in November 2001, at which juncture he was a grade 5 student. An IEP had been in place since grade 4 and he received help from the resource department as a result. He had to repeat grade 5, given his struggles. While his parents were very supportive, their divorce had been difficult for him.

Further, the court report authored by Dr. Pearce reported Mr. Pestill was involved with the adolescent program at between July and November 2005. He was referred by his family doctor, as he had a temper, lied chronically, felt like he didn’t belong, exhibited mood swings, was depressed and he tended to over-react. With respect to his history, he had been unable to perform adequately at school since failing grade 5. He did not want to complete his homework and while he had friends, he did not socialize with them outside of school hours. He was fascinated with music, television and videogames with “dark content.” He dressed “like a punk” and avoided participating in family activities. He had “disappeared” twice from home, in 2004. He stole money and snacks from his parents. It is noted that his parents separated when he was 3 years of age, but he had contact with his biological father every other weekend.

He had started using cannabis. Dr. Sundaralingam, psychiatrist, concluded he suffered from a learning disability and oppositional defiant disorder. He was felt to be immature for his age. Counselling was suggested. Of note, he was to participate in another psychological assessment in the fall of 2005, but his mother postponed it, thus that did not occur.

Durham Regional Police Services (DRPS) – Mental Health Act – December 3, 2014

Police were dispatched regarding a suicide threat/mental health incident. The information received was the complainant’s ex-boyfriend, Mr. Pestill was suicidal and bi-polar. After knocking on the front door for approximately 2-3 minutes Mr. Pestill opened the door and identified himself. Mr. Pestill reported “Yah I was just talking to my ex, she probably called, I'm just having a bad morning, but everything is fine.” Mr. Pestill invited inside his apartment. Mr. Pestill denied suicidal ideation and stated he was just hung over and depressed. He continued to state that he woke up and smoked and began chatting via text with his ex. Mr. Pestill declined to show officers the text messages on his phone.

Mr. Pestill was subsequently arrested for possession for the purpose of trafficking. While being transported to 17 Division cells Mr. Pestill expressed, he did threaten to kill himself this morning and was struggling with suicidal thoughts. Furthermore, text messages sent to the complainant from Mr. Pestill were observed which also confirmed that Mr. Pestill was threatening to end his life.

Lakeridge Health Oshawa Consultation Report by Dr. Ihab Sorial – December 3, 2014

Mr. Pestill was assessed in the emergency department after being brought in by police. Mr. Pestill’s girlfriend had called the police after she believed Mr. Pestill was suicidal.

Mr. Pestill had history of regular marijuana use and his urine drug screen was positive for cocaine and benzodiazepine. Mr. Pestill stated that he wanted to continue to use marijuana, but he stated that he stopped using cocaine and also on the triage report, it said that Mr. Pestill was using MDMA, but he stated that he has not been using that for a long time. Mr. Pestill stated that it was a situational problem, and the girlfriend overreacted. Mr. Pestill denied any thoughts of self-harm, any thoughts of suicide or thoughts of hopelessness or that life is not worth living. He denied any homicidal ideations. He stated that he would never kill himself and that is totally against his beliefs. Mr. Pestill’s mother also stated that she felt safe taking her son home.

Lakeridge Health Oshawa Consultation Report by Dr. Neeraj Bajaj – February 6, 2020

Mr. Pestill was brought to the emergency department by EMS after his family called 911 because Mr. Pestill was acting bizarre. Mr. Pestill was assessed in the emergency department and referred to the psychiatry team. Mr. Pestill became physically aggressive, and police were called. He was paranoid about cameras and felt delusional at the time of the assessment. Mr. Pestill was placed on a Form 1 under the Mental Health Act. Mr. Pestill had blood work done and a urine drug screen (UDS), which was negative, and his blood alcohol level was 0.

Mr. Pestill had a girlfriend of 6 months and has just been recently behold from prison, having spent 2 years in the legal system for being a drug dealer to make money. Mr. Pestill last saw Dr. Sorial is 2014, for being intoxicated from drugs and having fight with his girlfriend at the time. At the time of assessment, he minimized his behavior the night before. He was fully oriented in time, place and person. A thought process was linear. He maintained good eye contact, good rapport, denies any active psychosis but puts his behavior down to a spiritual moment. He then went in to explaining that how he felt his stepfather has been manipulating him all his life.

Mr. Pestill was regretful of his behavior the night before about his aggression. When asked what he would do if he was discharged, Mr. Pestill reported that he wanted to go home and apologize to his father. He denied any thoughts of self-harm, suicide or harm to others and was not certifiable. When I asked to explain why he was behaving aggressive the night before, he reported he was having a spiritual moment. Mr. Pestill showed good insight and said that maybe his spirituality was seen as psychosis.

Mr. Pestill was offered a small dose of antipsychotic medication which he was receptive to. He was started on Seroquel 25 mg orally twice daily. Mr. Pestill’s Form 1 was discontinued and discharged home. He was encouraged to follow up with his family physician and return to the ER if there were any problems with his behaviour.

Lakeridge Health Oshawa – Consultation Report by Dr. Daria Racicovschi – February 14, 2020

Mr. Pestill was referred by Dr. Freeman in the ER. He was brought to hospital by family. Mr. Pestill was living with his family after recently being released from prison after two years for drug trafficking. Mr. Pestill was also using crystal meth on and off. He stated he has been sober for 4 to 5 months. However, his parents’ felt Mr. Pestill was still paranoid due to drugs. He was seen in emergency by Dr. Bajaj about a week ago after Mr. Pestill pushed his stepfather and scared his parents. Upon discharge, Mr. Pestill was started on Seroquel 25 mg twice a day. Urine toxicology and blood work was done and was negative for any drugs or alcohol.

Although Mr. Pestill’s family described episodes of paranoia and psychosis, in the moment Mr. Pestill presented like himself and his family acknowledged that. Mr. Pestill probably has not been using for a while and he made sense. His judgment was good. He was not suicidal or homicidal. There were no auditory or visual hallucinations, so there was no reason to keep him in the hospital; however, the family did not want him back with them because they are scared of him, as there were other children at home. Mr. Pestill, however, has no income and was supported by his parents. Mr. Pestill decided to go to Cornerstone that night and then go to some friends. Mr. Pestill’s parents picked up the prescription of olanzapine for him.

Substance Use History

According to the assessment report authored by Dr. Gojer, dated April 19, 2024, Mr. Pestill reported that he never smoked tobacco. He reported he smoked and vaped cannabis as a teenager close to the age of 15 years and would smoke the drug about two to three times a week. Mr. Pestill stopped using the drug at the age of 25 years; citing he lost interest in it. Mr. Pestill reported that he may have smoked cannabis once in 2020; he stated the drug did not affect him in any way. Me. Pestill tried magic mushrooms in his early 20s. He would grow them. He has also ingested LSD on about 40 times in his early 20s.

According to the court report authored by Dr. Pearce, dated December 23, 2024, Mr. Pestill began using cannabis at age 14, but he stopped briefly in his early twenties given negative effects. He experimented with LSD and mushrooms around this time and used cocaine intermittently. He later transitioned to regular crystal methamphetamine (CM) use, which likely precipitated psychosis and paranoia. Despite this history, he minimized or denied substance use when questioned.

Further, in the court report authored by Dr. Pearce, Mr. Pestill outright denied trying cocaine in the past. He also claimed he had never used amphetamines or opioids. He admitted to drinking regularly in the months leading up to the index offence, up to 22 standard drinks per day, “as the Satanic beings were attacking me.” He opined that he did not require substance abuse treatment programming. Similarly, he did not feel he suffered from serious mental health problems but when asked, continued to endorse numerous delusions, about a secret society and the victim of the index offence. He spoke about “beings” talking to him and arguing amongst themselves. Those experiences interfered with his sleep a bit. He did not feel that they were symptoms of a mental health condition, stating, “Oh no. I can see the beings that are manifested.” He was aware that others, including his parents and those involved in the court process, felt he was mentally ill, but he did not agree with them. He did not need medication but would accept same if “court ordered.”

Without Prejudice Position of the Parties:

14. At the commencement of the hearing, the parties were canvassed for their initial positions.

15. Counsel for the Hospital took the position that the necessary and appropriate Disposition was a Detention Order to the Secure Forensic Service with privileges up to entering the community, escorted by staff. The Hospital elaborated, however, that their position was not the least onerous and least restrictive Disposition, but rather, the appropriate one as allowed by restrictions set out in s. 672.64 (3) of the Code.

16. Furthermore, relying on the ONCA case of Cousineau², the Hospital took the position that the Hospital Grounds are considered by them to be part of the Hospital, and therefore the accused when on Hospital Grounds exercising privileges would not be considered “absent from the Hospital” pursuant to 672.64(3).

17. Counsel for the Attorney General supported the Hospital’s position.

18. Counsel for the accused joined the other parties in their positions, and thus the Panel had a joint recommendation submitted for its consideration which was maintained at the conclusion of the hearing.

Evidence at the Hearing:

19. The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Mark Pearce.

20. Dr. Pearce testified by way of an update to the Hospital Report that the week prior to the Hearing, Mr. Pestill was moved to another secure forensic unit. While there, he has been following recommended programming and has been medication compliant. He currently denies any mood or psychotic symptoms and seems to be progressing in the “right direction”.

21. Dr. Pearce told the Panel that Mr. Pestill is engaging in both EPEC workshops and concurrent disorders treatment to address his longstanding substance abuse issues. Dr. Pearce stated that Mr. Pestill is treatment capable and that at the moment, he is adequately treated. Dr. Pearce does not anticipate any changes to his medication in the coming year because Mr. Pestill has responded well to a moderate dose of his current depot medication.

22. Mr. Pestill’s degree of insight into his mental health and need for treatment was described by Dr. Pearce as “low to moderate” and that in order to develop his insight further, Mr. Pestill has agreed to engage in various therapeutic groups in the fall.

23. Dr. Pearce testified that Mr. Pestill is currently housed in the Forensic Rehabilitation Unit, which is a secure forensic unit and because he does not have an ORB Disposition yet, Mr. Pestill essentially has no privileges.

24. Dr. Pearce further stated that in the coming year, further risk assessments would be conducted with Mr. Pestill and that the treatment plan for him is to aggressively pursue psychoeducational programming with a particular focus on his substance abuse disorders.

25. In response to questions from defence counsel, Dr. Pearce confirmed that Mr. Pestill has not demonstrated any incidents of aggression, violence, threatening comments or behaviour. Furthermore, since commencing his antipsychotic injections, Dr. Pearce has noted no concerns with Mr. Pestill experiencing any auditory or command hallucinations.

26. In response to questions from the Panel, Dr. Pearce testified that he did not see any likelihood of Mr. Pestill being transferred to a general forensic unit in the coming year. Dr. Pearce has found Mr. Pestill to be rather forthcoming when working with him. As it concerns his insight, Dr. Pearce testified that Mr. Pestill accepts that he is mentally unwell, but no “label” has been discussed insofar as how to characterize the cause of his lack of wellness.

27. Dr. Pearce further testified that when he first began working with Mr. Pestill, the latter had expressed some desire to return to substance use, however, more recently, he has denied such cravings and has acknowledged that it would probably be best for him to abstain from substance use going forward.

28. Also, in response to questions from the Panel, Dr. Pearce testified Mr. Pestill’s diagnosis of Schizophrenia and Polysubstance Use Disorder reflects the primary factors driving the accused’s behaviour at the time of the commission of the index offence. Dr. Pearce acknowledged that although Mr. Pestill’s current diagnostic profile is absent any reference to personality traits and behaviours factors, viewed longitudinally there is some evidence of conduct disordered behaviour as a youth and antisocial behaviour as an adult.

29. Dr. Pearce agreed that while there has been no comprehensive psychological assessment to investigate the presence of personality traits and behaviours, this represents a potential information gap in terms of informing ongoing risk assessment, treatment and risk management. Dr. Pearce stated that he was unsure whether the psychologist is planning to conduct such an evaluation using a standardized assessment battery that includes objective measures of psychopathology and personality constructs. Dr. Pearce commented that if the ORB regarded that as information as important and wants to see it included in the accused’s next review, this would be best achieved by raising the matter in the current Reasons.

30. Dr. Pearce also testified that his assessment report dated December 23, 2024 contained a comprehensive assessment of Mr. Pestill’s likelihood of violent recidivism that included the results of four standardized risk assessment instruments: the PCL-R, VRAG, HCR-20 and the SAPROF. Based on that appraisal, Dr. Pearce opined that Mr. Pestill was at moderate to high risk for violent recidivism if released to the community. Dr. Pearce explained that that risk rating primarily flowed from Mr. Pestill’s untreated major mental illness and historical polysubstance use disorder. According to Dr. Pearce, over the past few months Mr. Pestill has shown a good treatment response, his symptoms of psychosis have dissipated and his mental status is now stable. As a result, Dr. Pearce stated that the rating articulated in his December 23, 2024 report, although temporally proximate, may no longer be an accurate reflection Mr. Pestill’s current risk for violent reoffence and need to be updated to reflect changes in dynamic factors.

31. Lastly, Dr. Pearce also confirmed that Mr. Pestill’s parents are visiting him and have been supportive of him.

Analysis and Conclusions: Detention Order

32. Having heard and considered the entirety of the evidence as well as the submissions from the parties, the Board finds that Mr. Pestill poses a significant threat to the safety of the public and therefore a Detention Order Disposition detaining him to the Secure Forensic Service at Ontario Shores is both necessary and appropriate.

33. 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.

34. In determining whether Daniel Pestill represents 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.

35. Mr. Pestill suffers from a major mental illness, namely, schizophrenia, as well as polysubstance use disorder. These illnesses played a significant role in the commission of several very serious index offences, one of which involved the murder of an innocent man who was unknown to the accused.

36. Mr. Pestill had been suffering from psychotic symptoms as a far back as 2020, but has a much longer history with illicit substances, the use of which only exacerbated his psychotic symptoms.

37. When untreated, Mr. Pestill continued to abuse illicit substances and ultimately acted on his paranoid delusions in a violent and tragic manner. Mr. Pestill has only recently entered the forensic system and therefore he has yet to have the opportunity to fully engage in a rehabilitative programming. As a result, his insight into his mental illness, the contributions to his illness by his substance abuse and his need for lifelong antipsychotic medication is underdeveloped, as are his coping skills.

38. Furthermore, due to a lack of Disposition, Mr. Pestill has been unable to exercise any privileges and therefore his ability to function in a prosocial manner outside of the highly structured and secure forensic setting is untested.

39. Lastly, his court ordered High Risk Accused designation statutorily restricts the Dispositions available to the Board whether significant threat is made out, unless and until such a time as that designation is rescinded by the Board.

40. Based on the totality of the evidence before it, notwithstanding the joint recommendation of the parties, the Panel finds that absent a Detention Order Disposition, Mr. Pestill would cease his engagement with Hospital programming, become medication non-adherent and would almost certainly become violent toward others, posing an even greater threat to the safety of the public than he poses now, under secure and structured conditions.

41. In consideration of all the evidence, the submissions of the parties, and the criteria set forth in s. 672.54, the paramount consideration being the safety of the public, in addition to the mental condition of Mr. Pestill, his reintegration into society and his other needs, the necessary and appropriate Disposition is a Detention Order Disposition with terms and conditions.

Analysis and Conclusions: Hospital Privileges

42. At the outset of the hearing, Ms. Marshall for the Hospital directed the parties to page 19 of the Hospital Report, which outlined the Hospital’s recommended terms and conditions to be attached to the Detention Order Disposition.

43. For ease of reference and brevity, only the privileges have been reproduced here:

Disposition Recommendations of the Hospital

The treatment team recommends Mr. Pestill be detained in the secure Forensic Program at Ontario Shores, and recommends he be allowed:

(a) to attend within or outside of hospital for necessary medical, dental, legal or compassionate purposes;

(b) hospital and grounds privileges, escorted by staff;

(c) hospital and grounds privileges, accompanied by staff or person approved by the person in charge; and

(d) to enter the community, escorted by staff.

44. Ms. Marshall was quite clear that in the Hospital’s view the above noted privileges were not indicative of what it considered to be the least onerous and least restrictive Disposition because of the HRA designation. In other words, but for the HRA designation, the Hospital would have recommended a higher ceiling of privileges, which are not available to the accused by virtue of the HRA designation and the associated restrictions set out in the Code.

45. Those restrictions are as follows:

672.64 (3):

Detention of high-risk accused

(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused’s detention must not be subject to any condition that would permit the accused to be absent from the hospital unless:

(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused’s treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and

(b) a structured plan has been prepared to address any risk related to the accused’s absence and, as a result, that absence will not present an undue risk to the public.

46. Ms. Marshall further took the position, relying on Cousineau, supra, and two prior ORB decisions that the Hospital is able to define what is meant by the phrase “absent from the Hospital” as written in 672.64(3) of the Code, and furthermore, that the Hospital grounds are considered by Ontario Shores to be part of the Hospital.

47. These considerations are critical to the Hospital position on the “ceiling” of privileges available to the accused, because the aforementioned section of the Code does not allow the accused to be “absent from Hospital” unless escorted by a person authorised by the person in charge of the Hospital and therefore, whether or not the Hospital grounds are interpreted as part of the Hospital is relevant to the degree of supervision of the accused that is required by the Disposition.

48. Counsel for the Attorney General and for the accused agreed with these privileges and the position of the Hospital. Ms. Szgeti for the accused also alerted the Panel to two previous decisions of the ORB that she believed supported the joint position: Re: Teggart and Re: Grant.

49. For the reasons that follow, the Panel finds that because the Hospital grounds at Ontario Shores are not secured, allows for unrestricted public access and abuts a residential neighbourhood, Mr. Pestill should not be allowed outside the Hospital building unless he is escorted by a person approved by the person in charge of the Hospital.

50. In Re: Cousineau, the ONCA faced questions that are similar to those in issue in this case:

18First, appeal counsel noted that once a high-risk accused designation has been made, s. 672.64(3) does not permit unescorted absence from the “hospital”, but there is uncertainty as to whether “hospital” includes hospital grounds. She urged us to take the opportunity to endorse the view taken by the Ontario Review Board in Grant (Re), [2020] ORBD No. 2518, that a high-risk accused designation does not prevent unescorted absence on hospital grounds. The Crown submits that this court should not make a general ruling on the meaning of “hospital”, pointing out that some hospitals have secure grounds and others do not. It referenced the decision in Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498, where the court recognized that a person subject to a disposition made pursuant to s. 672.54 requiring “custody in a hospital” may or may not receive grounds privileges.

19I would decline to resolve this issue because, although it has broader practical implications, it is not raised in this appeal. I will say, however, that even if “hospital” is broad enough to include hospital grounds, the court or Board making a disposition is not compelled to include unescorted grounds privileges in the disposition it makes. The limits imposed on available dispositions for high-risk accused pursuant to s. 672.64(3) set out the maximum community privileges that can be provided, not the minimum. If public safety is jeopardized by grounds privileges because grounds are not secure at the facility, confinement to the physical hospital buildings could be ordered pursuant to s. 672.54(c). The point, of course, is that “hospital” in s. 672.64(3) could be read to include hospital grounds, without jeopardizing public safety. [Emphasis added]

51. As it concerns the precedential or persuasive value of Re: Grant³ and Re: Teggart⁴ respectively, the Panel relies on the dictum of the ONCA in Transcanada Pipelines Limited, 2000 CanLII 5713 (ON CA):

129Moreover, there is a well-accepted principle of administrative law that stare decisis does not apply to administrative tribunals. A tribunal is not bound to follow its own decisions on similar issues, although it may consider an earlier decision persuasive and find that it is of assistance in deciding the issue before it. See, e.g., Evans v. Public Service Commission Appeal Board, 1983 CanLII 141 (SCC), [1983] 1 S.C.R. 582; Domtar Inc. v. Quebec (Commission d’appel en matire de liasions professionelles)

(1993), 1993 CanLII 106 (SCC), 105 D.L.R. (4th) 385 (S.C.C.).

52. In reviewing those two decisions, the Panel finds that neither decision is helpful for several reasons, but chiefly because both are distinguishable on their facts and because the Panel which decided Grant did not have the benefit of Cousineau and therefore did not consider the fact that the Hospital grounds were not secured and what impact that lack of security would have on the public should the accused be allowed unescorted access to the grounds.

53. While adjudicative consistency is an important principle of administrative law, it is not the paramount concern. The ONCA in Cousineau implicitly endorsed the Crown’s concerns on appeal that Hospital grounds may be secured or unsecured and that the Court should not make a blanket interpretation of what is included in the phrase “Hospital” in 672.54. At paragraph 19, the Court held that if the maximum privilege allowed by statute for a HRA – that being unescorted grounds privileges – were to endanger the public, then the Board could confine the accused to the Hospital buildings pursuant to s. 672.54(c).

54. The Panel takes judicial notice of and finds that the Hospital grounds at Ontario Shores are unsecured – meaning that there are no physical barriers or even any notice to the public to identify them as hospital grounds, to prevent the comings and goings of members of the public. Essentially, the grounds of the hospital are used freely and openly by the community. The Panel takes such notice based on its familiarity with Ontario Shores, acquired during the course of its functions as an adjudicative panel at this facility.

55. Furthermore, given that the Hospital is directly across the street from, and easily accessible to, a large residential subdivision, the Panel finds that the safety of the public would be endangered, should Mr. Pestill be granted unescorted access to the Hospital grounds.

56. The Board is of the view that at Ontario Shores, its hospital grounds are not part of the “hospital” within either the meaning or spirit of s.672.64(3). The Board finds that if Mr. Pestill is given access to the grounds, he is “absent” from the hospital, in which case he requires escort by staff and a structured plan to ensure that his absence does not present an undue risk to the public.

57. The Panel therefore sets out the following privilege levels for Mr. Pestill, in accordance with Cousineau and the mandatory restrictions set out in 672.64 (3):

a. accompanied in hospital;

b. escorted by staff on hospital grounds; and

c. escorted by staff in the community.

DATED this 15^th^ day of August 2025, at the City of Toronto, in the Toronto Region.

Mr. D. D’Intino

Legal Member

___________________________

Office of the Registrar

Ontario Review Board

Footnotes

1. 1Klem (Re), 2016 ONCA 119
2. 2Cousineau (Re), 2021 ONCA 760
3. 37203/7364-Oct 30, 2019
4. 48399-Jan 16, 2025