Re K. (E.), 2025 CanLII 81157

Re: K. (E.)

ORB File No: 3995

Hearing held on: Wednesday, June 11, 2025

Place of hearing: Waypoint Centre for Mental Health Care

Pursuant to: Section 672.81(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: K. (E.) Counsel: Mr. S.F. Gehl

The person in charge of hospital: Representative: Ms. T. Murdock

Attorney General of Ontario: Counsel: Ms. J. Armenise

REASONS FOR DISPOSITION

(Dated July 16, 2025)

1. On June 9, 2004, K. (E.) was found not criminally responsible on account of mental disorder a charge of sexual assault, contrary to the Criminal Code of Canada, (the “Criminal Code”).

2. Mr. K. (E.) is subject to a disposition of the Ontario Review Board (the “Board”) dated July 19, 2024, which orders that he be detained at the Waypoint Centre for Mental Health Care – High Secure Provincial Forensic Programs, Penetanguishene (“Waypoint” or the “Hospital”), with hospital grounds privileges beyond the high secure perimeter, escorted by staff.

3. On Wednesday, June 11, 2025, the Ontario Review Board convened a hearing at Waypoint pursuant to s. 672.81(1) of the Criminal Code. Mr. K. (E.) was in attendance and was represented by his counsel, Mr. S. Gehl.

Position of the Parties

4. Ms. Murdock, on behalf of the hospital, recommended no change to Mr. K. (E.)’s current Disposition. This position was supported by Ms. Armenise, on behalf of the Attorney General.

5. Mr. Gehl opposed the determination that his client remained a significant threat to the safety of the public. He submitted that, if the Board, found that Mr. K. (E.) did pose a significant threat, that he should be transferred to a medium security facility such as St. Joseph’s Healthcare in Hamilton (“St. Joseph’s).

Background and Index Offences:

6. Mr. K. (E.) was born the first in a sib-line of four and raised in Kitchener, Ontario. Mr. K. (E.) did not, however, share a biological father with his siblings. At the age of six months, Mr. K. (E.)’s father was deported to Jamaica. According to his mother, she had been physically abused by her husband, had herself been in jail on a number of occasions, and was involved with drugs and alcohol when she was younger, though apparently not while she was pregnant.

7. As a child, Mr. K. (E.) had difficulties in school as a result of a learning disorder, specifically Dyslexia and required special classes. Mr. K. (E.) was expelled from school for having brought three weed bongs onto the premises. He completed Grade 10, left school during the following year, and was later employed in short-term work within the roofing, butchery and trucking industries.

8. Mr. K. (E.) was in foster care during 1999, although, the reasons remain unclear. He reports that he was sexually abused by a babysitter when he was nine years old.

9. Mr. K. (E.) was reportedly aggressive toward his siblings during his early years and this continued to the time of his index offence. Three of his Assault convictions involved his sister. On the first occasion, Mr. K. (E.) threw a hammer at her. On the second occasion, he beat her up. And on the third, Mr. K. (E.) slashed her with a knife, resulting in his incarceration at the time of the Index Offence. It is documented that Mr. K. (E.)’s sister required 112 sutures to close the knife wounds inflicted by him.

10. Mr. K. (E.)’s current psychiatric diagnosis consists of:

• Schizoaffective Disorder, Bipolar Type
• Cannabis Use Disorder, in sustained remission, in a controlled environment
• Antisocial Personality Disorder, and
• Attention Deficit Hyperactivity Disorder, by history

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

“The victim, a Corrections Officer employed by the Sudbury District Jail named Ms. M., was locking up inmate K. (E.). Ms. M. asked Mr. K. (E.) if he needed anything at which point Mr. K. (E.) responded “no,” and then reached through the feeding slot in the cell door and grabbed Ms. M’s breast. Ms. M. broke away from Mr. K. (E.) and asked him what he was doing and he began to state, “I’m sorry. I’m sorry.” Ms. M. received no physical injuries as a result of the assault.

At the time of the offence, Mr. K. (E.) was on a Probation Order dated December 16, 2002, with conditions to Keep the Peace and Be of Good Behaviour. He had been held in the Sudbury Jail since March 25, 2003, without bail, related to a charge of Aggravated Assault involving slashing his sister with a knife. Information which accompanied Mr. K. (E.) on his transfer to the North Bay Psychiatric Hospital indicates that he was assessed on numerous occasions with regards to the index offence and that he was consistent in his responses. It is document that Mr. K. (E.) had stated, “they think that I touched her breast; I just touched the side of her sweater; it was cold in my cell; I think I was somewhat at fault; I wouldn’t do it now as I’m not cold.” He stated, “I just woke up from a nap after dinner.” He denied knowing it was wrong, although he acknowledged that he was living in the present, not the future. His explanations were very similar when told to other staff members. Mr. K. (E.) has no known history of previous sexually inappropriate behaviour.”

Evidence at Hearing:

12. The evidence at the hearing consisted of the Hospital Report dated May 14, 2025, as well as the testimony of Dr. Van Impe.

13. Mr. K. (E.)’s progress since his last annual review is summarized in the Hospital Report dated as follows:

“ At the start of this review period, Mr. K. (E.) was a patient on the Forensic Assessment Program and the hope was that he could be returned to Beausoleil, a program in our facility that he is quite familiar with. Unfortunately, as a result of medication non-compliance, manic and psychotic symptoms, threats of violence and physical aggression, Mr. K. (E.) was transferred to Beckwith on September 3, 2024. An exhaustive list of significant events over the course of the past year is included elsewhere in this report and will not be repeated here. Mr. K. (E.) was deemed incapable of consenting to the treatment of his mental disorder on August 14, 2024 and his brother acts as substitute decision maker. He did not challenge the incapacity finding initially but after being secluded once again in April 2025 he requested a Consent and Capacity Board hearing which will occur on May 8, 2025.

Mr. K. (E.) was secluded at the time of his last ORB hearing and that seclusion period ultimately extended from May 22 – October 27, 2024. Since that period of seclusion was discontinued, Mr. K. (E.) has been secluded on three additional occasions for 6 days, less than 7 full days, and most recently for three days from April 25-28, 2025. This most recent seclusion was initiated after Mr. K. (E.) was overheard stating that he wanted to punch the female team leader in the face. Mr. K. (E.) has a remarkable ability to deflect any responsibility for his conduct and consistently blames his behavior on being mistreated by staff. This tendency to deflect responsibility externally is in my opinion, a result of his antisocial personality disorder and him, as a result of psychosis, misperceiving neutral events as being malicious and targeted against him. “

14. Ms. Murdock called Dr. Van Impe to give evidence on behalf of the hospital. The doctor stated that he had read the Hospital Report and agreed with its contents. Dr. Van Impe further noted that the risk assessment contained at pages 327 and 328 of the report formed the basis for his opinion that Mr. K. (E.) remains a significant threat to the safety of the public.

15. Dr. Van Impe noted that Mr. K. (E.) had been transferred to Waypoint from a less secure facility in 2023 as the staff at that hospital were not able to not manage his risk. The doctor informed the Board that the past reporting period has not been a good one for Mr. K. (E.). He regularly refused to take his medication and this had occurred as recently as June 5th. Throughout the reporting period, Mr. K. (E.) had been physically and verbally aggressive towards staff and was secluded on a number of occasions. Dr. Van Impe testified that if Mr. K. (E.) were to go back to a less secure facility, it would not be a long time before they would be asking for him to return to Waypoint.

16. The best outcome that Dr. Van Impe could imagine for Mr. K. (E.) in the coming year would be for him to be transferred back to the Beausoleil unit at Waypoint. If he did well there, the Hospital could then consider a transfer to a less secure hospital.

17. In the weeks since the Hospital Report was prepared, the doctor stated that Mr. K. (E.) had done fairly well. He could still anger quickly and on June 6th he became angry with staff and refused to take his medication. He resumed taking his medication on June 7th. This was a slight improvement as he was able to decide to resume his medication after missing it for only one day.

18. Dr. Van Impe stated that Mr. K. (E.)’s insight is poor and he does not see the need for medication which makes it hard for hospital staff to get him to take it. The doctor stated that even if Mr. K. (E.) did not see the need for the medication, if he would agree to take it to show that he is trying to work through the ORB system, that would be helpful. He can sometimes take his medication for this reason but when he becomes angry, that emotion overrides him. Mr. K. (E.) has been in the ORB system since 2004. He knows there is a process to get out of the system but he does not agree with that process. He does not seem motivated to begin the process again.

19. Mr. K. (E.) was secluded four times during the reporting period. He does not accept his role in the seclusions. They usually resulted from misperceptions on his part associated with symptoms of his psychosis.

20. In order to be transferred to Beausoleil the Hospital would need to see Mr. K. (E.) demonstrate sustained compliance with medication and remain out of seclusion. Dr. Van Impe stated that Mr. K. (E.) has the ability to get to the Beausoleil unit and felt that he could do well there. The Hospital would want to see the same improvements before considering a transfer to a medium secure Hospital. It would be best for Mr. K. (E.) to progress to Beausoleil before a transfer to a medium secure hospital is considered, but this would not be a requirement.

21. Dr. Van Impe also suggested that Mr. K. (E.) could continue to improve his participation in groups like the CBTp/DBT and cooking classes. He could also work on not allowing his disagreements with staff to escalate.

22. In response to questions from Crown counsel, Dr. Van Impe stated that Mr. K. (E.)’s behaviour is both a result of his schizoaffective disorder as well as his anti-social disorder. Mr. K. (E.) usually does not like rules and does not think that the rules affect him. When he is not taking his medication and becomes unwell, his psychotic behaviours are more problematic and noticeable.

23. Dr. Van Impe agreed with counsel that, in a less secure hospital, Mr. K. (E.) would most likely be secluded more often. Mr. K. (E.) would have more freedom in the Beausoleil unit at Waypoint.

24. In response to questions from Mr. Gehl, Dr. Van Impe agreed that Mr. K. (E.) had been at Waypoint since 2021. Mr. Gehl asked what Mr. K. (E.) could do to leave Waypoint. Dr. Van Impe stated that Mr. K. (E.) knows what to do to proceed through the system. The most important thing that he can do is to take his medication. Dr. Van Impe stated that Mr. K. (E.) can control his behaviour when he is taking his medication.

25. Mr. Gehl suggested to Dr. Van Impe that the Hospital staff target Mr. K. (E.). Dr. Van Impe agreed that this was Mr. K. (E.)’s perception. He noted that Mr. K. (E.) had issues with staff at all the hospitals and all the programs that he has been at. The doctor said that the staff treat Mr. K. (E.) like they do any patient but that Mr. K. (E.) sees them as treating him worse than the other patients. This is also a result of his anti-social behaviour, Mr. K. (E.) doesn’t like rules and there are a lot of them in the ORB system.

26. Dr. Van Impe said that he could not overstate the importance for Mr. K. (E.) of taking his medication as this improves his mental state. The month leading up to the review hearing had been the longest stretch of good behaviour for Mr. K. (E.). This was a period of time where he was more consistently taking his medication.

27. Mr. Gehl asked about Mr. K. (E.)’s attendance in vocational training. The doctor noted that he had taken this and enjoyed if but that it had been put on hold as a result of Mr. K. (E.)’s most recent seclusion. Dr. Van Impe felt that it could be started again given the positive month Mr. K. (E.) had just had.

Final Submissions:

28. At the conclusion of the hearing the parties were asked for closing submissions. Ms. Murdock stated that the evidence demonstrated that Mr. K. (E.) has engaged in physical and verbal aggression throughout the past reporting year. He had had four periods of seclusion, was impulsive and demonstrated no insight. She submitted that Mr. K. (E.) needs to demonstrate some stability, take his medication and stay out of seclusion in order to be ready for a transfer. The Hospital was hopeful that Mr. K. (E.) seemed to want to move on and had made recent improvements towards this goal.

29. Mr. K. (E.)’s counsel agreed that his client had begun to make improvements in the past month. He submitted that Mr. K. (E.) wanted to move through the system and his first goal was to get back to the Beausoleil unit.

Findings of the Board:

30. The Board unanimously finds that Mr. K. (E.) continues to pose a significant threat to the safety of the public. In arriving at this determination, the Board considered the divergent position put forward by Mr. Gehl and ultimately accepted the uncontroverted evidence of Dr. Van Impe. The Board agrees with the Hospital that Mr. K. (E.) is not yet ready to transfer to a less secure facility and notes the following excerpt from the Hospital Report:

“At this point in time, I do not consider Mr. K. (E.) appropriate for transfer even internally to Beausoleil, a more privileged program. As an obvious extension of this, I do not believe that the risk he poses to others can be safely managed in a less secure facility. Seclusion has been required multiple times in order to manage Mr. K. (E.)’s behavior. He is frequently unable to control his agitation and can be quite volatile. He has demonstrated extreme threats of violence toward staff and caused our staff to fear for their safety. At his last ORB hearing before arriving at Waypoint Centre in 2023, Southwest Centre made it abundantly clear that they did not feel capable of safely managing the risk posed by Mr. K. (E.) and I would suggest that very little has changed during the course of his admission to our facility.”

31. The above, in tandem with Dr. Van Impe’s testimony that despite the recent improvements, Mr. K. (E.) continues to lack the necessary insight into his mental illness and need for medication, constitutes the basis of the Board’s finding.

32. Therefore, the Board unanimously determines that the necessary and appropriate Disposition required to manage the threat Mr. K. (E.) poses to the safety of the public while still meeting his needs, is a Detention Disposition with no changes to the current conditions.

33. In making this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Van Impe 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, Mr. K. (E.)’s mental condition, their reintegration into society and his other needs.

34. The Board is pleased to learn of Mr. K. (E.)’s recent medical compliance and resulting positive behaviour and is hopeful that the past few weeks is an indication that he is moving forward. The Board wishes Mr. K. (E.) well in continuing this current positive trajectory in the coming year.

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