Re: David W. Birch
ORB File No: 6799
Hearing held on: Thursday, June 19, 2025
Place of hearing: North Bay Regional Health Centre – North Bay Site
Pursuant to: Sections 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. C. Fraser
Members: Dr. R. Kunjukrishnan
Dr. G. Stones
Ms. C. Murray
Mr. A. Bouvier
Parties Appearing:
Accused: David W. Birch
Counsel for Accused: Mr. C. Bracken
The person in charge of hospital: Counsel: Mr. P. Trenker
The person on behalf of hospital: Ms. C. Condie
Attorney General of Ontario: Counsel: Mr. M. Wlodarczyk
REASONS FOR DISPOSITION
(Dated August 15, 2025)
Overview
On July 16, 2015, David Birch was found not criminally responsible (NCR) on Criminal Code charges of causing a disturbance in a public place, resisting or obstructing a peace officer, and failure to comply with a probation order.
Mr. Birch is currently subject to a disposition order of the Ontario Review Board (the Board) dated July 16, 2024, which detains Mr. Birch at the Forensic Programs of the North Bay Regional Health Centre – North Bay Site (the Hospital). Mr. Birch has the outer limit privilege pursuant to this disposition to live in the community in accommodation approved by the person in charge.
On June 19, 2025, this panel of the Board convened a hearing at the Hospital to review Mr. Birch’s disposition pursuant to s. 672.81(1) of the Criminal Code. Mr. Birch was present for the hearing and represented by counsel, Mr. Bracken.
The issues for the Board to decide at the hearing were first whether Mr. Birch remains a significant threat to the safety of the public and, if so, what is the necessary and appropriate disposition for the coming year based on a consideration of the factors in s. 672.54 of the Criminal Code.
At the outset of the hearing, the parties were asked for their positions. Hospital counsel recommended a continuation of the current detention order, unchanged. Crown counsel agreed with the Hospital position. Counsel for Mr. Birch agreed with the Hospital position but wanted the words “or approved person” added to the current paragraph 2(d) of the disposition. When this was raised, the Hospital indicated agreement with the addition of the wording, and Crown counsel indicated a wish to first hear the evidence before taking a position.
For the reasons which follow, the Board finds Mr. Birch is a significant threat to the safety of the public, and the necessary and appropriate disposition for the coming year is the one jointly recommended by the parties with the addition of the words “or an approved person” to paragraph 2(d) of the current disposition.
Index Offences
- The circumstances of the Index Offences are excerpted from last year’s Board Reasons dated July 16, 2024, at paragraph 9 as follows:
On the 16th of February 2015 at 7:00 a.m., the accused, David William BIRCH (DOB 25OCT84) attended at McDonald’s Restaurant located at 520 Algonquin Boulevard East in the city of Timmins, Northeast Region. He was yelling and swearing and banging on the windows of the restaurant. He ran outside through the drive thru (sic) dancing and shouting. He was ignoring the staff’s requests for him to cease his disruptive behaviour. Police were contacted and located Birch at the entrance to the McDonald’s. Police were met by several patrons who voiced their displeasure with Birch ‘s disruptive behaviour. Police approached Birch who seemed oblivious to police presence. He ran away from police and continued yelling and screaming through the parking lot of CDSSAB continuing westbound on foot. Police observed Birch enter the Tim Horton’s located at 400 Algonquin Blvd. East in the City of Timmins Northeast Region. Birch went right into the men’s washroom and was yelling and banging on the walls of the washroom. Police followed Birch in the washroom.
Birch was placed under arrest for causing a disturbance. Birch was not cooperative with police. He became assaultive by trying to kick both Constable McNaughton and Constable Demers. He was taken to the floor for his safety but continued to try to kick at officers all while yelling and screaming and disrupting customers in Tim Horton’s. Constable MCNAUGHTON called for additional officers to control BIRCH who was still not calming down. Constable Rathbone, Constable Chilton, Constable Colbey and Acting Sergeant Dubois all responded to help control Birch. Hobble restraints were used to secure Birch ‘s feet and five officers carried Birch out of the restaurant. Birch continued to scream and flail his body the entire time. Birch was taken to Timmins and District Hospital. He was released unconditionally to the care of Timmins and District Hospital for medical issues. He was issued a summons to answer to these charges.
At the time of these charges, Mr. Birch was subject to a probation order (expires June 2, 2015). One of the conditions of that order was to keep the peace and be of good behaviour. As a result of breaching his Probation Order, he was further charged with one count Fail to Comply with Probation Order.”
Background and Course Since Last Hearing
Mr. Birch’s personal history, psychiatric history, and criminal history are set out in detail in the Hospital Report dated May 14, 2025 (Exhibit 1). It is not necessary to repeat the details at length in these reasons. Some relevant information will be highlighted.
Mr. Birch is 40 years of age and has been under the jurisdiction of the Board for approximately ten years. Mr. Birch has current diagnoses of schizoaffective disorder, substance use disorder including use of cannabis, opioids, stimulants, and hallucinogens, and an unspecified personality disorder. He has a lengthy and serious criminal record predating the index offences. There are several offences of violence on his record. Mr. Birch is treatment capable for psychiatric decisions, and he is capable of managing his finances.
Mr. Birch had a difficult childhood. He observed his father physically abusing his mother, and on one occasion, he was abused himself. Both parents were heavy drinkers. His father lost his job because of his drinking and Mr. Birch’s parents separated when he was a child.
When Mr. Birch was approximately 13, he began to present behavioural challenges including causing considerable damage to his mother’s home. Mr. Birch lived for a brief period with his brother and sister-in-law in British Columbia. Eventually, Mr. Birch was placed in the care of the Children’s Aid Society until he turned 16 years of age.
Mr. Birch has a limited education background. He completed some grade ten credits. There is no history of employment.
Mr. Birch has suffered from a significant history of polysubstance abuse. He began using hash at 13 years of age. By the age of 16 he had used magic mushrooms and had also experimented with alcohol, cannabis, opiates, crack cocaine, speed, methenamines, and amphetamines. His polysubstance abuse has been chronic, and it poses a major challenge for him.
Mr. Birch’s psychiatric history began at the age of 15 when he attempted suicide and was admitted to the hospital for two weeks. The Hospital Report indicates that Mr. Birch has had almost 25 psychiatric admissions to hospital since 2005. Most of these admissions were involuntary. Many of these admissions were precipitated by drug use.
As mentioned, Mr. Birch has an extensive criminal record. He has numerous convictions of violence, including sexual assault, multiple charges of simple assault, three charges of assault causing bodily harm, and numerous breaches of court orders.
In the past year, Mr. Birch has continued to demonstrate poor insight into the adverse effects of cannabis use on his mental health. During an interview with a psychologist for the completion of an updated risk assessment in April 2025, Mr. Birch was asked about the impact of cannabis on his mental health. Mr. Birch responded by indicating he did not think anything too negative happens when he uses cannabis and said that he was “crafty enough” to sneak it onto the unit.
Mr. Birch’s clinical status has fluctuated throughout the course of the reporting period and there was a time in November 2024 when the team was concerned about possible medication non-compliance as his Olanzapine levels were not detected in testing.
Despite relative stability on medication throughout the past ten years as part of the Forensics Program at North Bay, Mr. Birch has not made meaningful progress towards community reintegration. The concern outlined in the Hospital Report is the history of significant disinhibition and aggression which results when Mr. Birch is under the influence of substances, including cannabis. It has been a challenge to progress Mr. Birch through the forensic system.
Mr. Birch’s current privileges are hospital and grounds accompanied by staff and privileges to enter the community of North Bay, accompanied by staff, and hospital and ground privileges, indirectly supervised.
Mr. Birch continues to reside on a rehabilitation unit in the Hospital. His engagement in activities has fluctuated throughout the past year. He participates in cultural programming. He has participated in some recreational programs including healthy lifestyles, volleyball, and easy fit.
Mr. Birch has re-engaged in individual psychotherapy sessions with one of the program’s psychometrists.
Mr. Birch continues to work towards obtaining credits for his GED (five credits required to complete Grade 12).
Evidence at the Hearing
Dr. Gagnon gave the evidence for the Hospital at the hearing. He has been Mr. Birch’s treating psychiatrist for several years. The doctor authored the Hospital Report and adopted its contents in his evidence.
The doctor described Mr. Birch as being “stuck in a loop”. This characterization means that Mr. Birch does well, earns privileges, is in the community, and then uses cannabis and loses his privileges. Dr. Gagnon said this has been “going on forever” and the team cannot seem to get Mr. Birch out of the loop. Mr. Birch erroneously believes that there is no issue with cannabis causing a destabilization in his mental health. Mr. Birch has admitted to Dr. Gagnon and the team that he “microdoses” cannabis, to try and prove that he can use cannabis safely while minimizing the negative effects of the drug on his mental state.
Dr. Gagnon agreed that there have been times when Mr. Birch has used cannabis and hospital staff have not detected a significant change in his mental status. However, Dr. Gagnon noted that in the most recent positive test (within the last couple of weeks), it was obvious to Dr. Gagnon that Mr. Birch was not at his baseline mental status.
The concern expressed by Dr. Gagnon is that using cannabis can cause Mr. Birch to become agitated, aggressive, and violent, especially in higher doses. Mr. Birch becomes quickly emotionally, cognitively, and behaviourally dysregulated.
Dr. Gagnon described the current scenario as akin to self-sabotaging by Mr. Birch, as he cannot break the cycle of gaining privileges and then promptly losing them because of cannabis use.
In other respects, Mr. Birch is stable and acts appropriately. As a rule, Mr. Birch is not a management concern. He takes his medications, and his symptoms are well controlled, but once there is cannabis use the “wheels fall off”, according to Dr. Gagnon. It seems to Dr. Gagnon that Mr. Birch is out to prove a contrary point of view that he can function well without any destabilization even while using cannabis. This view is rejected by the treatment team.
Dr. Gagnon said there is no doubt that but for his continued use of cannabis, Mr. Birch would be living in the community and probably would have been doing so as for as long as five years.
The characterization by Dr. Gagnon is that Mr. Birch completely lacks insight into the significant negative impact of cannabis use on his mental health.
There is a concern that Mr. Birch has become institutionalized and that it is challenging for Mr. Birch to consider a life outside of the Hospital with a greater level of independence. The doctor noted that this is not a legitimate concern as the team would continue to support Mr. Birch in a transition to greater community reintegration.
The doctor described the approved person’s person process at the Hospital for Mr. Birch’s sister in the Timmins area. Social work has contacted the sister but have not yet heard back from her. There is an education component for the approved person. The initial interview is with social work and there is a need for the approved person to understand the terms of the disposition and to immediately notify the hospital and/or police if there is a transgression in the terms of the disposition by Mr. Birch.
The doctor was asked if he felt a transfer to another facility may help with the therapeutic impasse. Dr. Gagnon did not support this as Mr. Birch is not interested in a transfer and it is not Dr. Gagnon’s belief that forcing the issue in this way is beneficial to the patient.
The doctor gave evidence on the most recent positive test which he described as a strong positive (reading 187) indicating Mr. Birch had clearly used cannabis after just regaining his privileges, only to use again.
No further evidence was called at the hearing. In final submissions, the parties maintained their initial positions from the outset of the hearing and Crown counsel indicated his consent to adding the approved person wording in paragraph 2(d) of the current disposition.
Analysis and Conclusion
The Board finds Mr. Birch is a significant threat to the safety of the public based on s. 672.5401 under the Criminal Code, and Winko, and its related authorities.
The Board notes that the parties did not contest a finding of significant threat to the safety of the public. Despite this, the Board makes its own positive finding of significant threat based on the expert evidence of Dr. Gagnon, as supplemented by the Hospital Report.
Mr. Birch suffers from a major mental illness, schizoaffective disorder. When unwell he experiences delusions, hallucinations, disorganized thinking, and bizarre behaviour which includes agitation, aggression, and violence. In such a state, he is a threat to public safety.
The Board notes the long history of non-compliance with treatment and psychiatric follow-up for Mr. Birch. The Board also highlights in its finding of significant threat the serious and long criminal record for Mr. Birch including numerous offences of violence and a conviction for sexual assault.
It is deeply concerning to the Board that Mr. Birch has zero insight into the negative effects of cannabis use on his mental health status. The Board accepts the evidence of Dr. Gagnon that when using substances, including cannabis, Mr. Birch will decompensate rapidly. The Board notes that by his own admission, Mr. Birch has repeatedly breached his disposition by using substances even while an in-patient at the Hospital.
In summary, the Board accepts the identified risk factors and makes a positive finding that Mr. Birch remains a significant threat to the safety of the public.
The necessary and appropriate disposition is the one jointly recommended by the parties which is a continuation of the detention order on the same terms and conditions. The only addition to the current detention order will be the words, “with an approved person” at paragraph 2(d) of the disposition.
The Board was not asked to consider an alternative disposition such as a conditional discharge as this is not necessary and appropriate for Mr. Birch. He remains an in-patient at the Hospital and his long history of breaching his disposition and transgressing into drug use necessitates the Hospital having full control over any residential placement as well as the need to return him to hospital rapidly in the event of any deterioration. These important protective factors cannot be assured on a conditional discharge.
In arriving at our disposition, the Board has considered the paramount factor of public safety, Mr. Birch’s community reintegration, his mental condition, and his other needs, all as required by s. 672.54 of the Criminal Code.
We wish Mr. Birch well in the coming year and hope that there is some insight gained regarding the negative effects of cannabis use, which could lead to greater freedoms and community reintegration.
A disposition will issue accordingly.
DATED this 15th day of August 2025, at the City of Toronto, in the Toronto Region.
Mr. Craig Fraser,
Alternate Chairperson
Office of the Registrar
Ontario Review Board