Re: T. (C.)
ORB File No: 5918
Hearing Held On: Monday, July 14, 2025
Place of Hearing: Waypoint Centre for Mental Health
Pursuant To: Sections 672.48(1) and 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. C. Finley
Members: Dr. J. Ferencz
Dr. B. Bordoff
Ms. A. La Viola
Mr. A. Bouvier
Parties Appearing:
Accused: T. (C.)
Counsel: Mr. V. Zenobio
Person in charge of Hospital: Representative/Counsel: Mr. J. Thomson
Attorney-General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DISPOSITION
(Dated August 21, 2025)
Overview
T. (C.) was found unfit to stand trial on account of mental disorder on July 5, 2011, on a charge of aggravated sexual assault, contrary to the Criminal Code. T. (C.) is currently subject to a disposition of the Ontario Review Board dated July 26, 2024, detaining him at the Waypoint Centre for Mental Health Care – Provincial Forensic Programs Division, Penetanguishene, Ontario. The terms of his detention order include hospital and grounds privileges, escorted by staff. A term that provides for T. (C.) to live in the community in a supervised residential home for special needs individuals has also been in his disposition for a number of years.
At the outset of the hearing, the Board was informed that T. (C.) would not be attending the hearing, and an order excusing him was made further to s. 672.5(10) of the Criminal Code. Counsel for the Hospital, Counsel for the Attorney General and Counsel for T. (C.) all submitted that in their respective views – T. (C.) remains unfit to stand trial, and that he continues to represent a significant threat to the safety of the public. The necessary and appropriate disposition for T. (C.) is to live in the community, in a supervised, residential home for special individuals as approved by the person in charge of Waypoint – essentially ‘no change’ to his current disposition.
Issues
- On July 14, 2025, the Board convened at Waypoint for a hearing further to s. 672.81(1) of the Criminal Code to review the current disposition. The Board was asked to determine whether T. (C.) remained unfit to stand trial at the time of the hearing pursuant to s. 672.48(1) of the Criminal Code, and whether he is a significant threat to public safety, and further, what is the necessary and appropriate disposition in the circumstances for T. (C.) according to the factors set out in s. 672.54 of the Criminal Code.
Findings
- After reviewing the evidence and submissions presented at the time of the hearing, the Board concluded that T. (C.) remains unfit to stand trial (and is likely permanently unfit), and that he continues to represent a risk of serious physical or psychological harm to members of the public. Additional terms in the disposition order that T. (C.) be released from the hospital and placed in appropriate community housing funded by the government in a timely fashion, and that there be a pre-hearing conference within six months of the date of the disposition, at which time the parties will provide updated information on the status of T. (C.)’s release from hospital and placement in housing in accordance with the order.
Personal Background
The Hospital Report dated June 23, 2025, was entered as an exhibit at the hearing. The following background information, including the events surrounding the aggravated sexual assault has been taken from the Hospital Report, summarized here as follows.
The victim of the charge is a resident of the Christian Horizons Group Home. This facility is dedicated to the long-term treatment of persons with developmental challenges. The victim is developmentally delayed. T. (C.) – diagnosed with severe autism – was also a resident at the group home. On June 6, 2011, the victim and T. (C.) returned to their respective rooms in the basement of the group home where he attended the victim’s bedroom, removed his clothing, and inserted one or both hands into the victim’s anus. He then returned to his bedroom and the victim knocked on the door for help. Staff attended the basement and observed the victim sobbing, naked and covered in blood. There was a profuse amount of blood coming from the area of the victim’s anus. T. (C.) was located in his bedroom, fully dressed, his hands were covered with blood and fecal matter. The victim was subsequently transported by ambulance to the hospital.
T. (C.) is now 32 years old. At age 3, T. (C.) was diagnosed with autism and developmental delays, around the same time his biological mother left the family. His father remarried when he was 6 years old, and he lived with two biological and two stepsiblings. Due to increasingly difficult behaviours, including aggression and lack of control in school, he was placed in the care of the Ministry of Children and Community Service in 2001. His communication abilities have remained significantly limited – he is largely non-verbal and communicates by gestures and a few words. Attempts at picture-based communication were intermittently successful, though he generally preferred using signs.
Over the years, he has continued to demonstrate severe developmental and behavioural challenges, including self-injury, aggression, and ritualistic behaviours. These behaviours often emerge when demands are placed on him or when routines are disrupted, though sometimes they occur without clear triggers. He has a strong need for sensory input and engages in repetitive rituals, such as lining up blocks, sometimes dozens of times per day. Both behavioural interventions and medications have provided only limited to moderate improvements. T. (C.) communicates primarily through gestures and purposeful actions, such as leading others by the hand to indicate his needs or signaling when doors should be unlocked. He uses non-verbal cues, like closing his door to decline activities, and often paces when feeling anxious or uncertain. He prefers familiar surroundings, resists changes in his environment, and continues to lack the communication skills necessary to meaningfully engage in legal proceedings or understand the criminal justice system. It is likely that he is permanently unfit to stand trial.
A check of the Canadian Police Information Centre database show that T. (C.) has no criminal record and no other criminal charges other than the events surrounding the aggravated sexual assault as outlined above, which form the present charge before the court.
Psychiatric Background
T. (C.)’s current psychiatric diagnoses are Autism Spectrum Disorder (severe, non-verbal), Unspecified Intellectual Disability and Intellectual Developmental Disorder. He has been found incapable of making decisions about his medical treatment, and incapable of managing his finances. The Office of the Public Guardian and Trustee has been designated as his substitute decision-maker.
During his time with the Christian Horizons Group Home, T. (C.) lived in two different group homes. His first placement was in Georgetown, where he shared a basement with another individual. He was later moved to a second home in Brampton, where he lived alone in a basement suite that included his own bedroom, bathroom, and living room. He joined other residents for meals and occasional interaction in shared spaces on the main level but typically kept to himself, completing daily tasks like eating and cleaning up with minimal difficulty. He did not access the private living areas of other residents. Initially, he participated in community outings, but these were eventually discontinued due to concerns regarding his safety and behavioural management. After the criminal charge, he was detained at CAMH, until his transfer to Waypoint.
During the time he has spent at Waypoint, T. (C.) generally stays in his room for long periods, engaging in solitary activities such as building with blocks or tossing a ball against the wall. This routine appears to be his preference. He enjoys showers but needs verbal prompts to complete hygiene routines. When he leaves his room, he tends to spend only short periods on the unit, often running in the hallway, laughing, or briefly watching television before independently returning to his room and closing the door. This has been his overall routine for many years.
Evidence at the Hearing
T. (C.)’s current course in hospital is detailed in the Hospital Report. His attending psychiatrist is Dr. P. Ismail. The treatment information for this reporting year is summarized here, along with updated information provided at the hearing.
Notably, the Hospital Report emphasizes at the outset of this reporting year that T. (C.) has met the criteria for community living since 2013 (ORB ordered disposition). According to the Director of Access and Flow, he has had the most ‘alternate level of care’ days (over 8 years) while residing at Waypoint for over 11 years.
Consistent with previous years, T. (C.) prefers solitary activities in his room, where he repetitively organizes his environment to maintain consistency and predictability. When in the common areas, he can become intrusive, difficult to redirect, and occasionally aggressive, demonstrated by incidents of grabbing at staff members’ hands and wrists, most recently documented on March 30, 2025.
T. (C.) remains non-verbal and continues to communicate primarily through gestures, purposeful movements, and occasional vocalizations that reflect his emotional or physical state. While his eye contact is generally limited, he maintains brief periods of eye contact when attempting to express needs or responding to simple instructions. Without regular prompting and assistance from staff, he frequently appears disheveled and occasionally experiences episodes of urinary incontinence. Notably, in July 2024, significant agitation and aggression were observed due to dental pain, prompting severe behavioural responses such as screaming, striking walls, and resistance to care, though these concerns were eventually addressed through staff intervention and medication.
Compliance with blood work associated with his dosing of clozapine continues to be an issue, however the administration of PRN medication beforehand has been helpful. A Crisis Prevention Plan remains necessary to ensure the safety of others on the unit. Even though the frequency of such problematic behaviours has decreased over the past year, the treatment team credits this improvement mainly to his self-imposed isolation and the considerable staff support provided at Waypoint.
At the outset of the hearing, Dr. Ismail stated that on the issue of whether T. (C.) is fit to stand trial that T. (C.)’s ongoing fitness assessment, conducted last Friday, confirmed he remains unfit to stand trial due to his severe intellectual disability, and nonverbal autism. The probability that he will remain permanently unfit moving forward is palpable.
Dr. Ismail focused his testimony and addressed the seriousness of the issue surrounding of T. (C.)’s continuing lack of community placement. There is no new information regarding the availability of placement, and the treatment team continues to hold the position that he requires specialized support and supervision available at a facility like Kerry’s Place. Based on past experience, securing such a placement often takes considerable time. Efforts have been made to secure alternative placements beyond Kerry’s Place, but no viable options have emerged. The Ministry, through Developmental Services Ontario (DSO) funding has specifically designated Kerry’s Place as the appropriate agency to manage T. (C.)’s care in the community. Unfortunately, there remains a freeze on funding. Despite regular accountability meetings with community partners and the Ministry responsible, funding availability dictates the timeline for any new facility. Kerry’s Place aims to replicate the supportive environment provided by Waypoint, but this requires substantial financial resources.
The treatment team maintains that T. (C.)’s quality of life would significantly improve if he were placed in appropriate community accommodation with specialized support. Currently, he spends considerable time isolated in his room by choice, despite ongoing efforts to engage him in community-oriented activities within the hospital grounds. While a community setting could offer him increased space and potential daily activity opportunities, it remains uncertain whether he would take advantage of these due to his preference for isolation and restrictive behaviours. Although it is believed that community placement would generally offer greater opportunities, his severe autism spectrum disorder makes it difficult to predict whether such opportunities would be beneficially utilized.
After the Board made inquires into what government response has been on the community placemen issue, the parties submitted that no direct communication or discussions have occurred between the Ministry of the Attorney General and the Ministry of Children and Community Services regarding specific funding for T. (C.)’s placement. Although there is recognition that something must be done to improve his situation, similar past cases required court intervention through Charter challenges to prompt government action. The Board was urged to exercise its authority to issue a disposition requiring the responsible Ministry to secure funding and housing. All parties acknowledged the complexities involved, noting the Ministry of Children and Community Services holds primary responsibility, and the parties also agreed that additional time might be needed to clarify actions already taken by government agencies.
Analysis and Conclusion
(a) Fitness to Stand Trial
The Board’s obligation under s. 672.48(1) of the Criminal Code is to determine whether the accused remains unfit to stand trial as of the day of the hearing. Most recently, the Supreme Court of Canada released its decision in R. v. Bharwani, 2025 SCC 26, confirming the governing legal standard of the definition of fitness to stand trial under s. 2 of the Criminal Code. In addition to the fitness test, the Court stated that fitness to stand trial requires the accused to have a reality-based understanding of the proceedings and the ability to communicate decisions relevant to their defence, without significant interference from psychiatric symptoms. Importantly, the Court rejected the notion that fitness depends on making rational decisions or those aligned with an accused’s best interests. The focus is whether the accused can meaningfully participate in their trial, fitness must be assessed in light of the accused’s ability to meaningfully participate, not merely to understand or repeat information. It also highlighted that fitness depends on whether those decisions are made, with some tether to reality and free from interference by psychiatric symptoms. [at paras. 6, 50 and 77]
Applying the principles as articulated, the facts before us paint a picture that requires specific attention. T. (C.) is now approximately 32 years old. Since the age of 3, T. (C.) was diagnosed with autism and developmental delays. He has since been, and continues to be, diagnosed with Autism Spectrum Disorder (severe, non-verbal), Unspecified Intellectual Disability and Intellectual Developmental Disorder. Based on the evidence at the hearing, we are convinced that T. (C.) exhibits profound cognitive and communicative deficits that render him unfit to stand trial (likely permanently so). His severe impairments prevent him from comprehending even basic aspects of his daily life, let alone the nuances of the judicial process, including the nature and purpose of the charges against him or the possible consequences of a trial. Furthermore, his inability to communicate verbally or interact effectively makes meaningful collaboration with legal counsel impossible, thereby precluding active participation in his defence.
Moreover, we agree with Dr. Ismail’s treatment assessment. T. (C.) does not demonstrate an ability to participate or communicate meaningfully as outlined in the criteria under s. 2 of the Criminal Code and more recently interpreted and articulated in the SCC Bharwani decision. In other words, because T. (C.)’s mental state is characterized as ‘severe and non-verbal’ on the Spectrum, it fundamentally follows that he is unable to understand the relevant information, or to rationally communicate the essential responses that would constitute intelligible decision-making, which are the necessary elements to a finding of fitness to stand trial. The evidence shows that his significant cognitive impairments do not meet the legal test as set out, and that based on T. (C.)’s mental condition, when scrutinized as a whole, he has absolutely no understanding of his legal situation or the impact his mental state has on his ability to make realistic decisions about his criminal charges – he is simply incapable of doing so. On that basis, applying the fulsome ‘fitness test’ articulated in the SCC decision, we find that T. (C.) continues to be unfit to stand trial, and it is more than likely that he will continue to be unfit to stand trial notwithstanding any further fitness assessments in future.
(b) Significant Threat
Having determined that T. (C.) remains unfit to stand trial at this time, and in reviewing a disposition under s. 672.48(1) of the Criminal Code, we must now turn to the factors outlined in s. 672.54 of the Criminal Code – taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. And for those purposes, we are mindful that a significant threat means a risk of serious physical or psychological harm to members of the public, resulting from conduct that is criminal in nature but not necessarily violent.
We agree with Dr. Ismail’s risk assessment, T. (C.) does not understand the relationship between his behaviour and its effects on others. He has no awareness of how his actions negatively impact others or how certain behaviours exacerbate his condition, nor can he appreciate the potential benefits of treatment. Considering all the evidence, we find there is ample indication that T. (C.) is a significant threat to the safety of the public, and the evidence presented to that effect was substantial at the time of the hearing. In other words, there was cogent evidence that suggests that T. (C.) has no understanding of how his behaviours impact others, even though he appears to be optimally treated. T. (C.) continues to exhibit significant deficits in insight regarding his mental disorder and associated risk factors, showing no understanding of his diagnosis, symptoms, or the importance of treatment, nor recognizing the triggers or contexts linked to past aggressive incidents. Despite ongoing treatment support, his violent thoughts and behaviours persist, though somewhat mitigated by his structured environment. He engages in problematic and intrusive physical behaviours, including grabbing at staff members and periodically fixating on female personnel, necessitating proactive safety measures such as meal service in his room and a comprehensive Crisis Prevention Plan. His treatment team anticipates no forthcoming improvements regarding his insight or cognitive capabilities. His behavioural instability is a result of his overall sensitivity to environmental stressors like noise, touch, or routine disruptions, underscoring the necessity of maintaining a highly controlled setting to manage risk effectively.
We find that his profound lack of insight into his own circumstances further underscores his unfitness to stand trial, and the threat he poses to public safety. No evidence was presented that his mental state has changed accordingly as a result of any other viable treatment options, and on that basis, we conclude that T. (C.) remains a significant threat to the safety of the public, and as required, a disposition must be made.
(c) Necessary and Appropriate
In terms of s. 672.81(1) of the Criminal Code, in reviewing the disposition in this particular case, the parties urged the Board to consider and apply the reasoning of the Court of Appeal decision in Shortt (Re) 2020 ONCA 651. We have done so, and we echo the Court’s words that “this is an exceptional case” – for essentially the same reasons. It has been over 11 years that the Board has determined that T. (C.) is capable of living in the community at the discretion of the person in charge of the hospital. We agree that T. (C.)’s quality of life would improve significantly in the appropriate accommodation, where he would receive specialized support and supervision commensurate with his needs. Over the review years, this term in the disposition has been in accordance with the hospital’s recommendations. The staff at Waypoint have made considerable efforts to secure the appropriate residential setting, however, there has been considerable difficulty in determining when one may be made available. The treatment team continues to support a community placement with specialized support and supervision, but no viable accommodations have been secured. The efforts made with Kerry’s Place and the Blossom Group have been extensive, but to no avail. Specifically, the notes in the Hospital Report show the level of effort and concern on behalf of the treatment team – numerous discussions have taken place between the Director of Services and Supports at Kerry’s Place and the Waypoint staff, documented from 2024 up to May 1, 2025. The issue appears to be the Ministry’s decision to freeze all funding. The Board was prompted to look at the Shortt (Re) decision to address the ongoing concerns for T. (C.).
In determining the appropriate disposition, the Board must consider the least restrictive and least onerous disposition that allows the hospital to manage T. (C.)’s risk to the public. In this regard, we agree that Waypoint is not the appropriate setting for T. (C.). We find that what T. (C.) requires is specialized community living with the necessary supports and the appropriate level of supervision to ensure that his quality of life is improved outside that which he has in the Awenda program at Waypoint. We again echo the Court’s ruling in the Shortt (Re) decision “…the government must respond immediately and meaningfully to this pressing need for implementation. The government’s role at the next annual review hearing must be to identify precise implementation, not to contest it.”
In considering all the circumstances, we conclude that T. (C.) must remain subject to a Detention Order at Waypoint in the interim, until such time that his integration to Kerry’s Place (or similar community housing) is facilitated. Accordingly, additional terms in the disposition orders that T. (C.) be released from the hospital and placed in appropriate community housing funded by the government in a timely fashion. Further, the Board orders that there be a pre-hearing conference within six months of the date of the disposition, at which time the parties will provide updated information on the status of T. (C.)’s release from hospital and placement in housing in accordance with the order. All of which is the least onerous and least restrictive outcome at this time, and which also takes into account his continued risk to the safety of the public, while also taking into account all T. (C.)’s other needs.
DATED this 21st day of August 2025, at the City of Toronto, in the Toronto Region.
A. La Viola
Legal Member
Office of the Registrar
Ontario Review Board