Re: Robert Jakaj, 2025 CanLII 84090

Re: Robert Jakaj

ORB File No: 6796

Hearing held on: Wednesday, August 6, 2025

Place of Hearing: St. Joseph’s Healthcare Hamilton, West 5th Campus

Pursuant to: Section 672.81(2.1) of the Criminal Code

Before:

Alternate Chairperson: Ms. J. Mills

Members: Dr. J. Kis Dr. S. Swaminath Mr. E. Siebenmorgen Mr. A. Mete

Parties Appearing:

Accused: Robert Jakaj Counsel: Mr. A. Rai

The person in charge of hospital: Counsel: Ms. L. Barney

Attorney-General of Ontario: Counsel: Ms. K. Malkovich

REASONS FOR DECISION

(Dated August 22, 2025)

Introduction

1On June 18, 2015, Robert Jakaj was found not criminally responsible on account of mental disorder (“NCR”) on a charge of arson – damage to property, contrary to the Criminal Code. Mr. Jakaj is subject to a Disposition of the Ontario Review Board (“ORB” or “the Board”) dated October 21, 2024 pursuant to which he is ordered detained at the Forensic Psychiatry Program of St. Joseph's Healthcare Hamilton, West 5th Campus (“SJHCH” or “the Hospital”), subject to various conditions and privileges, up to and including community living in accommodation approved by the person in charge. Notably, the Disposition also requires that he abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant.

2By way of a letter dated July 8, 2025, the Hospital provided Notice to the Board, pursuant to s. 672.56 (2) of the Criminal Code, of an increased restriction on Mr. Jakaj’s liberties (a readmission to the Hospital from the community) that exceeded seven (7) days. On Wednesday, August 6, 2025, a panel of the Board convened in person at the Hospital to inquire into the circumstances and to determine: (a) whether the Hospital’s actions constituted a significant increase in the restrictions upon Mr. Jakaj’s liberties; and (b) if so, whether the increased restrictions were warranted and justified, both at the time that they occurred and for their duration, which continued as of the hearing date.

3Mr. Jakaj did not attend the hearing but was represented by his counsel, Mr. Rai, who advised the panel that he had instructions to proceed in his client’s absence. On agreement of the other parties, Mr. Jakaj was permitted to be absent from his hearing, pursuant to s. 672.10 (a) of the Criminal Code.

4The evidence for the hearing consisted of the Hospital’s Restriction of Liberties (“ROL”) Report dated July 30, 2025, the Hospital Report dated September 16, 2024 (prepared for last year’s annual hearing), and the oral evidence of Dr. O. Lee, a forensic psychiatry resident providing care to Mr. Jakaj under the supervision of Dr. O. Kolawole, Mr. Jakaj’s attending psychiatrist. Dr. Kolawole was also present at the hearing.

Circumstances of the Readmission to the Hospital

5According to the July 30th ROL Report:

Mr. Jakaj had been living in the community at Emmaus Place for approximately one month (May 28, 2025 to June 30, 2025). On June 29, 2025, Mr. Jakaj’s case manager, Mr. McConnell, received an email from Emmaus Place indicating that on the previous evening, Mr. Jakaj was “awake throughout the night on Saturday and hosted three guests in his apartment who left around 2:30 AM. Emmaus staff expressed concerns regarding this behaviour, which they described as ‘unusual’ for Mr. Jakaj.”

Mr. Jakaj was asked to meet with his case manager on June 30, 2025 following his participation in a substance use group psychotherapy session. As documented by Mr. McConnell: “The primary purpose of today’s visit was to review and reinforce Emmaus policies regarding guest sign in/sign out procedures, as well as obtain a urine specimen for drug screening due to Mr. Jakaj’s known history of substance use in social settings.” A point-of-care test on the urine specimen indicated the presence of cocaine, which Mr. Jakaj commonly uses in social settings. Mr. Jakaj continued to deny using cocaine, despite the positive test result.

Upon meeting with Dr. Kolawole, Mr. Jakaj eventually admitted to using cocaine with a friend.

Positions of the Parties

6When canvassed for their initial, without prejudice positions at the start of the hearing, counsel for all parties expressed agreement that the Hospital’s actions in readmitting and subsequently maintaining Mr. Jakaj as an inpatient to the date of the hearing were warranted in the circumstances and represented the least onerous and least restrictive measures available, for the duration of those increased restrictions which continued as of the hearing date. No party suggested that the Disposition itself should be reviewed at the time of the hearing. The parties maintained their respective positions at the conclusion of the evidence.

Findings

7For the following Reasons, the panel accepted the parties’ joint position and found, independently, that the Hospital’s actions in readmitting and subsequently detaining Mr. Jakaj constituted a significant increase in the restrictions upon his liberty. That issue was undisputed. The panel further found that the Hospital’s actions in the circumstances were warranted and represented the least onerous and least restrictive measure available for the management of Mr. Jakaj’s risk to public safety.

Index Offence

8The basic circumstances surrounding the index offence are summarized in the Reasons for Disposition dated November 6, 2024, and are reproduced, with one minor spelling correction, as follows:

"Mr. Jakaj had been living in a rental property owned by his parents. On March 23, 2015, after using a sledgehammer to damage the interior of the residence in which he was living, Mr. Jakaj intentionally set fire two car registered to his father that was parked in the garage attached to the residence. The fire destroyed the vehicle entirely and caused extensive damage to the residence, rendering it uninhabitable. After starting the fire, Mr. Jakaj fled the residence on foot with his dog, making no attempt to report the fire. Mr. Jakaj was subsequently arrested at his parents’ home in Niagara Falls. Total damage to the rental property and his father’s vehicle was estimated at $200,000. In a subsequent interview with investigators, Mr. Jakaj provided an inculpatory statement in which he said that he started the fire as the voices in his head told him to do so. He described the interior damage to the residence caused by the use of his sledgehammer as an effort to ‘redecorate’.”

Background Information

9Mr. Jakaj is now 31 years of age and was 21 at the time of the index offence. He was born in Albania and came to Canada with his family when he was nine years old. His personal history, criminal record, psychiatric history and course under the Board are summarized in last year’s Reasons for Disposition. This information is captured in greater detail in the Hospital Report. As the Hospital Report is in evidence at the hearing, the information need not be summarized for the purpose of these Reasons. The portions that provide helpful context for the issues at this hearing are highlighted below.

10Mr. Jakaj is capable to make treatment decisions and is financially capable. His diagnoses as reported in the ROL Report are:

• schizoaffective disorder;
• cannabis use disorder, in remission in a controlled environment; and
• cocaine use disorder.

11Mr. Jakaj has a significant substance use history. He began using marijuana in Grade 10 and he reported that in the months leading up to the index offence he had been using marijuana on a daily basis. He has also used magic mushrooms and has tried ecstasy. He started using cocaine while on passes into and living in the community since coming under the Board’s authority. Despite having been granted an exemption by the Board from the abstinence clause in his Disposition so that he could use cannabis, Mr. Jakaj’s cocaine use continued and indeed increased in 2020. His cocaine use continued thereafter after the prohibition on cannabis use was reinstated by the Board.

12Mr. Jakaj has experienced a variable course under the ORB’s jurisdiction, particularly in regard to attempts to reintegrate him into the community. As reported in the Hospital Report, he remained an inpatient until he was discharged to his family’s residence in Niagara Falls on August 30, 2016. Over the years, Mr. Jakaj has lived in several different settings, including his parents’ home, an independent market-rent apartment in St. Catharines, an apartment in Hamilton supported through the CMHA Mental Health and Justice Housing Program, and most recently an apartment at Emmaus Place in Hamilton.

13Mr. Jakaj required several readmissions to the Hospital during his course under the Board’s authority (July 2017, October 2017, January 2018, December 2019, August 2020, October 2020, and November 2020). Initially, the readmissions were due to cannabis use in the community but by 2020, they were sparked by Mr. Jakaj’s cocaine consumption. On June 8, 2021, Mr. Jakaj went on an unauthorized leave of absence while on an indirectly supervised pass into the community to attend classes at Niagara College. He was located by police at his apartment on June 11, 2021 and was returned to the Hospital. He acknowledged heavy use of cocaine during the period prior to his arrest.

14Mr. Jakaj remained an inpatient from the end of November of 2020 until his discharge to Emmaus Place on May 13, 2025. He has relapsed into cocaine use, along with cannabis use, on multiple occasions every year from 2021 through 2024. He had been scheduled for discharge to his mother’s home in June of 2024 but relapsed into cocaine use shortly beforehand and remained in the Hospital until his discharge to Emmaus Place in May of this year.

Evidence at the Hearing

15Dr. Lee testified that she has been involved in Mr. Jakaj’s care since March of 2025. She adopted the contents of the ROL Report and elaborated on its contents. By way of review, she observed that following his most recent admission to the Hospital (almost five years in duration), Mr. Jakaj was discharged to Emmaus Place on May 13, 2025. He was readmitted to the Hospital on May 20, due to the consumption of cannabis, for a period that did not trigger a Restriction of Liberties hearing requirement. He was discharged back to Emmaus Place on May 28.

16Dr. Lee testified that when Mr. Jakaj was asked by his case manager to provide a urine sample on June 30 following the report by Emmaus staff (as quoted above from the ROL Report), Mr. Jakaj was guarded and initially asked questions about providing the sample, including the topic of false positive results. As noted in the Report, he was admitted after acknowledging the use of cocaine with a friend.

17Dr. Lee said that following Mr. Jakaj’s hospital admission, slight signs of decompensation were observed. He also has a history of demonstrating underlying irritability following substance use. He was nevertheless engaged and cooperative, as he typically is after his cocaine has cleared. Based upon Mr. Jakaj’s history, he is brought back to the Hospital for assessment immediately when the use of substances is detected.

18Mr. Jakaj’s urine screens continued to test positive for cocaine until July 7, 2025, at which time he started receiving off-unit, and eventually hospital grounds, privileges. Dr. Lee explained that Mr. Jakaj has a history of clearing cocaine from his body quite slowly, so the duration in this case was considered common for him. Dr. Lee testified that as of the hearing date, Mr. Jakaj was exercising indirectly supervised hospital grounds privileges.

19The next privilege level that the treatment team is considering is indirectly supervised community privileges to enable Mr. Jakaj to attend school. He has enrolled at the trades-focused campus of Mohawk College located in Stoney Creek, approximately a 20-minute drive from the Hospital. He has exercised such privileges for educational purposes in the past. Dr. Lee testified that the treatment team would be discussing this within the next week.

20Dr. Lee was asked about Mr. Jakaj’s current psychiatric medications, as last year’s Hospital Report indicated that he was not on any long-acting injectable medications. In response, Dr. Lee updated the panel by stating that Mr. Jakaj is now on long-acting Abilify, received by injection at a dose of 300 mg monthly. He has thus far experienced no breakthrough psychotic symptoms.

21Dr. Lee stated that prior to Mr. Jakaj’s readmission, he was being seen twice weekly by the forensic outpatient team and weekly by “Team 5” at Emmaus Place. He has now lost his tenancy there due to Emmaus’ strict policy concerning substance use. With respect to planning for his future discharge to the community, Dr. Lee stated that his suitability for discharge is currently being completely re-evaluated. The challenge for the treatment team is to work with Mr. Jakaj in developing his trajectory in light of his multiple relapses into substance use in the community, especially cocaine. For example, Mr. Jakaj attended a residential treatment program for addictions in October of 2024, as provided for in his Disposition; however, he relapsed within days of completing it. Dr. Lee used the colloquial expression “back to the drawing board” to summarize the current situation regarding options for community living for Mr. Jakaj. She noted that Mr. Jakaj has mentioned the idea of living again with his parents, as this has been attempted in the past and each parent currently has a home. There has, as yet, been no discussion with his parents as to their openness to this.

22No further evidence was led following Dr. Lee’s testimony.

Analysis and Conclusions

23The panel was unanimous in finding that Mr. Jakaj’s readmission to the Hospital on June 30, 2025 was entirely warranted in the circumstances apparent to the treatment team. Indeed, this was not disputed among the parties. Mr. Jakaj had relapsed into cocaine use within a month of a brief hospital readmission due to cannabis use. He had continued to experience relapses into such use, along with cannabis use, despite being hospitalized for most of the previous five years, during which he had been engaged in various forms of substance abuse treatment and relapse prevention programs, including the completion of a residential treatment program. Mr. Jakaj has a history of becoming very irritable, oppositional to authority figures and disengaging from his treatment team when using cocaine. Given Mr. Jakaj’s history of, at best, equivocal commitment to abstinence, the treatment team had no realistic alternative but to admit him to the Hospital for assessment.

24The panel was further satisfied that Mr. Jakaj’s continued detention in the Hospital to the date of the hearing was also warranted, representing the least onerous, least restrictive approach to the management of his risk. Mr. Jakaj lost his community residence as a consequence of his conduct and had no other place to live. In any event, due to his recurrent and persistent use of cocaine in violation of his Disposition, including during previous periods of community living, Mr. Jakaj’s treatment team was put in the position of having to completely re-evaluate his suitability for community living. The panel accepted Dr. Lee’s evidence in this regard.

25The panel noted that the treatment team moved quickly, once Mr. Jakaj’s drug screens were clear of cocaine, to reinstate his off-unit and hospital grounds privileges. The team has employed an approach that demonstrates a desire to maximize Mr. Jakaj’s liberty and opportunities for community reintegration in a manner that is consistent with public safety.

26Accordingly, the panel concluded that the significantly increased restrictions on Mr. Jakaj’s liberty, flowing from his hospital readmission on June 30, 2025, and his ongoing detention in the Hospital as of the hearing date, were on the evidence entirely warranted, representing the least onerous and least restrictive measures open to the Hospital for the management of his risk.

27In approaching this matter, the panel has considered the evidence through the lens of the factors in s. 672.54 of the Criminal Code.