Re: K.S. (T.)
ORB File No: 8202
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: K.S. (T.) Counsel: Mr. V. Zenobio Person in charge of Hospital: Representative/Counsel: Ms. M. Kraftscik Attorney-General of Ontario: Counsel: Ms. K. Staats
REASONS FOR DISPOSITION
(Dated August 21, 2025)
Overview
K.S. (T.) was found unfit to stand trial on account of mental disorder on December 15, 2022, on charges, contrary to the Criminal Code – pointing a firearm, uttering a threat (x6), failing to comply with a release order, (x3), possessing a weapon dangerous to the public peace and causing a disturbance. K.S. (T.) is currently subject to a disposition of the Ontario Review Board dated September 16, 2024, detaining him at the Waypoint Centre for Mental Health Care, High Secure Provincial Forensic Programs – Awenda Program, Penetanguishene, Ontario. His privileges include hospital and grounds privileges, escorted by staff, and the privilege of living in the community in a 24-hour supervised accommodation, as approved by the person in charge.
At K.S. (T.)’s initial hearing, the Board determined that K.S. (T.) was permanently unfit to stand trial and that he posed a significant risk to public safety. He was detained at CAMH with community living. An early review was initiated to facilitate K.S. (T.)’s discharge to Pineview – a specialized residence in Penetanguishene.
K.S. (T.) was transferred to Pineview on January 17, 2024. However, he was subsequently admitted to Waypoint due to increased risk, prompting notice of increased restrictions on his liberty interests. Further increases in his restrictions were also reported. At the last hearing, the Board found that each of the decisions were justified, and that he continued to pose a significant threat to public safety, and accordingly, his continued detention on the Awenda Program was ordered.
At the outset of the hearing, the Board was informed that the Hospital would not be seeking any change to the current disposition. Counsel for the Attorney General reserved her position, and after hearing the evidence, agreed with the Hospital. Counsel for K.S. (T.) also agreed with the Hospital and a joint position was submitted for the Board’s consideration.
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 K.S. (T.) is fit to stand trial at the time of the hearing pursuant to s. 672.48(1) of the Criminal Code, and, whether he presents a significant threat to the safety of the public, and further, what is the appropriate and necessary disposition in the circumstances for K.S. (T.) according to the factors set out in s. 672.54 of the Criminal Code.
Findings
- After reviewing the evidence and hearing from Dr. Ismail, the Board finds that K.S. (T.) remains unfit to stand trial and continues to pose a significant threat to the safety of the public. His risk is rooted in longstanding cognitive and psychiatric impairments that require ongoing secure supervision, with continued detention on the Awenda Program at Waypoint, which remains both necessary and appropriate at this time, with no changes to his current disposition.
Personal Background
The Hospital Report dated June 5, 2025, was entered as an exhibit at the hearing. The following background information, including the events surrounding the charges before the court, is summarized here as follows.
The allegations include a series of incidents between August 24 and November 4, 2022, all in the context of his cognitive disability and mental illness, when K.S. (T.) was 17 years old. The incidents include graphic, disturbing threats of sexual and physical violence and death against different individuals. Some threats were allegedly made while he pointed a pellet gun at a person he confronted, some with a knife, and some when he had gone onto another person’s home property with a baseball bat, smashing it on the ground while confronting her.
K.S. (T.) is a 19-year-old man who has exhibited substantial developmental delays since early childhood, characterized by impaired judgement, physical aggression, and a constant need for close supervision. At two years old, custody was assigned jointly to his maternal aunt and grandmother, with his aunt holding ultimate decision-making authority. He primarily resided with them, except for a brief interval in 2017 when he temporarily stayed with paternal grandparents due to court-ordered restrictions from contacting his grandmother. His mother struggled significantly with substance abuse, and his father has had no involvement in his upbringing.
While living in the community, in 2022, K.S. (T.) required multiple psychiatric admissions to Waypoint due to aggressive and sexually inappropriate behaviour at home and risky conduct in the community. Despite medication adjustments and repeated discharges with planned follow-up from Catulpa Community Support Services, his behavioural issues persisted, recognizing limited therapeutic benefit from hospitalization and medication, and concluding that he posed a chronic risk.
Following the incidents leading to his 2022 charges, K.S. (T.) and his grandmother expressed a desire for him to return home to her care. However, during the initial hearing, the Board determined from evidence of his persistent aggression that his needs would be best met in a structured and specially supported environment, rather than a return to his grandmother’s home.
A check of the Canadian Police Information Centre database show that K.S. (T.) has no criminal record, however there is a history of involvement in the youth criminal justice system and mental health apprehensions.
Psychiatric Background
K.S. (T.)’s psychiatric diagnoses are Intellectual Developmental Disorder (profound), Bipolar 1 Disorder and Autism Spectrum Disorder. He has been found incapable of making decisions about his medical treatment, and incapable of managing his finances. His aunt is now his substitute decision maker.
K.S. (T.) was initially detained at CAMH in June 2023, specifically on a general forensic unit with enhanced staff support due to his challenging behaviours. Efforts were made to transition him into community housing. Pineview staff faced immediate difficulties managing K.S. (T.)'s aggressive outbursts and unpredictable behaviours, including physical aggression toward both staff and other residents.
Following escalating threats and physical assaults at Pineview, K.S. (T.) was returned to Brébeuf in early February 2024. The treatment team determined that the minimal security environment reinforced his behaviours and was unable to adequately manage his risks. Accordingly, K.S. (T.) was transferred to the Awenda Program within Waypoint’s High Secure Provincial Division, which offered specialized support better suited to his developmental level and aggressive behaviours.
At Awenda, K.S. (T.) initially showed some improvement but soon exhibited the same pattern of intrusive and aggressive behaviours seen previously. He required intensive staffing and was placed in seclusion, due to continuous disruptive behaviours, including aggression toward others and self-harm. Despite these ongoing issues, K.S. (T.) has been somewhat responsive to structured activities and guidance, remaining sociable and engaged with others, without additional seclusions as of June 2024.
Evidence at the Hearing
K.S. (T.)’s current course in hospital is detailed in the Hospital Report. His attending psychiatrist is Dr. P. Ismail. The clinical information is summarized here, along with updated information provided at the hearing.
K.S. (T.) remains unfit due to his intellectual disability, which Dr. Ismail believes will persist indefinitely. He confirmed that K.S. (T.) continues to pose a significant risk to public safety and is appropriately placed within Waypoint’s high-secure Awenda Program.
Dr. Ismail explained that, despite ongoing aggressive behaviours requiring one-to-one staffing whenever outside his room, K.S. (T.)'s behaviours have shown improvement due to Awenda’s specialized structure and qualified staff. The program offers him quality-of-life activities such as swimming and recreational centre visits.
Efforts continue to secure passport funding through Developmental Services Ontario for further recreational activities, though his level of aggression has restricted available options. A major barrier to K.S. (T.)’s discharge is the high level of supervision he requires, as his aggressive and destructive behaviours necessitate constant staffing and structured management.
Dr. Ismail noted improvements in K.S. (T.)’s behaviour compared to his previous placements, crediting the structured environment at Awenda. K.S. (T.)’s family situation was discussed briefly, noting his grandmother's recent passing, the supportive involvement of an aunt serving as his substitute decision maker, and intermittent contact with his mother. Despite ongoing challenges, K.S. (T.) is described as generally happy, enjoying recreational activities, and responsive to staff interventions.
Ms. McDonald also addressed the Board at the hearing. She stated that K.S. (T.) is on a centralized waitlist for specialized group homes, although suitable vacancies are rare. Due to the complexity of his needs, direct individualized funding from the Ministry of Community Services might be sought, but this is currently unavailable due to a funding freeze. Any potential community placement would require substantial resources for dedicated staffing and structured environments capable of managing his challenging behaviours. Notwithstanding, Ms. McDonald stated that concerted efforts continue to be made to find the necessary funding for K.S. (T.)’s specific needs.
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.
The evidence from Dr. Ismail, as well as K.S. (T.)’s clinical presentation as noted in the Hospital Report, supports a continued finding of unfitness. K.S. (T.) is profoundly intellectually challenged – with pervasive impairments in comprehension, reasoning, and communication. We note that K.S. (T.) was unable to answer basic questions about the courtroom process or the roles of key legal actors. His responses to the fitness test questions were consistently “I don’t know,” and he was unable to demonstrate even a rudimentary understanding of the purpose or potential consequences of a trial. On that basis, we are convinced that K.S. (T.) remains unfit to stand trial and will likely continue to be so for the foreseeable future. In other words, he cannot meaningfully engage with counsel, participate in his defence, or grasp the relevance of the proceedings. These impairments are the result of a static and enduring neurodevelopmental disorder, which does not appear to become responsive to any future change.
(b) Significant Threat
Having determined that K.S. (T.) 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.
K.S. (T.) exhibits a long-standing pattern of aggressive, intrusive, and at times sexually inappropriate behaviour. The evidence, including the HCR-20 and clinical risk assessments, demonstrates that K.S. (T.) possesses numerous historical, clinical, and risk management factors associated with violence – including an established pattern of violence beginning in childhood, violent threats involving weapons, graphic and sexually violent ideation, and multiple charges stemming from incidents of physical aggression and verbal threats. His clinical profile is characterized by severe deficits in insight, impulse control, and behavioural regulation. His history includes seclusion events, chemical restraints, and one-to-one staffing to manage his risk. He has expressed reactive threats such as “I’ll throw you in the trash,” and “I’m going to shoot you guys in the head,” often in response to minor frustration or redirection.
Although he is not actively psychotic, his mental disorder significantly interferes with his behaviour and judgement. He remains unable to identify triggers or understand the impact of his actions on others. His outbursts are frequently impulsive, physically intimidating, and at times dangerous. The Structured Assessment of Protective Factors (SAPROF) indicates that K.S. (T.)’s protective factors are almost entirely external – he benefits from structure, constant supervision, and professional care because he lacks internal controls or coping strategies. Without such supports, his risk for violence would be unmanageable.
We accept the opinion of Dr. Ismail that despite modest behavioural improvements in the structured setting of the Awenda Program, his underlying risk factors remain present and unresolved. His aggression, impulsivity, and poor insight are not transient or situational, they are features of a profound neurodevelopmental and psychiatric disorder. Accordingly, the Board finds that K.S. (T.) continues to pose a significant threat to the safety of the public.
(c) Necessary and Appropriate
Having found that K.S. (T.) is both unfit to stand trial and a significant threat to public safety, the Board must determine the least onerous and least restrictive disposition available that adequately protects the public and addresses K.S. (T.)’s treatment and supervision needs. We agree with the joint position – the current disposition remains necessary and appropriate.
K.S. (T.) continues to require a highly structured, secure forensic environment to manage his risk and support his treatment. While he participates in programming and recreational activities and can be cooperative at his baseline, he remains dependent on constant staff prompting and one-to-one supervision to remain safe and regulated. His recent improvements on the Awenda Program appear to be a product of intensive staffing and high structure rather than internal behavioural change. We agree with Dr. Ismail – K.S. (T.) remains at risk of behavioural escalation in response to overstimulation, transition, or frustration, and it is clear that he requires specialized supervision and care.
Community placement is not currently viable. While K.S. (T.) is on a centralized waitlist through Developmental Services Ontario, and individualized funding options have been discussed, no suitable placement has been identified. The resource intensive nature of K.S. (T.)’s care needs, including high levels of supervision, specialized behavioural management, and 24-hour support, make community transition very difficult at this time. We are mindful that discharge planning must remain an active goal and should be revisited in future reviews, but for now, any reduction in supervision or change in placement would be premature and unsafe.
Accordingly, the Board concludes that continued detention on the Awenda Program at Waypoint remains the least onerous and least restrictive disposition that adequately protects public safety, while addressing K.S. (T.)’s ongoing care needs. The current privileges, including the possibility of supervised community living when available and approved by the person in charge, should remain in place to support future planning and clinical progress.
DATED this 21st day of August 2025, at the City of Toronto, in the Toronto Region.
Ms. A. La Viola Legal Member
___________________ Office of the Registrar Ontario Review Board