Re: K. (D.)
ORB File No: 6887
Hearing held on: June 23, 2025
Place of hearing: Thunder Bay Regional Hospital
Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Goldenberg
Members: Dr. P. Prendergast Dr. Sandy Wiseman Hon. Emile Kruzick Mr. Stephen Duffy
Parties Appearing:
Accused: K. (D.) Counsel: Mr. U. Agostino
The Person in charge of Hospital: Representative: Ms. M. Davidson
Attorney General of Ontario: Counsel: Mr. S. Down
REASONS FOR DISPOSITION
(Dated August 21, 2025)
Introduction
On January 6, 2016, K. (D.) was found unfit to stand trial on two sets of charges: one count sexual assault alleged to have taken place when he was 17 years old (and thus subject to the Youth Criminal Justice Act); and sexual assault (x2), assault (x2), sexual interference, invitation to sexual touching, and failure to attend court. K. (D.) is currently subject to a Detention Order dated June 17,2024, in which he was found to be unfit to stand trial and was ordered to be detained in the Secure Forensic Unit of the Thunder Bay Regional Health Sciences Centre (“TBRHSC”) with privileges up to living in the province of Ontario in 24-hour supervised accommodation approved by the person in charge.
On Monday, June 23, 2025, the Ontario Review Board convened a hearing and conducted the annual review of K. (D.)’s disposition.
Position of the Parties
At the outset of the hearing, the parties were canvassed as to their recommendations to the Board.
Ms. Davidson appeared as the hospital’s representative. She advised of the hospital’s position that K. (D.) is unfit to stand trial and that K. (D.), in addition, remains a significant threat to public safety. The hospital is recommending that there be no change to the current disposition.
Mr. Down appeared for the Attorney General. He supported the hospital’s recommendation.
Mr. Agostino appeared for K. (D.). Mr. Agostino accepts that his client is unfit to stand trial. Mr. Agostino had no instructions or no position to take with respect to the issue of the necessary and appropriate disposition.
Outstanding Charges
- The allegations giving rise to the outstanding charges are set out in last year’s reasons for disposition as follows:
“In June 2009, when K. (D.) was 17 years old, he was charged with sexual assault. K. (D.) and his mother were visiting a northern First Nation. A resident there found his three-year-old son in an abandoned house with K. (D.) as follows:
“…he observed [his son] in a bent over forward position with his feet off the floor, being held over a black leather sofa, with his pants pulled down around his ankles and his shirt being pulled up around his shoulders by a much larger male standing behind him with his pants down and his erect penis exposed.”
K. (D.) was released on an undertaking that included a condition that he is not be alone with anyone under 15 years of age.
In June 2012, when K. (D.) was 20 years old, he was charged with the remaining offences (sexual assault x 2, assault x 2, sexual interference, invitation to sexual touching and fail to attend court) arising from complaints made by a group of children at another First Nation (again, not where K. (D.) resided). K. (D.) is alleged to have punched a male youth in the groin and then pulled his genitals. He is alleged to have punched another male youth in the groin. He is also alleged to have attempted to pull a female youth into a bathroom and later offered her money to “suck his balls.” He was also charged with failing to comply with his earlier undertaking – he had not attended court as required on the youth charge.”
Evidence at Hearing
The Board admitted into evidence the Hospital Report dated May 27, 2025. The Hospital Report provides a great deal of information concerning K. (D.)’s personal history, his mental health history, details of the outstanding charges, and K. (D.)’s course in hospital subsequent to the date of the initial finding of unfitness.
As the Hospital Report was made an exhibit in this hearing, it is not necessary to reproduce the information contained in the Hospital Report in these reasons.
We do note, however, the diagnoses, mainly intellectual disability, moderate; pedophilic disorder.
In addition to the documentary evidence, the Board heard from Dr. Schubert. Dr. Schubert noted that his patient is currently 33 years old. He has an Indigenous background and is from the Shoal Lake First Nation.
K. (D.) has been under Dr. Schubert’s care for the last nine years. Dr. Schubert noted that this past year “mirrors” the previous year and years.
K. (D.) requires considerable help with all of his activities of daily living. He needs help getting dressed. He needs help looking after his personal hygiene.
K. (D.) suffers from several paraphilias. The hospital tried K. (D.) on two different medications to try and deal with his pedophilic tendencies. Unfortunately, both medications had severe side effects and the doctor stopped treating K. (D.) with those medications.
Dr. Schubert noted that K. (D.) experienced brain malformations from birth. He also suffers from cerebral palsy. K. (D.) also has a history of experiencing seizures.
Dr. Schubert also noted that his patient, with some regularity, has impulsive outbursts and acts in a threatening manner. In addition, K. (D.) on occasion acts out inappropriately on the unit. He engages in public masturbation and unwanted touching of other individuals on the unit. This year, there was an inappropriate incident when K. (D.) engaged in unwanted fondling of a nurse’s hair. This led to other patients on the unit being very upset with K. (D.). The doctor also noted a history of “posturing” such as raising a fist towards other people.
The doctor noted that there were a number of positive sides concerning K. (D.). He can be in good spirits for a period of time. He likes to dance and sing on the unit. He also participates in Indigenous programming such as attending smudges.
K. (D.) also attends at The Hub, generally with a staff member. The doctor made the point that public safety requires K. (D.) to be accompanied whenever he leaves the unit. Dr. Schubert also noted that his patient is always accompanied by a staff person whenever K. (D.) goes into the community. The doctor noted one incident when K. (D.) jumped out of an automobile on the way into the community.
Dr. Schubert noted that his patient has little or no insight. On some occasions, he will show a degree of remorse with respect to his inappropriate behaviour.
The doctor noted that attempts have been made to educate K. (D.) concerning fitness. K. (D.) attended for one or two meetings but refused to attend any further meetings.
Dr. Schubert last assessed K. (D.) for fitness approximately one month ago. The doctor had no hesitation in concluding that K. (D.) could not participate in any meaningful manner in any trial.
The doctor noted that K. (D.) is on a waiting list for housing. The doctor further noted that K. (D.) has been on the DSO waiting list since 2019.
In response to questions from Mr. Agostino, Dr. Schubert repeated his opinion that K. (D.) is permanently unfit to stand trial. The doctor advised that there are no other options or programs that could render K. (D.) fit to stand trial.
Finally, Dr. Schubert noted his opinion that K. (D.)’s quality of life in hospital is quite good. The doctor noted that K. (D.) goes out of the hospital most days of the week.
There was no further evidence heard at this hearing.
Final Submissions
Ms. Davidson asked the Board to accept the doctor’s evidence that K. (D.) is unfit to stand trial and also to find that K. (D.) is currently a significant threat to public safety, and accordingly, the hospital does not seek any recommendation to be given by the Board for a stay of proceedings of these charges.
Mr. Down concurred with the hospital’s position.
Mr. Agostino agrees that his client is unfit to stand trial and repeated that he has no instructions or position to take with respect to the necessary and appropriate disposition.
Findings of the Board
The Board accepts without reservation the evidence given by Dr. Schubert and the evidence contained in the Hospital Report. We accept that K. (D.) is unfit to stand trial. We accept that K. (D.) would not understand the nature of any court proceedings, nor would he understand the possible consequences of court proceedings, nor does he have the ability to communicate with his counsel appropriately. We accept that K. (D.) is unfit to stand trial. (R. v. Bharwani, 2023 ONCA 203)
The panel also accepts the evidence that K. (D.) is a significant threat to public safety and for that reason we are unable to make any recommendation to the court for a stay of these proceedings.
Mr. Agostino had asked the doctor a number of questions about potentially testing K. (D.) on indirectly supervised community passes. Dr. Schubert repeated his position that public safety would be compromised with any granting of indirectly supervised passes. We note that the current disposition and presumably previous dispositions did not permit the hospital to grant any indirectly supervised community passes. This panel accepts the doctor’s opinion and will not include any form of indirectly supervised passes.
In reaching our disposition, the Board has taken into consideration the safety of the public, K. (D.)’s mental condition, his other needs, and his potential reintegration into society.
DATED this 21st day of August 2025, at the City of Toronto, in the Toronto Region.
J. Goldenberg
Alternate Chair
Office of the Registrar
Ontario Review Board