Re: K. (B.H.)
ORB File No: 8780
Hearing held on: Wednesday July 30, 2025
Place of hearing: Royal Ottawa Mental Health Centre (Via Zoom Audio-Visual Technology)
Pursuant to: Section 672.47(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. D. Sandor
Members: Dr. S. Lessard
Ms. M. Bridger
Mr. A. Bouvier
Parties Appearing:
Accused: K. (B.H.)
Counsel: Mr. C. Nahum
The Person in charge of Hospital: Representative: Dr. D. Bourget
Attorney General of Ontario: Counsel: Ms. M. Dufort
REASONS FOR DISPOSITION
(Dated September 8, 2025)
Introduction
1On May 7, 2025, K. (B.H.) was found not criminally responsible on account of mental disorder on charges of sexual assault (x2) and commit indecent act in a public place contrary to the provisions of the Criminal Code of Canada. The court did not order a disposition following the finding and referred the matter to the Ontario Review Board.
2On July 30, 2025, a panel of the Ontario Review Board convened a hearing at the Royal Ottawa Mental Health Centre (hereinafter referred to as “the Hospital”) to conduct K. (B.H.)’s initial hearing. The hearing was conducted in French and took place via Zoom Audio-visual Technology on the consent of all parties. K. (B.H.) was present from where he continued, unfortunately, to be held at the Ottawa Carleton Detention Centre (the “OCDC”). To the date of the hearing, K. (B.H.) had been held at OCDC for a period approaching three months. K. (B.H.) was assisted by his counsel who also attended via Zoom.
3The record for the hearing included the Notice of Hearing and a pre-hearing conference report dated June 26, 2025. That pre-hearing conference report explained that K. (B.H.)’s progress out of the OCDC and into an appropriate setting suited to the finding made by the court was the subject of ongoing delay associated with a bed crisis at the Hospital. In light of this, the pre-hearing conference report explains that the Board opened this date for K. (B.H.)’s initial hearing.
4Other documents also formed part of the record. These included K. (B.H.)’s criminal record, his charge sheets (four in total), the Crown Brief synopsis, the transcript of K. (B.H.)’s NCR hearing, the Information and an “NCR Report” dated April 23, 2025. On the consent of all parties a Hospital Report dated July 9, 2025, was admitted into evidence as Exhibit 1. A Victim Impact Statement authored by the victim M. (R.), dated July 28, 2025, was admitted into evidence as Exhibit 2.
5The parties were canvassed for initial positions. Dr. Bourget, K. (B.H.)’s treating psychiatrist spoke for the Hospital. She expressed the position that K. (B.H.) continued to represent a significant threat to the safety of the public as that term is defined in section 672.5401 of the Criminal Code and as it has been explained by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. She also expressed the position that it was necessary and appropriate, having regard to the objectives set out in section 672.54 of the Criminal Code, for K. (B.H.) to be the subject of a detention disposition.
6Both the representative of the Attorney General and counsel for K. (B.H.) agreed with the Hospital’s position, subject to questions, both expressing concerns over the length of time K. (B.H.) has been held at the OCDC since his NCR finding. That joint submission was maintained through to the end of the hearing.
7For the following reasons, the Board accepts the joint submission and finds that K. (B.H.) continues to represent a significant threat to the safety of the public. It has further concluded that the necessary and appropriate disposition, having regard to the primary objective of assuring the safety of the public, together with the other objectives set out in section 672.54 of the Criminal Code, and applying the principle of minimal intrusion, is that of a detention order as requested. In light of the length of time that K. (B.H.) has been in custody at the OCDC and having regard to his mental health and other needs, the Board has varied from standard language often used in dispositions that specify the unit at which K. (B.H.) would be detained and has simply ordered that he be detained “at the Royal Ottawa Mental Health Centre.” This has been done so as to afford the Hospital a functional flexibility that is both mindful of the primary objective of ensuring the safety of the public and the reality that K. (B.H.)’s continued stay at the OCDC is inconsistent with the other objectives set out in section 672.54 of the Criminal Code.
Evidence at the hearing
8The evidence for the hearing came from the Hospital Report mentioned and the live testimony offered by Dr. Bourget.
9Turning first to the Hospital Report, it includes several details regarding K. (B.H.), his history of struggle with mental illness, his history of struggles with decompensating substance use and his history of difficulties with the criminal justice system. It also provides a summary of the index offences as outlined and accepted over the course of K. (B.H.)’s NCR hearing:
Indecent Act (December 8, 2024)
On December 8th, 2024, the accused K. (B.H.) while in front of the front door of 256 King Edward Blvd (Shepherds of Good Hope Shelter), was holding his penis out of his pants and in his right hand and masturbating. The accused stated to a Shepherds of good hope female Security guard, " See I am masturbating".
Indecent Act (December 11, 2024)
On December 11 2024 at approximately 8:15 a.m. at the Rideau Station OC Transpo LRT station, located at 117 Rideau St. in the City of Ottawa, the Accused, K. (B.H.) committed an Indecent Act by exposing his penis to five people and while doing so used his hand to masturbate himself.
The incident was reported to OC Transpo Special Constables by the victim, M. (M.), by phone.
The CCTV showed the Accused standing in the entrance lobby, pulling down his pants and showing his anus, through glass, to an elevator of 5 people. As the same 5 people exited, the Accused stood in their way then turned around and showed his penis to them, then masturbating it with his hand, laughing and smiling.
Sexual Assault (Count 1 - December 12, 2024)
On Thursday December 12, 2024 at 2141hrs, Police were called to the Tim Hortons located at 3691 Strandherd Drive in the City of Ottawa. When police arrived on scene they spoke with the complainant. The complainant explained that she was sitting in the establishment studying when the accused walked up and sat down at her table. She felt uncomfortable so got up and moved tables. The accused continued to watch her as she was seated elsewhere. After a couple of minutes, the complainant decided to leave. The accused followed her to her car and began pounding on the window. The complainant had to honk her horn in order to get the attention of bystanders before the accused backed away. The accused walked to the entrance of the Tim Hortons and lifted up his shirt, showing his bare stomach. He then unbuckled his pants, removed his genitals and began rubbing himself while staring at the complainant.
The accused was located by police in the restaurant with his pants around his ankles. The accused was arrested for indecent acts. To note: KABASELE was talking nonsense/gibberish and continued to yell incoherently during my transport. The behaviours I observed were consistent with a person suffering from a mental health disorder.
Sexual Assault (count 2 – January 5, 2025)
On the 5th of January, 2025, at approximately 6:10 P.M. in the City of Ottawa, the accused, K. (B.H.), was inside the OC Transpo bus station at 51 Rideau Street. The accused roamed the station until he followed the victim, G.(S.), inside an elevator where the accused stood in the entrance way of the elevator with the intent to affect the freedom of movement. The victim at this time felt trapped as the accused was blocking the only exit. The accused then sexually assaulted the victim by touching her leg and the inside of her thigh and making sexual based comments to the victim stating, "you have a lot of meat", and "you have a sexy body." The accused then placed his hand down the front of his pants and groped his genitals. The victim feared for her safety that the accused would continue his attacks against her. The accused backed away and the victim fled the elevator and observed the accused exposing his genitals and putting them into the face of an unknown victim, who pushed him away. The victim then called 911, at which point Ottawa Police later arrived on scene.
10K. (B.H.) is 37 years old and originates from the Democratic Republic of Congo. He arrived in Canada in 2007 to reconnect with his father and several half-siblings. K. (B.H.) has not yet obtained his secondary school diploma or its equivalent and has struggled academically, particularly in maths and sciences. He married in 2014 and has a daughter that was born in 2017. He and his wife separated the year of his daughter’s birth as stresses associated with K. (B.H.)’s major mental illness strained the marriage.
11K. (B.H.) has no status in Canada and faces the prospect of deportation back to the DRC. He has no health insurance in Ontario and no source of coverage for his medications. He has however been the recipient of social insurance in Ontario and obtained a work permit in 2021. He has an immigration lawyer to assist him with the difficulties associated with his status in Canada.
12K. (B.H.)’s first reported episode of major mental illness occurred in 2017 around the time of the birth of his daughter. Following a month-long admission to l’Institut Philippe-Pinel de Montréal, he was diagnosed with bipolar disorder. Other admissions to hospital followed, sometimes in the context of substance and alcohol consumption as was the case in September 2024 when he was admitted to the Royal Ottawa Hospital on a form 1.
13K. (B.H.)’s history of substance abuse in the context of his major mental illness is concerning. Preferred substances include alcohol, crack, cocaine, fentanyl, cannabis and speed. His substance-use is prolonged and dates back prior to his marriage. He has a criminal record that includes convictions for fraud, utter forged document, theft, possession of substances, failing to comply with probation orders and undertakings, being unlawfully in a dwelling house, and sexual assault (in addition to those that inform the index offences). His current diagnoses are:
Schizo-affective disorder – pharmacologically controlled
Cannabis and substance use disorder – in partial remission in a controlled environment but with high risk of relapse.
14The Hospital Report explains that K. (B.H.) has responded well to anti-psychotic medications since being found not criminally responsible. He is developing his insight in terms of his major mental illness and ongoing need for medications. He continues to experience auditory hallucinations and some paranoia though these symptoms of his major mental illness are not as pronounced as they were at the time of the commission of the index offences. He does not display delusions of grandeur or persecutory delusions. He denies any suicidal ideations or homicidal thoughts. The residual auditory hallucinations however seem to be chronic and perpetually present.
15K. (B.H.) is described as appreciating his need for medications. He indicates that he has always been treatment compliant. He is able to express the negative impact his use of substances has on his major mental illness, but the Hospital Report also records incidents where he has indicated to previous mental health supports and psychiatrists that he would tell them “what they want to hear” all while continuing to use the substances noted above. For this reason, his insight as to the impact of substances on his major mental illness is described as “weak”. His judgment is limited. Regarding sexual concerns, Mr. Kabesele rejects any notion that he committed sexual assaults or indecent acts.
16The Hospital Report includes a Risk Assessment beginning at page 16. The contents and methodology of the risk assessment were not challenged over the course of this hearing. It concludes that K. (B.H.) represents a high risk to the safety of the public. In addition to historic factors already mentioned, it informs this conclusion with a listing of several clinical and risk management factors that include the fact that K. (B.H.) has weak insight into the impact of substances on his major mental illness, continues to experience auditory hallucinations in spite of compliance with treatment recommendations, has displayed instability while in the OCDC, has historic problems with treatment compliance and maintenance of transparency and a reliable therapeutic alliance with care providers, and has no stable housing at this point even if he were to be released from the OCDC. The Hospital Report highlights K. (B.H.)’s limited ability to manage stresses and function independently and explains that next steps will include exploring support from his family, forming strong clinical alliances between him and the treatment team, correlating services in the community with the Canadian Mental Health Association, and locating appropriate housing that is likely to be supervised. K. (B.H.)’s difficulties managing stresses has been recently manifested in a fight that he got into at OCDC with another inmate. This impulsive involvement in violence represents a concern associated both with K. (B.H.)’s insight and ongoing difficulties managing his behaviours in the context of major mental illness, and with the reality that OCDC is no place for an individual that has been found NCR and has been transitioned legally from the guilty/not-guilty dichotomy and into the realm of purposeful inquiry into principles associated with significant threat to the safety of the public and the need to ensure that the NCR individual’s mental health and other needs, including the ultimate objective of reintegration into the community, are met.
17Over the course of her evidence, Dr. Bourget adopted the contents of the Hospital Report and provided an update as to the delay in finding a bed for K. (B.H.) at the Hospital. She described the chronic nature of the bed shortage and the discussions the treatment team has had to locate options that suited K. (B.H.)’s current level of stability within the confines of the objectives set out in section 672.54 of the Criminal Code. It was apparent from her testimony that the entire team was keenly aware of the impropriety of K. (B.H.) remaining at OCDC and of the importance to explore accommodations that would be appropriate for him while not compromising the primary objective of ensuring the safety of the public. This included the possibility of moving K. (B.H.) from the OCDC to a step-down bed or considering his transfer to Brockville, though this was seen as a less desirable option given K. (B.H.)’s need to receive treatment in the French language. She explained that, if there was flexibility in the disposition being sought, the Hospital could consider moving K. (B.H.) to a transitional bed or a bed available at locations such as Wymering Manor or LeBreton that would provide an appropriate level of supervision, supplemented with the involvement of the treatment team so as to manage his pathology and major mental illness.
18In making these comments, Dr. Bourget recognized the difficulty posed by K. (B.H.)’s historic use of substances and past examples where he admitted to deceiving mental health professionals regarding the extent of his substance use while medicated.
19Before concluding a review of the evidence, it is important to note the impact of the index offences on the victim, M. (R.) Exhibit 2 notes the impact of the index offences on her, her education, and her sense of safety. All parties agreed that the primary objective would require conditions in a disposition that assures her that K. (B.H.) would have no contact with her, direct or indirect. All also agree that a publication ban should follow that prohibits the publication of her name. The panel agrees entirely in both respects.
Submissions
20At the end of the hearing the parties renewed their submissions as presented at the beginning. All agreed that K. (B.H.) continues to represent a significant threat to the safety of the public and that a detention disposition was necessary and appropriate to manage his risk. All expressed concern associated with K. (B.H.)’s continued presence at OCDC and sought a disposition that provided sufficient flexibility to assure that his mental health and other needs are met while assuring the safety of the public as a primary objective.
Analysis and Conclusion
21As stated above, the panel has accepted the joint submission. In doing so it carefully considered the evidence in support of the threshold finding in a context where a period of months had passed since the finding that K. (B.H.) was not criminally responsible. As has been described by the Supreme Court of Canada in Winko, the determination that an individual represents a significant threat to the safety of the public is a weighty one. The individual before the Ontario Review Board bears no burden to show that the threshold is not met. The evidence must establish that there is a real likelihood that, absent a disposition, the individual before the Board will commit serious criminal offences and that the psychological or physical harm flowing from those offences will be significant. The importance of this threshold finding informs the approach that must be afforded to every individual appearing before the Ontario Review Board where a court has, as in this case, made a finding that an individual is not criminally responsible by way of mental disorder, but has not addressed the important question of whether that same individual represents a significant threat to the safety of the public.
22K. (B.H.) appears before the Board with a history of major mental illness the onset of which corresponds with some of the more serious offences found in his criminal record (i.e. a sexual assault). The index offences are themselves serious and sexual in nature and took place in a context of acute psychosis driven by major mental illness coupled with a long history of debilitating use of substances. K. (B.H.) has a questionable history of treatment compliance and is continuing to experience residual auditory hallucinations while receiving anti-psychotic medications and seemingly abstaining from the use of substances while in a highly secure environment. He has little insight into the index offences and little insight into the impact of substances on his major mental illness. He lacks stable mental health, and housing supports in the community and is subject to high and debilitating levels of stress as a person without status facing potential deportation back to the DRC. If not subjected to a disposition, there is a real likelihood that he would become non-compliant with medication, return to the use of deteriorating substances including stimulant drugs, and commit further serious offences similar to that committed in 2017 and for which he has been recently found not criminally responsible. His re-offence scenario is apparent. As such, it is our view that he continues to represent a significant threat to the safety of the public.
23Turning to the issue of disposition, we also agree that the only disposition that is appropriate having regard to the primary objective of assuring the safety of the public is that of a detention disposition. No other disposition would satisfy the provisions of s. 672.54 of the Criminal Code. These are early days, and the progress K. (B.H.) has shown has only taken place in the environment of the Ottawa Carleton Detention Center. While K. (B.H.) is able to receive his anti-psychotic medications in the OCDC, and while it does represent a highly secure environment that discourages his use of substances, it cannot be said that it is an environment that addresses any of the objectives of section 672.54. While it provides a current and acute protection of the public it is not equipped to undertake measures that assure public safety in a longitudinal or developmental sense. As stated by the Supreme Court of Canada in Winko, citing Lamer C.J. in R. v. Swain, [1991] ! S.C.R. 933
The objective of the legislation is to protect society and the accused until the mental health of the latter has been restored. The objective is to be achieved by treatment of the patient in a hospital, rather than in a prison environment….The need for treatment rather than punishment is rendered even more acute by the fact that the mentally ill are often vulnerable and victimized in the prison setting...
By creating an assessment-treatment alternative for the mentally ill offender to supplant the traditional criminal law conviction-acquittal dichotomy, Parliament has signalled that the NCR accused is to be treated with the utmost dignity and afforded the utmost liberty compatible with his or her situation. The NCR accused is not to be punished. Nor is the NCR accused to languish in custody…
24For the safety of the public to be ensured in a longitudinal sense, it does not serve for Mr. Kabesele to be languish in custody because of lack of traditional beds anymore than it would serve for him to languish in custody at the pleasure of the Lieutenant Governor, as was once the case. It cannot be said that the residual auditory hallucinations that he experiences in OCDC are not impacted at least in some measure by the stressful environment and circumstances being lived by him at that institution. His mental health and other needs require flexibility in the detention disposition so as to permit the Hospital to look to appropriate housing options that, having regard to K. (B.H.)’s specific circumstances, promise to assure the safety of the public.
25Accordingly, the Board concludes that Mr. Kabesele represents a significant threat to the safety of the public. It further concludes that a detention disposition is necessary and is the only disposition that adequately satisfies the primary objective set out in section 672.54 of the Criminal Code. It concludes that it is appropriate that the disposition both assures the victims of the index offence that their privacy will be respected and that Mr. Kabesele will have no contact with them directly or indirectly. Finally, it concludes that the flexibility in the detention disposition sought by the parties is both necessary and appropriate having regard to all of the objectives set out in section 672.54 of the Criminal Code.
26An order will issue accordingly.
27The Board thanks all those who assisted with this hearing for their helpful presentation of evidence and the organization of their submissions and expresses appreciation to Mr. Kabesele for his attendance. We encourage his continued abstinence from the use of substances, his ongoing treatment compliance, and his transparency and cooperation with the treatment team. We thank all who have assisted him to this point.
DATED this 8th day of September 2025, at the City of Toronto, in the Toronto Region.
D. Sandor
Legal Member
___________________
Office of the Registrar
Ontario Review Board