Re: Evan T. Barry
ORB File No: 8746
Hearing held on: Wednesday, August 20, 2025
Place of hearing: Waypoint Centre for Mental Health Care
Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Weinstein
Members: Dr. S. Simpson
Dr. J. Cheston
Ms. K. Tomaszewski
Ms. D. Smith
Parties Appearing:
Accused: Evan T. Barry
Counsel: Ms. L.M. Landry
The person in charge of hospital: Counsel: Ms. J. Lefebvre
Attorney General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DISPOSITION
(Dated September 16, 2025)
Introduction
On March 11, 2025, Mr. Evan T. Barry was found unfit to stand trial on charges of sexual assault, assault causing bodily harm, assault (x4), and failure to comply with an undertaking, all contrary to the Criminal Code of Canada. That finding was based on an assessment, and related report, of Dr. Andrew Wang, dated December 17, 2024, and a report of Dr. M. Pearce dated February 13, 2025.
The Court did not make a Disposition and ordered Mr. Barry be detained at the Waypoint Centre for Mental Health Care (“Waypoint” or the “hospital”) for an initial Disposition of the Ontario Review Board (the “Board”), pursuant to s. 672.47(1) of the Criminal Code.
On August 20, 2025, the Board convened a hearing at Waypoint to make an initial Disposition.
Mr. Barry was present at the hearing and was represented by his counsel, Ms. L. M. Landry.
A Hospital Report, dated August 1, 2025 (the "Hospital Report"), was entered as Exhibit 1.
By way of letter dated August 7, 2025, Waypoint sent a Rule 13 Notice to the Ontario Shores Centre for Mental Health Sciences (“Ontario Shores”). Ontario Shores’ response to this Rule 13 request, dated August 14, 2025, was marked as Exhibit 2. Ontario Shores indicated that they cannot safely manage Mr. Barry’s current risk to the public, nor do they have the appropriate resources to manage his complex clinical needs. They therefore opposed Mr. Barry’s transfer to their facility.
In accordance with s. 672.48(1) of the Criminal Code, the Board must decide whether Mr. Barry is unfit to stand trial on the day of the hearing, within the meaning of s. 2 of the Criminal Code. Specifically, is Mr. Barry unable, on account of mental disorder, to understand the nature of a trial and the possible consequences of the proceedings and to meaningfully communicate with counsel. If Mr. Barry is found fit, he must be sent back to court. If he is found unfit, the Board must make a Disposition that is necessary and appropriate, considering the criteria set forth in s. 672.54 of the Criminal Code.
For the reasons set out below, and based on the evidence before us, the Board has concluded that Mr. Barry is unfit. The Board also found that the necessary, and appropriate, Disposition, required to manage the threat posed to the public by Mr. Barry is a Detention Order at Waypoint with the privileges recommended by the hospital, on page 39 of the Hospital Report, and as set out in our formal Disposition. The Board declined to make an order for transfer to Ontario Shores.
Current Psychiatric Diagnosis
- Major neurocognitive disorder due to another medical condition, moderate, with agitation
Other (or unknown) substance use disorder, severe
Antisocial personality disorder
Schizophrenia/Schizoaffective Disorder (added by Dr. Mishra during the hearing)
Current Medical Diagnoses
- Anoxic Brain Injury
Outstanding Charges
- The circumstances giving rise to the Outstanding Charges occurred on January 27, 2022, April 12, 2022, June 28, 2022, July 15, 2022, March 3, 2024, July 19, 2024, and December 4, 2024. The following excerpts from the Hospital Report provide a summary of the Outstanding Charges:
#1 – Assault, January 27, 2022
On 16Jul22 the Peterborough Police investigated a report by [victim] of assault. [Victim] reported she was a nurse at the Peterborough Regional Health Centre in the Mental Health Inpatient Program (D1), and that she had been assaulted by patient Evan Barry.
Police attended PRHC and spoke to [victim]. [Victim] advised on 27Jan22 at 1030hrs she had been working in D1 sitting in the centralized secured nurse station monitoring patients.
[Victim] was working with a fellow nurse, when they began to smell smoke coming from the lounge area of D1. It was reported to staff that Barry had lit something using the toaster.
[Victim] and other nursing staff confronted Barry at his room, and noted he was holding cannabis and rolling paper in his hand.
Barry handed over the rolling paper to staff but refused to hand over the marijuana. While speaking to Barry he began ingesting the cannabis. Staff attempted to remove the cannabis from Barry. Barry swung his hand trying to punch the other nursing staff. [Victim] secured Barry’s right arm.
Barry quickly moved and grabbed [victim] around the neck with his left arm in a choke hold. Barry began pulling [victim’s] hair and spitting on her. Barry also forcefully removed [victim’s] mask from her face. Security arrived and helped restrain Barry. Barry had to be given an injection in order for him to calm down.
[Victim] advised she is fearful that Barry’s behaviour and actions will continue. She also believes that he will continue to escalate in his actions. [Victim] provided a written statement to police by email. Police formed grounds to arrest Barry for the following charge, section 266 CC – Assault. Police were unable to effect an arrest on Barry as he was being treated at PRHC at the time of the report. A warrant has been requested for Barry’s arrest.
#2 – Sexual Assault, April 12, 2022
On 12Apr22 [victim], a nurse at Peterborough Regional Health Centre, was working in D1 between 1230hrs-1330hrs while sitting in the centralized secured nurse station. [Victim] was working with an intern student.
[Victim] had observed Evan Barry drop his vape pod while standing outside the door of the nursing station.
[Victim] was aware Barry had alleged he was having some mobility issues that day, so she and the intern student went to help him retrieve the cartridge from the floor.
[Victim] picked up the cartridge and began to hand it to Barry in her right hand. As [victim] stretched out her right hand Barry lunged forward grabbing her right hand tightly and pulling her to him. Barry moved his face directly in front of [victim’s] and stated, “Don’t fucking touch me”.
Barry then grabbed [victim’s] right breast squeezing it forcefully and began twisting as he grasped tighter. [Victim] pushed Barry away and quickly moved into the nursing station, in pain and shaken. [Victim] advised Barry returned to his room without further incident.
Police were advised of the incident, but were unable to effect an arrest as Barry was being treated at PRHC.
#3 – Assault, June 28, 2022
On 16Jul22 the Peterborough Police investigated a report of assault. [Victim] reported she was a nurse at the Peterborough Regional Health Centre in the Mental Health Inpatient Program (D1), and that she had been assaulted by patient Evan Barry.
Police spoke to [victim] who advised on 28Jul22 at 1400hrs she had been working in D1 sitting in the centralized secured nurse station monitoring patients.
[Victim] observed Barry passing by another female patient and say something, causing the female to become extremely angry. The female came to [victim] and asked her if she heard what Barry said to her. [Victim] was advised Barry had stated, “I’m going to rape you in the ass”.
When [victim] confronted Barry about the statement, he admitted to the utterance and told [victim] “suck my dick”. [Victim] warned Barry about his behaviour and the consequences he would face if he continued to act out. [Victim] went to retrieve Barry’s medication and upon returning to Barry, he found him and another nurse, on the ground in a struggle. Barry was yelling at the other nurse, “I told you I’m going to see your tits” and was grabbing her shirt trying to rip it off her. [Victim] went to assist the nurse.
During the struggle, [victim] went to stand up. Barry who was laying on his back, up kicked toward [victim’s] face. [Victim] saw the kick and managed to move her head but was kicked in the left shoulder. [Victim] was kicked with so much force it caused her to fall backwards and hit the ground. Hospital security came and helped restrain Barry. Barry had to be given an injection in order to calm him down. Barry was secured in his room without further incident. [Victim] had a small injury to her left shoulder for the following few days.
Police were unable to effect an arrest on Barry as he was being treated at PRHC at the time of the report. A warrant request is respectfully being submitted for Barry’s arrest.
#4 – Assault, July 15, 2022
On 16Jul22 the Peterborough Police investigated a report by [victim] of assault. [Victim] reported she was a Nurse at the Peterborough Regional Health Centre in the Mental Health Inpatient Program (D1), and that she had been assaulted by patient Evan Barry.
Police attended PRHC and spoke with [the victim]. [Victim] advised on 15Jul22 at 0730hrs she had been working in D1 sitting in the centralized secured nurse station monitoring patients.
[Victim] had gone to Barry’s room to give him his vape cartridge. Barry was having difficulty opening the vape and requested that [victim] open it for him. [Victim] tried to encourage Barry that he could open it himself. Suddenly Barry got to his feet and struck [the victim] in the face with his hand. [Victim] was scratched on the left side of her face going from under her left eye to just above the top of her lip. Security restrained Barry while [victim] left the room holding her bleeding face. The cut bled for several minutes before stopping.
Police formed grounds to arrest Barry for the following charge: section 266 CC – Assault. Police were unable to effect an arrest on Barry as he was being treated at PRHC at the time of the report. A warrant is being requested for the arrest of Evan Barry.
#5 – Fail to Comply with Undertaking, March 3, 2024
On 03Mar2024, Peterborough Regional Health Centre staff contacted the Peterborough Police Service to report the accused Evan Barry was unwanted and in breach at the hospital.
At 1117hrs, PC Kelly and PC Eason arrived at Peterborough Regional Health Centre and located the accused on the bench at the entranceway to the emergency room of Peterborough Regional Health Centre. It was confirmed that the accused was not in medical distress and had no reason to be at the hospital. At 1118hrs, PC Kelly placed the accused under arrest for fail to comply with undertaking.
#6 – Assault Cause Bodily Harm, July 19, 2024
On 23Jul2024, at 1116 hours, Peterborough Police received a call from [victim] stating that she is a nurse at PRHC and while working on B4 she was assaulted by a patient she knew as Evan who is 27 years old and that she has a concussion as a result.
At 1900 hours, police arrived and spoke with [victim] in her kitchen. [Victim] explained that she is an RN at PRHC and that on Friday 19Jul24 she was working an overtime shift on B4 when her usual floor is B6. [Victim] explained that because it was a floor she does not normally work on she was not familiar with the patients. [Victim] further explained that when she first called into police, she could not remember the last name of Evan who had assaulted her but knew he was 27, however since the incident she has spoken to other nurses on B4 who confirmed that Evan’s last name was Barry.
[Victim] explained that Evan was laying down but when she went over to his side of the bed to check on him, he immediately sat up, grabbed her by the collar of her scrubs, and started punching her in the left side of the face and head. [Victim] stated that she started yelling and trying to get Evan off of her and it was not until the other two nurses came running in that she was able to get free of Evan’s grasp. [Victim] explained that this resulted in them having to call a code white to get hospital security staff to attend the room and restrain Evan.
[Victim] told police that she was not feeling well after the incident and on the morning of 23Jul24 at approximately 0500 hours, she was triaged by the PRHC emergency department after her night shift. She was told that she had a concussion and that she was going to be off work for the next 7 days.
As a result of the statement provided, police established grounds to charge Evan Barry with the following charge – s. CC 267(b) – Assault causing bodily harm.
#7 – Assault, December 4, 2024
On 30Nov24 at 0634 hrs, complainant and victim, a security guard from Garda-World, the security company contracted to patrol Peterborough Regional Heath (PRHC) contacted the Peterborough Police Service reporting she was assaulted while at work within PRHC by patient, Evan Barry.
Background, Education, Employment History, Criminal Offence History, and Psychiatric History
Mr. Barry has an extensive criminal offence history prior to the outstanding charges, beginning in 2012 and continuing to 2020. Charges include assault (x8), mischief under $5,000, failure to attend/comply, theft, uttering threats, and carrying a concealed weapon. Notably, in 2015 he was sentenced to 224 days in custody for assault causing bodily harm against his mother (who suffered two broken ribs, a collapsed lung, and a concussion), and failure to comply with probation order.
Mr. Barry’s background, education, employment history, criminal offence history, and psychiatric history, are set out in detail in the Hospital Report, and need not be repeated in detail. The following slightly edited paragraphs extracted from the Hospital Report are relevant to this hearing.
Background
Mr. Barry’s mother passed in 2020. His father was reportedly convicted of domestic assault against Mr. Barry, as well as his mother and older brother.
Mr. Barry’s childhood can be described as turbulent, and he was first placed in the temporary care of Children’s Aid Society (CAS) at one and half years old. Along with the previously mentioned domestic assault charges his father incurred, an incident occurred where his mother pushed him and his brother down a flight of stairs in a shopping cart after she became frustrated (his age at this time is unknown).
At the age of five, his care with CAS became a permanent placement, and he was made a crown ward. He was reported to have unmanageable behaviour problems. Between the ages of five and six years, Mr. Barry had lived between six different group homes and nine different foster homes. By the age of sixteen, Mr. Barry had reportedly lived in fourteen different group homes. Despite his apprehension by CAS, Mr. Barry maintained regular contact/visitation with his mother. It was suspected that she would supply him with marijuana and crack cocaine during such visits.
Mr. Barry had previously denied abuse; however, notes indicate a significant history of trauma, which included sexual assault. He was also reportedly physically assaulted by a CAS worker, leaving Mr. Barry with a broken nose. After turning 18, Mr. Barry declined further support from CAS.
Mr. Barry saw a psychiatrist at age five and was diagnosed with Attachment Disorder. In 2007, a child psychiatrist diagnosed him with Reactive Attachment Disorder and Oppositional Defiant Disorder. Further psychological testing revealed problematic personality traits, such as borderline, antisocial, impaired attachment disorder, and relationship difficulties.
Mr. Barry reportedly attended at least six different elementary schools, and given his behavioural issues, was placed into smaller classes and had an individualized education plan. He was expelled in both Grades seven and eight, and thereafter was able to complete two high school credits.
Mr. Barry’s employment history is unremarkable.
Medical History
Mr. Barry suffered an anoxic brain injury in May 2020, secondary to a drug overdose. From June to September of that year he was intubated in the ICU. He displayed seizure activity and developed spasticity in his lower extremities, requiring a wheelchair for mobility. MRI results suggested that he had experienced a hypoxic ischemic insult to his brain. He was admitted to the Acquired Brain Injury Program at Hamilton Health Sciences in September 2020 but repatriated to Peterborough Regional Health Centre (PRHC) in October 2020.
Substance Use History
Mr. Barry reportedly first began consuming alcohol at the age of twelve, becoming a “problem drinker” at the age of thirteen. He was stated to have also first smoked marijuana at the age of twelve and admitted to smoking two grams on a daily basis, for a “long time”. Health care records have also indicated a history of crack cocaine, heroin, crystal methamphetamine, and ecstasy use. Records indicate that during prior hospitalizations his brother would take him on passes, whereby Mr. Barry would indulge in illicit substances, with one instance where Mr. Barry returned with cannabis and other drug paraphernalia. As noted above, Mr. Barry suffered an anoxic brain injury secondary to drug overdose.
The Hospital Report contains brief descriptions of 19 psychiatric admissions between 2015 and 2020. Several admissions were assessments for fitness to stand trial and/or assessments of criminal responsibility.
As noted above, Mr. Barry suffered an anoxic brain injury in May 2020, secondary to a drug overdose. He remained in Peterborough Regional Health Centre from October 29, 2020, to April 14, 2023. Salient features of this admission are described in the following excerpts from the Hospital Report:
Mr. Barry was admitted as a transfer from the neurobehavioural rehabilitation unit of Hamilton Hospital as a repatriation agreement. He was admitted to the mental health unit due to safety concerns and presenting behaviour; there was no evidence of psychotic presentation on admission. Prior to his brain injury, diagnoses included reactive attachment disorder, conduct disorder, polysubstance use disorder, and substance-induced psychosis, along with a query of schizophrenia. There was also a noted history of antisocial personality disorder, developmental trauma, and borderline personality disorder features.
Over the course of his admission, Mr. Barry engaged in aggressive behaviour and assaulted multiple nursing and security staff physically and sexually. There were also instances where he engaged in sexually inappropriate behaviour with female co-patients. Such aggressive behaviours and high levels of agitation resulted in a lengthy period where he was managed on the Psychiatric Intensive Care Unit. There
were several instances where he required management by way of seclusion or locked doors to manage his risk.
When utilizing off-unit passes with his brother, there were multiple instances where he returned intoxicated, on alcohol, cannabis, and other substances. On June 10, 2022, Mr. Barry was assessed as incapable to consent to treatment decisions, and his brother assumed the role of substitute decision maker.
Prior to discharge, Mr. Barry was placed on a provincial pressure list, where a residential bed was eventually secured with Head Injury Rehabilitation Ontario (HIRO), at the Camden Heights home in Vineland.
- Mr. Barry remained at HIRO from April 14, 2023, to June 14, 2023, when he was discharged for the following reasons:
…there were a number of troubling incidents which began on May 18 and continued to escalate, requiring support from 911 on a number of occasions…
Mr. Barry’s aggressive behaviours did not follow a predictable pattern based on applied behavioural analysis literature. As a reminder, HIRO does not have access to nursing services, security guards, physical restraints, or immediate chemical restraints as a community-based rehabilitation service. We are therefore unsuited to manage Mr. Barry’s behaviours and are not confident that behavioural therapy alone is a realistic treatment recommendation for Mr. Barry. …Mr. Barry is therefore discharged from HIRO’s residential services effective immediately.
- Mr. Barry had several additional admissions to Peterborough Regional Health Centre in 2023 and 2024.
Course in Hospital:
- Mr. Barry’s course in hospital is set out in detail in the Hospital Report. The following extracted paragraphs are relevant to the hearing:
Mr. Barry was admitted to the Forensic Assessment Program (FAP) from the Central East Correctional Centre on July 2, 2025, on a Warrant of Committal-Unfit. The charges listed on the Warrant included Sexual Assault, Assault Cause Bodily Harm, Assault x 4, and Fail to Comply with Undertaking. He has remained on the FAP and under the care of Dr. A. Mishra throughout his hospitalization.
Multiple staff are required to assist Mr. Barry with his activities of daily living. This includes supervision for balance/falls risk, collecting necessary supplies, step-by-step verbal cuing, and physical assistance as needed with dressing/changing his brief, and bathing. Mr. Barry is frequently incontinent, and staff regularly provide assistance/prompting for cleaning. Full assistance is also required to maintain the cleanliness of Mr. Barry’s room, change bed linens, and complete laundry.
Mr. Barry’s affect is blunted/constricted at baseline, although there have been instances noted of emotional lability (i.e. laughing and crying). There are no observed abnormal or involuntary movements. Mr. Barry generally communicates through hand gestures; when he does speak, it is limited to a few words (1-3), and these are of low volume and mumbled. Furthermore, his thought process is significantly slowed, and he demonstrates a latency in his responses (5-40 seconds). His thought content is difficult to assess. Mr. Barry has been observed overtly laughing to himself but will deny active symptoms of major mental illness such as delusional ideations or perceptual disturbances.
… there have been instances where he’s engaged in sexually inappropriate behaviours, environmental aggression and physical aggression. Episodes of sexually inappropriate behaviours have primarily occurred in the presence of female staff; during such instances he was not receptive to health teaching surrounding appropriate behaviours and has laughed when staff have attempted to debrief him after incidents. Mr. Barry has also demonstrated boundary-testing behaviors such as blowing kisses or forming heart shapes with his hands toward staff, often followed by laughing or crying in response to redirection. At times, he demonstrates some insight into his behavioural presentation.
Mr. Barry demonstrates significantly limited verbal communication; however, is able to respond to simple questions using visual prompts and non-verbal gestures (most commonly a “thumbs up” to indicate agreement or preference). He has also been able to type on a computer and/or utilize a picture exchange system to assist in communication if needed. His willingness to engage with such tools has been inconsistent and there have been instances where he’s utilized the keyboard device to type sexually inappropriate comments to staff.
Mr. Barry continues to present with the sequelae of anoxic brain injury symptoms including, urinary incontinence, impaired cognition, constipation, expressive aphasia, evidence of slowed processing and latency in responses, impaired fine motor skills, and impaired gait and mobility.
Mr. Barry has experienced 5 falls since admission. He has been supported by the occupational therapist who completed a falls risk assessment and functional mobility assessment in order to inform fall prevention measures and mobility recommendations.
Mr. Barry has been secluded briefly on three occasions. There have been numerous incidents of Mr. Barry exposing himself and openly masturbating. There have been incidents of environmental aggression.
On July 26, 2025, Mr. Barry charged at a female staff member and ripped her shirt in the chest area. Staff were required to utilize CPI techniques to return him to his room. Mr. Barry was laughing and raising his fists during attempts to verbally de-escalate him.
Position of the Parties
The hospital took the position that Mr. Barry is unfit to stand trial; that it supports a transfer to Ontario Shores; and that the necessary and appropriate Disposition is a Detention Order upon the terms recommended by the hospital and set out at pages 38-39 of the Hospital Report.
Counsel for the Attorney-General took the initial position that they would likely agree that Mr. Barry is unfit, and that the necessary and appropriate disposition is a detention order. With respect to placement, counsel took the position that the appropriate placement for Mr. Barry is Waypoint, because he is housed in a unit with an all-male patient population.
Counsel for the defence indicated that she had been unable to obtain instructions with respect to the issue of fitness, but that she was able to support the hospital’s recommendations with respect to the disposition and the transfer to Ontario Shores.
As noted above, Ontario Shores indicated in its letter dated August 14, 2025, that it opposed the transfer of Mr. Barry to their facility.
Evidence at the Hearing
The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Mishra. Dr. Mishra co-authored the Hospital Report and testified as follows.
With respect to fitness, Dr. Mishra met with Mr. Barry two days prior to the hearing. Another member of staff was present, and a laptop was available for Mr. Barry to type responses. Dr. Mishra could not elicit any meaningful conversation from Mr. Barry. During that meeting, Mr. Barry laughed and smiled inappropriately. He said “subway” and responded “yes” when asked if he meant subway sandwich. He opened YouTube and listened to music.
Mr. Barry’s ability to communicate is significantly limited, because of his brain injury. If he speaks it is with single words or short phrases. He can indicate some things with his hands e.g. thumbs up and fist bumps, but he is not able to communicate meaningfully with counsel. He is unable to participate meaningfully in a court proceeding, even with potential accommodations. He will type a bit if he is in a good mood, but even with typing he will not say much, just words or phrases.
In Dr. Mishra’s opinion, Mr. Barry poses a risk to the safety of the public. He has a diagnosis of antisocial personality disorder, manifested in irritability, sexually inappropriate behaviour, aggression, behavioural problems, and environmental aggression.
Because of impulsivity, he will masturbate publicly, and grab females. The anoxic brain injury is a major driver of his behaviours and makes it difficult to tease out which of his diagnoses are operative at any given time.
His current medications are adequate to manage him. Lupron has reduced but not eliminated Mr. Barry’s inappropriate sexual behaviour.
Mr. Barry is always accompanied one-to-one by a male staff member when he is out of his room.
Dr. Mishra was asked why he supported a transfer to Ontario Shores.
According to Dr. Mishra, for the past 3 weeks Mr. Barry has been settling in. He is now in the Awenda ward, which is more geared to his needs. He is easily manageable now on a daily basis. He requires assistance with bathing, dressing, and managing his incontinence briefs. He can walk, but without a walker he is at a high risk for falling.
Seclusions are used almost as a “time out”. Mr. Barry is easy to redirect, once the staff gets to know him, without resort to seclusion. While many issues arise which are unpleasant and inappropriate, they are not dangerous. Dr. Mishra told the Board that Mr. Barry reminds him of people with brain injuries in group homes who do not require a high level of security.
His mobility is limited, and thus his ability to be violent is limited. Mr. Barry is not likely to target someone or plan violence. He would be more likely to grab at someone, push someone, or throw things, than plan to use his walker or his food as a weapon.
The nursing staff have learned to be cautious. In Dr. Mishra’s opinion, the staff at Ontario Shores are equally equipped to manage Mr. Barry, unlike the nursing staff at the Peterborough hospital, who were not trained to deal with potentially violent patients.
For these reasons, Dr. Mishra was of the opinion that the high security facilities at Waypoint were not required to manage Mr. Barry’s risk to the public.
In addition, Ontario Shores is much more accessible to Mr. Barry’s family and social network, who are in Peterborough. Dr. Mishra suggested that in the future it might be easier for Mr. Barry to progress to a group home from Ontario Shores than from a high secure environment like Waypoint.
In response to questions by counsel for the Attorney-General, Dr. Mishra agreed that Mr. Barry’s history supports the conclusion that he is capable of violence. In 2015 he assaulted his mother, resulting in serious injuries. The outstanding charges all occurred after the brain injury and resulted in serious physical and psychological harm to the victims.
In response to questions about the recent incident on July 26, 2025, less than four weeks prior to the hearing, Dr. Mishra explained that Mr. Barry overestimated his strength, and instead of grabbing the breast of the staff member, he only managed to grab her shirt.
Since that time, no further incidents have occurred. Dr. Mishra agreed in response to questions that since that time staff have been extra cautious, and the one-to-one staffing is only with male staff.
Dr. Mishra stated that as long as he is attended one-to-one when he is outside his room, his risk can be managed with relocation to Ontario Shores.
Dr. Mishra was unable to provide evidence about whether Ontario Shores has the resources to provide one-to-one male staffing; or whether the type of seclusion relief available at Waypoint because of Waypoint’s dedicated seclusion relief team is available at Ontario Shores.
In response to questions, Dr. Mishra testified that Mr. Barry’s behaviour is consistent, but unpredictable. Overall, Mr. Barry laughs inappropriately, and engages in sexual behaviour quite regularly, with no clear trigger. In short, he will engage in sexual or aggressive behaviours, but the timing will be unpredictable.
No other evidence was called by the parties.
In closing submissions, counsel for the Attorney-General indicated agreement with the hospital that Mr. Barry is unfit to stand trial. The parties maintained their initial positions in all other respects.
Analysis and Conclusions
Fitness to Stand Trial
- The first issue for the Board to decide is whether Mr. Barry remains unfit to stand trial.
Applicable Law
- The Supreme Court of Canada addressed the fitness test, most recently in R v Bharwani, 2025 SCC 26 (“Bharwani”). In this decision the Supreme Court emphasized the following with respect to the fitness test:
a) Fitness to stand trial does not require an accused to make decisions in their best interests. Instead, “it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder.”1
b) The accused is fit to stand trial if they can “make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so”2 and “intelligibly communicate these decisions to counsel or the court.”3
c) Conducting a defence involves “making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others.”4
d) The “capacity” required to make these decisions includes “a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions.”5
e) “Transient” mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is “always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence.”6
f) The fitness to stand trial test is “contextual,” and the inquiry “focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.”7
g) The same test for fitness to stand trial applies to all accused whether they are represented by counsel or not.8
Determination on Fitness
Having heard and considered all the evidence and submissions from the parties, the Board agrees with the submission of the hospital and the Attorney-General, that Mr. Barry is unfit to stand trial. During the hearing, Mr. Barry frequently laughed inappropriately, but otherwise spoke no words and gave no indication that he is capable of communicating meaningfully with counsel.
Mr. Barry is unable to communicate whether he is able to understand the nature and object of the proceedings or understand the possible consequences of the proceedings. It is clear that he cannot communicate meaningfully with counsel, and he cannot meaningfully participate and instruct counsel in a criminal proceeding.
Mr. Barry’s mental health symptoms cannot be described as transient. Mr. Barry’s mental health disorder and brain injury compromise his ability to conduct a defence and would impair his understanding of reality when making or communicating decisions in his defence.
In Clayton (Re), 2025 ONCA 308, the Court of Appeal for Ontario held that “the nature of the charges and allegations” facing an accused is important context when applying the fitness test. In particular, at paragraph 11 “the simpler the case is, the easier it is to understand, appreciate and talk about.”9
The Board finds that Mr. Barry’s criminal charges are reasonably complex, and serious. This is not a straightforward simple case. The charges involve numerous assault charges on 7 different dates spanning almost 24 months.
Because the allegations involve numerous serious charges, it is critical that Mr. Barry have a full understanding of the legal process to ensure meaningful participation and that he be able to instruct counsel accordingly.
Necessary and Appropriate Disposition
- The Board finds the Disposition that is necessary and appropriate in the circumstances is a Detention Order. In particular, the Board relies on the following extract from the Hospital Report:
The five clinical items on the HCR-20 examine certain features regarding recent psychosocial adjustment that, if present in the past several months, are important to consider in terms of violence risk prediction and management. There is evidence to suggest that 4/5 clinical risk factors are of concern for Mr. Barry.
Insight: Mr. Barry does have insight into his risk of violence, expressed through gestures instead of verbal response, prevented by his brain injury. Anytime he has assaulted staff or acted sexually inappropriate he laughs or smiles in response. He appears to have no concern or regret for his behaviour. Therefore, this item is present and important to his level of risk as he is aware of the consequences of his actions.
Violent Ideation or Intent: Mr. Barry has intentionally attacked staff. Although he has not verbally stated he would harm anyone or made threats due to his brain injury, his expressive actions have made it clear to staff that he has intent to harm (smiling and laughing after staff injury). He was asked post assault if he would do this again and he nodded his head in the affirmative.
Major Mental Disorder: Mr. Barry’s present diagnosis is major neurocognitive disorder due to medical condition, moderate with agitation, antisocial personality disorder and severe substance use disorder. His previous diagnosis of schizophrenia has been difficult to assess due to his acquired brain injury. There does not appear to be any symptomology to suggest mental illness at this time. [Note: The diagnosis of schizophrenia/schizoaffective disorder was added by Dr. Mishra during the hearing.]
Instability: Mr. Barry has demonstrated instability across all three domains. He has been sexually inappropriate, assaultive to staff and engaging in environmental aggression by punching his walls and pouring water all over the room. His cognition is impaired in terms of expressive language; however his receptive skills are intact.
Treatment or Supervision Response: Mr. Barry does not follow direction consistently and will not accept PRN’s when he is demonstrating a need for them. He does participate in groups on the unit to the best of his abilities and does take his regular medications.
Mr. Barry requires assistance with most activities of daily living and is not capable of living independently. There is no evidence that suitable living arrangements are available to Mr. Barry in the community. There was no evidence to support a conclusion that a conditional discharge is realistic at this time.
Transfer Request
The Board does not agree with the hospital’s recommendation to transfer Mr. Barry to Ontario Shores.
As recently as July 26, 2025, Mr. Barry attacked a female staff member, grabbing and ripping her shirt in the chest area. This incident is similar to many of the incidents giving rise to the outstanding charges.
The evidence supports a conclusion that Mr. Barry behaves in a sexually inappropriate manner to female staff even when accompanied one-to-one by a male staff member. He only targets females. He masturbates publicly and is not redirectable. His behaviour is consistent – he will do this – but unpredictably. There is no reason to suppose Mr. Barry will treat female co-patients any differently than he treats female staff members if he is transferred to Ontario Shores.
Dr. Mishra agreed that female co-patients are especially vulnerable persons due to their mental health issues, and Mr. Barry’s on-going, and unpredictable sexual behaviours put both female patients and staff at Ontario Shores at a real risk of both psychological and physical harm.
The Board adopts the reasons expressed in the Ontario Shores letter, in response to the R13 request, opposing Mr. Barry’s transfer:
I have reviewed the hospital report on Mr. Barry, dated August 1, 2025. Based on the information contained in that report, I do not believe that Mr. Barry can be safely managed at Ontario Shores, nor do I believe that Ontario Shores can provide the most appropriate care to Mr. Barry.
Mr. Barry was admitted to Waypoint on July 2, 2025, and was subsequently secluded on three occasions in one month. He engaged in multiple assaults on staff, including one incident in which he ripped the shirt of a female staff member in the chest area. There were multiple episodes of physical environmental aggression. He also engaged in sexually inappropriate behaviour on multiple occasions, such masturbating in front of female staff. In my opinion, this level of physical and sexual aggression is beyond what Ontario Shores is equipped to safely manage on an ongoing basis.
I also note that Mr. Barry targets females and historically has targeted female co-patients as well as staff members. All of the forensic units at Ontario Shores are coed, with female patients being housed on the same secure units where Mr. Barry would be placed. In my opinion, this would place them at elevated and unacceptable risk of harm. I would recommend that consideration be given to housing Mr. Barry on an all-male unit.
Finally, it appears that one of the main drivers of Mr. Barry’s aggression is his anoxic brain injury. Ontario Shores does not have any resources specializing in the management of the psychiatric sequalae of acquired brain injury, nor do I know of any readily available in our community.
- In consideration of all the evidence, submissions of the parties and criteria set forth in s. 672.54, the paramount consideration being the safety of the public, in addition to the mental condition of Mr. Barry, his reintegration into society and his other needs, the necessary, and appropriate Disposition, is a Detention Order on the terms set out in our formal Disposition.
DATED this 16th day of September 2025, at the City of Toronto, in the Region of Toronto.
Ms. K. Tomaszewski
Legal Member
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Office of the Registrar
Ontario Review Board