Re: Gaffar Othman
ORB File No: 8750
Hearing held on: Thursday, August 28, 2025
Place of hearing: Providence Care Hospital (Via Zoom Video Conference)
Pursuant to: Section 672.81(2.1) of the Criminal Code
Before: Alternate Chairperson: Ms. C. Finley Members: Dr. K. De Freitas Dr. M. Green Mr. E. Siebenmorgen Mr. S. Doherty
Parties Appearing: Accused: Gaffar Othman Counsel: Mr. M. Rodé
The Person in charge of Hospital: Counsel: Ms. T. Tom
Attorney General of Ontario: Counsel: Ms. J. Ferguson
REASONS FOR DECISION
(Dated September 22, 2025)
Introduction
On March 20, 2025, Gaffar Othman was found not criminally responsible on account of mental disorder (“NCR”) on charges of sexual assault and indecent act, contrary to the Criminal Code of Canada. He is currently subject to a disposition of the Ontario Review Board (“ORB”/“the Board”) detaining him at the Secure Forensic Unit of the Providence Care Hospital (“PHC”/“the hospital”), with discretionary privileges up to and including the ability to enter into the community of Kingston, indirectly supervised.
By letter dated July 21, 2025, the hospital informed the Board that Mr. Othman had been moved to seclusion on July 11, 2025. This resulted in a significant increase in the restriction of Mr. Othman’s liberty for a period greater than seven days, thereby normally triggering the notice provisions under s. 672.56(2) of the Criminal Code.
By letter dated August 19, 2025, the hospital informed the Board that Mr. Othman once again had been moved to seclusion on August 12, 2025, and remained in seclusion as of the date of the letter.
On August 28, 2025, the Board convened a hearing via Zoom technology to review the two restrictions of Mr. Othman’s liberty: from July 11 to July 23, 2025, and from August 12 to August 19, 2025. Mr. Othman was present and represented by his counsel, Mr. Rodé.
All parties agreed that, because the second period of seclusion was not greater than seven days, it was not subject to review by the Board. Further, the parties agreed that the only issue before the panel was a review of the July seclusion and the ensuing restrictions of Mr. Othman’s liberty. No changes were being sought to the existing disposition.
Ms. Tom, on behalf of the hospital, submitted that the period of seclusion was necessary and appropriate and represented the least onerous and least restrictive measure available to manage Mr. Othman’s risk to the safety of the public.
Ms. Ferguson, on behalf of the Ministry of the Attorney General, supported the hospital’s positions. Mr. Rodé deferred taking a position until the conclusion of the evidence. He ultimately submitted that neither the initial decision to seclude Mr. Othman nor the ongoing seclusion were necessary and did not represent the least restrictive and least onerous response available to the hospital.
Following the conclusion of the hearing, counsel were contacted and asked to provide submissions on whether the Board had the jurisdiction to consider the July Restriction of Liberty. As explained below, at the time of the restriction the hospital was operating pursuant to authority from the Court, not the Board. Counsel for the hospital and Mr. Othman chose not to make submissions on the issue. Counsel for the Ministry of the Attorney General took the position that the panel did not have the jurisdiction to review the restriction of liberty.
Findings
- In the unusual circumstances of this case, the Board concluded that it did not have the jurisdiction to review Mr. Othman’s restriction of liberty. But for the Board’s jurisdictional concerns, it would have concluded that, while the initial decision to seclude Mr. Othman was necessary and appropriate, the continuing restriction was not.
Evidence
- The evidence at the hearing consisted of the Hospital Report, dated June 4, 2025 (ex. 1), PHC Consultation Notes, dated August 25, 2025 (ex. 2), and the viva voce evidence of Dr. Selhi, Mr. Othman’s treating psychiatrist.
Index Offences
- On September 17, 2024, Mr. Othman was walking down a street in Kingston and grabbed a woman’s buttocks. The woman contacted police. A few hours later, Mr. Othman again walked past a woman, grabbed her buttocks and then flashed her. His shorts and underwear were around his ankles. Shortly thereafter, he was seen taking off all of his clothes and swimming in Lake Ontario.
The Evidence at the Hearing
As the only substantive issue before the Board was the restriction of liberty from July 11-23, 2025, and the Board’s last disposition is maintained until the next review, there is no need to summarize Mr. Othman’s personal, criminal or psychiatric history which are set out in detail in the recent Reasons for Disposition, dated August 11, 2025.
Mr. Othman’s current diagnosis is schizophrenia, in partial remission. His current standing medication consists of long-acting antipsychotic medication, Invega Sustenna every three weeks, and oral olanzapine taken daily. Following his NCR hearing in March, Mr. Othman demonstrated relative stability while on the forensic unit; however he intermittently refused his oral medication and continued to experience delusions and other psychotic symptoms. In April and May, he had three brief periods of seclusion, after making threats and demonstrating environmental aggression by kicking and slamming a door.
Following his initial hearing before the Board in June 2025, Mr. Othman continued to intermittently refuse his oral medication. According to the Consultation Notes, this “led him to become more symptomatic with delusions, abnormal perceptions, and other atypical behaviours characteristic of his psychotic disorder”. Historically, active symptoms of Mr. Othman’s illness have tended to precipitate aggressive acts. On July 10, he was verbally aggressive towards staff, resulting in a “grit yellow” status, which indicated that staff considered him to be at a heightened risk of violence. The next day, he was yelling, making delusional remarks, and hitting his head. “He was escorted to seclusion for paranoia and increasing psychotic behaviour.”1
Dr. Selhi testified before the Board. She is the author of the Consultation Notes and adopted its contents. Dr. Selhi testified that on July 11, 2025, Mr. Othman was exhibiting increased psychotic behaviour and paranoia, specifically, verbal aggression and hitting his head with his hands. Historically, Mr. Othman’s aggression has been in the form of hitting and kicking various objects such as doors and throwing things out of the hatch of his room, as well as self-injurious behaviour.
Dr. Selhi indicated that at one point on July 11, Mr. Othman yelled, “F Gabriel”, and made some religious allusion which was seen as evidence of his experiencing ongoing religious delusions. The clinical team became increasingly concerned about Mr. Othman’s state of mind and the associated risk to the safety of the staff and other patients on the unit. Mr. Othman was secluded in the observation suite where there could be closer monitoring of his mental status.
Of note, as of July 11, Mr. Othman had accepted his oral medication for the three days preceding his seclusion. This was in addition to his long-acting medication, which he also had been taking.
Dr. Selhi testified that Mr. Othman was seen by an attending psychiatrist on a daily basis. During each assessment the need for his ongoing seclusion would be considered. Dr. Selhi reported that on July 16th Mr. Othman was transferred to a less intensive High Intensity Treatment Room where the observation of patients was less frequent. His room was described as having a regular bed and washroom, however, Mr. Othman continued to be confined in his room with the door locked. On July 18, Mr. Othman was in an agitated state and kicking the door of his room. He was transferred back to seclusion in the observation suite.
Dr. Selhi testified that once Mr. Othman agreed to switch to olanzapine and accepted that medication, he showed some stability. That occurred on July 16, 2025. Initially, he was successfully trialed out of seclusion. He agreed to shower and engaged with psychiatric staff. As a result, on July 23, 2025, Mr. Othman was moved out of seclusion.
In response to questions from the panel, Dr. Selhi testified that there were times during this period of seclusion when Mr. Othman was settled but was reluctant to engage with psychiatric staff. She advised that a psychiatrist assessing Mr. Othman who was not familiar with him, would likely be reluctant to discharge him from seclusion unless Mr. Othman engaged with them. When asked if there were any attempts to incentivize Mr. Othman to engage with staff, such as short periods of seclusion relief with appropriate security, Dr. Selhi responded that Mr. Othman often decides when he will come out of seclusion. His decision often depends on his familiarity with the assessing psychiatrist.
Dr. Selhi testified that a “grit yellow” tag correlates to a greater risk for violence and a need for increased monitoring. It serves to alert all staff so that they are aware of the patient’s status while on the unit. The characterization itself is not sufficient for seclusion, just closer monitoring and a higher risk. Since Mr. Othman has been at the hospital, there has been no physical aggression towards staff or co-patients.
When asked if there was any indication of verbal threats by Mr. Othman on July 11, Dr. Selhi indicated that she did not think he was specifically engaging in verbal threats at that time but would have to go through the documentation. When asked if Mr. Othman’s risk could be safely managed through any means short of seclusion, Dr. Selhi indicated that he was moved to a less secure area in the high intensity treatment room but was moved back to the observation suite. Mr. Othman was seen on a daily basis and continued to meet the criteria for seclusion.
Dr. Selhi testified that on July 15th, she attended at Mr. Othman’s room. He declined his medication and would not engage with her. The next day, he was more amenable to medication changes, and she tried to get him out of seclusion by offering him a shower. Dr. Selhi was away from the hospital commencing July 17th.
At the conclusion of the evidence, the hospital and the Ministry of the Attorney General maintained their initial respective positions. Mr. Rodé submitted that Mr. Othman had not been aggressive or threatening toward staff or co-patients at the time of the decision to seclude him. Both the initial and ongoing seclusion were not the least onerous or least restrictive options available to the hospital to manage Mr. Othman’s risk to the public.
Analysis and Conclusion
a) Jurisdictional Hurdle
As the Board initially noted, it concluded that it does not have the jurisdiction to review Mr. Othman’s restriction of liberty. An initial disposition may be imposed by either a Court, as happened in this case, or by the ORB, where the trial Court defers that issue to the Board: Criminal Code s. 672.45-7. The distinction is critical in this case, involving as it does, a review of a restriction of liberty. The Criminal Code authorizes the Board to review a restriction of liberty from a disposition of the Board2. It is silent in respect of a restriction of liberty stemming from a disposition of the Court: see Criminal Code s. 672.56, 672.81(2.1). This would appear to be a gap in the legislative scheme.
It is important to set out the chronology of events since Mr. Othman’s NCR finding. On March 20, 2025, Mr. Othman was found NCR. The Court held a disposition hearing and issued a Warrant of Committal – Disposition of Detention. That disposition ordered that Mr. Othman be detained at the Secure Forensic Unit at Providence Care Hospital with hospital and ground privileges, accompanied by staff. Mr. Othman’s initial hearing was held at the hospital on June 24, 2025. The period of seclusion under review was from July 11-23, 2025. Mr. Othman’s disposition under the Ontario Review Board was issued on July 25, 2025. Critically, at the time of its decision to seclude Mr. Othman and thereby significantly increase the restrictions on his liberty, the hospital was operating under the delegation of authority from the Court, not the Board.
In the circumstances of this case, Mr. Othman was not subject to a disposition from the Board until two days after his release from seclusion. As a result, in these unique circumstances, the Board does not have the jurisdiction to hold a restriction of liberty hearing pursuant to s. 672.81(2.1) of the Criminal Code.
The significant increase in the restriction of Mr. Othman’s liberty
Notwithstanding our statutory interpretation conclusion, we deem it important and just to address the merits of Mr. Othman’s restriction of liberty review.
Having carefully considered the Hospital Report, the Consultation Notes and the evidence of Dr. Selhi, the Board unanimously concludes that the hospital’s initial decision to seclude Mr. Othman, and thereby significantly increase the restrictions on his liberty, was necessary and warranted. It represented the least intrusive and least restrictive measure available to the hospital to manage Mr. Othman’s escalating risk to the safety of staff and co-patients on the unit.
The clinical team had been working with Mr. Othman for several months and had a good appreciation and understanding of his mental status and risk factors. Their experience has shown that when Mr. Othman declines his medication, his symptoms of psychosis become more prominent. When untreated, Mr. Othman can become aggressive. On July 10, Mr. Othman was verbally threatening towards staff. On July 11, he was exhibiting behavioural dysregulation resulting from symptoms of his psychosis and engaging in environmental aggression. The Board accepts the team’s concern for a further escalation of aggression and gives deference to their expertise on that issue.
However, the hospital has failed to demonstrate why Mr. Othman’s ongoing seclusion for twelve days was necessary and warranted to protect the safety of the public. Accepting that Mr. Othman was reluctant to engage in an assessment with a psychiatrist with whom he was unfamiliar, steps could and should have been taken to encourage him to exercise some kind of seclusion relief. There was limited evidence as to what steps, if any, were taken in that regard.
Further, there was limited evidence as to his behaviour while in seclusion beyond not coming to the hatch and engaging with staff. There was no evidence of any ongoing threats or aggressive behaviour directed towards either co-patients or staff. There was no evidence of any environmental aggression while in seclusion but for his kicking the door when in the lesser intensity seclusion room. Although Mr. Othman was subject to less staff observation, he remained locked in seclusion.
In conclusion, the Board has found that it has no jurisdiction to review the restriction of Mr. Othman’s liberty while he was subject to a disposition issued by the Court. Having said that, the Board has determined that while the decision to seclude Mr. Othman was warranted on July 11, 2025, his continuing seclusion was not necessary nor warranted and did not represent the least onerous or least restrictive measure available to address Mr. Othman’s risk to the public.
DATED this 22nd day of September 2025, at the City of Toronto, in the Toronto Region.
Ms. C. Finley Alternate Chairperson
Office of the Registrar Ontario Review Board