Re Harriet Gray, 2026 CanLII 12803

Re: Harriet Gray

ORB File No: 8386

Hearing held on: Wednesday, January 21, 2026

Place of hearing: Thunder Bay Regional Health Sciences Centre

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. J. Weinstein

Members: Dr. K. Hand Dr. J.C. Rose Hon. E. Kruzick Mr. R. Rainboth

Parties Appearing:

Accused: Harriet Gray Counsel: Ms. M. Biggar

The Person in Charge of Hospital: Representative: Dr. R. Sheppard

Attorney General of Ontario: Counsel: Ms. S. Frenette

REASONS FOR DISPOSITION

(Dated February 10, 2026)

Introduction:

1. On September 11, 2023, Ms. Harriet Gray was found unfit to stand trial on a charge of manslaughter, contrary to the Criminal Code of Canada (“Criminal Code”).

2. Ms. Gray is subject to the terms of a Disposition of the Ontario Review Board (“the Board”), dated March 10, 2025, which ordered that she be discharged from the Thunder Bay Regional Health Sciences Centre (“TBRHSC”) subject to certain terms and conditions set out therein. The primary condition required that she reside at the Hogarth Riverview Manor (“Hogarth Manor”), in Thunder Bay, Ontario, in the Behavioural Support Unit.

3. On January 21, 2026, the Board convened a hearing at TBRHSC to conduct the annual review of the current Disposition.

4. Ms. Gray appeared by videoconference and was represented by her counsel, Ms. M. Biggar, who attended by telephone.

5. An Ojibwe interpreter was present and provided consecutive translation throughout the hearing.

6. A Hospital Report dated January 8, 2026 (the "Hospital Report"), was entered as Exhibit 1.

7. In accordance with s. 672.48(1) of the Criminal Code, the Board must decide whether Ms. Gray is unfit to stand trial on the day of the hearing, within the meaning of s. 2 of the Criminal Code. Specifically, is Ms. Gray unable, on account of mental disorder, to understand the nature or the possible consequences of the proceedings or to communicate with counsel? The other issues before the Board are whether Ms. Gray is permanently unfit, and if so, whether she remains a significant threat to the safety of the public.

8. If Ms. Gray is found fit, she must be sent back to court. If she is found unfit, but not permanently , the Board must make a Disposition that is necessary and appropriate, considering the criteria set forth in s. 672.54 of the Criminal Code. Similarly, if she is found to be both permanently unfit and a significant threat, the Board must determine the appropriate Disposition. If she is permanently unfit but not found to pose a significant threat to public safety, the Board may make a recommendation to the court pursuant to s. 672.851 (1) of the Criminal Code.

9. For the reasons set out below and based on the expert evidence and opinions before us, the Board found that Ms. Gray is permanently unfit to stand trial and does not constitute a significant threat to the safety of the public. Pursuant to s. 672.851(1)(b) of the Criminal Code of Canada, the panel recommends that Ms. Gray be returned to the court, for the court to determine whether Ms. Gray remains unfit to stand trial and whether there should be a stay of proceedings ordered, pursuant to section 672.851(9) of the Criminal Code of Canada. The current Disposition will remain in place pending determination by the court.

Current Psychiatric Diagnoses:

10. Major Neurocognitive Disorder (Dementia)

Outstanding Charge:

11. The circumstances of the Outstanding Charge are set out in last year’s Reasons for Disposition, dated April 10, 2025:

“The facts of the index offence are, briefly stated, that on May 18, 2022, Ms. Gray, then a resident at the Bethammi long-term care home in Thunder Bay, pushed a 91-year-old co-resident with her four-wheeled walker, causing him to fall backwards and hit his head on a concrete floor in the hallway. The fall caused a brain bleed which led to his death on May 24, 2022. Ms. Gray was arrested and was thereafter released on condition that she remain at the Hogarth long-term care facility.”

Background Information:

12. The Hospital Report contains a great deal of information on Ms. Gray’s background and psychiatric history, which is accurately summarized in last year’s Reasons for Disposition, as follows:

“The Hospital Report also provides significant details associated with Ms. Gray, her personal history and history of struggles with major mental illness.

She is now 86 years old, suffering from neurodegenerative dementia. She has a history of aggression and psychosis in the context of a urinary tract infection. She was born in Lac Seul First Nation, Ontario, suffered significant domestic violence and has been predeceased by 5 of her 6 children. She was the subject of residential schools as a youth and attained only a grade 3 education. She has been residing in the behavioural support unit at the Hogarth-Riverview Manor since June 22, 2022. She is neither capable of making decisions concerning her medication nor her finances. The Public Guardian and Trustee is assigned as her substitute decision maker for both of these areas.

The Hospital Report provides an update for this hearing, covering Ms. Gray’s clinical course over the last review period. Beginning at page 11, it explains that Ms. Gray suffers from progressive dementia and that her cognitive functioning is significantly impaired. Her memory is poor and she is disoriented as to time and place. She requires nursing assistance with all aspects of daily living. She has recently begun engaging more socially in the few months preceding this annual review and appears to be enjoying and benefiting from cultural programs and practices where she resides, including drumming. Even so, she has experienced periods of irritability and distress associated with the loss of her children.

The Hospital Report explains that Ms. Gray was experiencing hallucinations, delusions, and periods of aggressivity. This seems to have been somewhat resolved following successful treatment of a urinary tract infection. She no longer requires 1:1 observation and her self-reported mood is apparently good. She appears to be fairly stable. Her behaviour has been unremarkable now for several months. There has been no improvement in her cognitive functioning.”

Position of the Parties:

13. Dr. Sheppard, as representative for the hospital and most responsible physician, and counsel for Ms. Gray submitted that Ms. Gray remains unfit to stand trial, was permanently unfit, and does not constitute a significant threat to the safety of the public, and therefore, the matter should be remitted to the court for the court’s consideration as to whether the charges should be stayed.

14. Counsel for the Attorney General agreed that Ms. Gray is permanently unfit. However, she felt that Ms. Gray continues to represent a significant threat to the safety of the public and the necessary and appropriate Disposition was a continuation of the existing Conditional Discharge.

Course Since Last Disposition:

15. Ms. Gray’s course since her last Disposition is set out in the Hospital Report. The following extracted paragraphs are relevant:

“In previous years, Ms. Gray’s behaviour was somethings described as verbally and physically aggressive, to the point where, previously, she would sometimes require 1:1 observation by staff in order to ensure that possible safety issues were managed. This is no longer the case. There have in fact been no reported incidents of aggressive behaviour over the course of the past year. It is still noted that Ms. Gray can be territorial, and that she can react negatively to intrusions on her personal space as, for example, when others unexpectedly enter her room, or when co-residents stand too close to her in the dining room. At these times she can become anxious, and staff are able to successfully intervene in order to prevent any further escalation. Staff at the facility know Ms. Gray well, and are familiar with the subtle signs of anxiety which are occasionally present, and skilled at intervening to diffuse any potentially escalating conflict. Ms. Gray’s behaviour in the facility, overall, is described as quite stable over the course of the past year.”

Evidence at the Hearing:

16. The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Sheppard. Dr. Sheppard authored the Hospital Report. He testified as follows:

a) Ms. Gray suffers from a major neurocognitive disorder or dementia. Ms. Gray has experienced a progressive deterioration in her cognitive function, and he expects this to continue into the future. He would describe Ms. Gray as an elderly lady who is severely confused most of the time.

b) He assessed her on January 7, 2026, and as in previous years, she had no understanding of the criminal charges or her status with the criminal justice system or the Ontario Review Board.

c) It is his opinion as, set out in the Hospital Report, that she is unfit to stand trial and believes she will never be fit to stand trial. Ms. Gray’s cognitive deficits are permanent and likely to further worsen.

d) Ms. Gray is well cared for at Hogarth Manor. Her behaviour at Hogarth Manor for the past year or more has been non-aggressive. Ms. Gray’s mobility is also declining as she gets older and is more and more reliant on a wheelchair.

e) The likelihood of Ms. Gray causing harm to anyone is extremely low.

f) Staff at Hogarth Manor are quite familiar with Ms. Gray.

g) On the rare occasions that Ms. Gray does become slightly anxious, they are able to intervene quickly and redirect her to stop any behaviour that could be described as aggressive.

h) Ms. Gray is no longer a threat to public safety.

17. In response to questions from counsel for the Attorney General, Dr. Sheppard testified:

a) Ms. Gray’s diagnosis has not changed from the time of the outstanding charges.

b) Ms. Gray’s one-to-one supervision at Hogarth Manor ended in the summer of 2024.

c) The difference in his assessment of risk between this hearing and last hearing is that in the previous reporting year there were reports of aggressive behaviour at Hogarth Manor. These reports of aggressive behaviour ended in August of 2024 and there have been no concerns of aggressive behaviour since that time.

In addition, Ms. Gray’s mobility is greatly reduced this year, and she spends most of her time alone in her room. When Ms. Gray does leave her room to go to the dining room, she often uses a wheelchair.

Ms. Gray is cooperative with staff and there have been no reports of conflicts with any of the residents. Accordingly, the passage of time and her decrease in mobility and the lack of aggressive incidents over the past reporting period persuades him that she no longer represents a significant threat.

18. In response to questions from counsel for Ms. Gray, Dr. Sheppard testified:

a) Ms. Gray’s current Substitute Decision Maker is the Public Guardian and Trustee (“P.G. & T”). This is a change from last year, when her son was her Substitute Decision Maker. He has no concerns that the P.G &T would not make appropriate decisions for the care and stability of Ms. Gray.

b) Ms. Gray is assisted by Indigenous Health Services, and at the hearing with Ms. Gray was an Indigenous Health Associate as well as a Cultural Practitioner.

19. In response to questions from the panel, Dr. Sheppard testified:

a) Based on his current knowledge, there are no forensic risk assessment tools specifically designed for older adults. Accordingly, one must rely on one’s clinical judgment in assessing the risk of older adults.

b) Considering all of the circumstances that he has testified to, including the lack of aggressive behaviour and the structure and support that she is receiving at Hogarth, which is a very structured facility, he would describe Ms. Gray’s risk to the safety of the public as no higher than that of anyone else who suffers from dementia.

c) Ms. Gray’s risk of violence is reduced by her decreased mobility. As well, he has seen an improved stability of her mood and behavioural control. He would rate the risk of grave harm today as low and not significant. The risk she poses does not require specialized forensic care.

d) Ms. Gray can reside at Hogarth Manor for the rest of her life. Hogarth Manor is well equipped to manage Ms. Gray’s clinical needs and behavioural symptoms associated with her neurocognitive disorder.

e) Hogarth Manor is not a forensic service facility, and the forensic team has really had no role in or involvement in the monitoring of Ms. Gray.

20. No other evidence was called.

Analysis and Conclusions:

21. Having heard all the evidence and submissions from the parties, this Board agrees with the joint submission that Ms. Gray is unfit to stand trial and permanently so. Ms. Gray suffers from a major neurocognitive disorder (dementia) which is getting progressively worse.

22. The court in R v Bharwani, 2025 SCC 26, at paragraph 67 stated as follows:

The text of the statutory definition of “unfit to stand trial” provides some guidance on the requisite capacity threshold that an accused must possess. The definition notes “in particular” that an accused is unfit if they are unable to (1) understand the nature or object of the proceedings, (2) understand the possible consequences of the proceedings, or (3) communicate with counsel. The use of “or” between these requirements suggests that if the court is satisfied that the accused is unable to meet one of them, they are unfit to stand trial, as they lack the capacity to “conduct” a defence.

23. Ms. Gray is unfit to stand trial. Ms. Gray is unable to: understand the nature and object of the proceedings; understand the possible consequences of the proceedings; communicate meaningfully with counsel; meaningfully participate, and instruct counsel, in a criminal proceeding. Her mental health symptoms cannot be described as transient.

24. Ms. Gray’s mental health disorder (dementia) does compromise her ability to conduct a defence and it would impair her understanding of reality when making, or communicating, decisions in her defence.

25. In particular, the Board relies on the following extracted paragraph from the Hospital Report and Dr. Sheppard’s evidence to find Ms. Gray permanently unfit:

“Ms. Gray’s fitness to stand trial was last assessed on January 7, 2026, when she was interviewed at Hogarth Riverview Manor in the presence of the manager of the unit.

Ms. Gray clearly remains Unfit to Stand Trial. When interviewed on January 7, 2026, she was, as usual, pleasant, smiling, and cooperative; she was, however, profoundly confused and completely unaware of any issues pertaining to her criminal charge, or her ongoing involvement in the criminal justice system. She was disoriented to time and place, with severe impairment in short and long-term memory. She spoke in a low, mumbled, sometimes inaudible voice, rarely answering any questions with a comprehensible response. When asked specific questions regarding her charge or the nature and object of the proceedings against her, was generally mute, with a perplexed facial expression, sometimes stating, ‘I don’t know…’ Eventually, she lapsed into spontaneous low repetitive grunting which, staff explained, was a sign that she was becoming anxious. The interview was terminated shortly thereafter.

The hospital is of the opinion that Ms. Gray is Unfit to Stand Trial, and that she is unlikely to ever become Fit. She should be considered permanently unfit.”

26. It is the Hospital’s opinion that Ms. Gray is no longer a significant threat to the safety of the public and is supported by the doctor in his answers to the panel’s questions. In particular, the Board relies on the following extracted paragraph from the Hospital Report:

“It is the hospital’s opinion that Ms. Gray is no longer a significant threat to public safety.

As can be seen from the foregoing account, Ms. Gray’s behaviour has been stable over the course of the past year. The last report of any sort of aggressive behaviour was in August 2024; her confusion and agitation at that time appear to have been exacerbated by a urinary tract infection which was identified and treated, with favourable results. Since that time, Ms. Gray has been entirely non-aggressive. She is well-managed at the facility by staff who know her well and are able to detect any possible evidence of anxiety and to prevent the possible escalation of interpersonal conflict. This contributes to Ms. Gray’s ongoing behavioural stability.

Under the circumstances, it is the position of the hospital that Ms. Gray is safely managed at Hogarth Riverview Manor, where she will undoubtedly remain. It can no longer be said that she is a significant threat to the safety of the public.”

27. The central issue is whether Ms. Gray is a significant threat to the safety of the public.

28. The relevant legal principles to be applied to the evidence with respect to the issue of significant threat are summarized in the decision of the Ontario Court of Appeal in Marmolejo (Re), 2021 ONCA 130 at paras 34-37:

…the role of the Board is first to determine whether an NCR accused represents a significant threat to public safety. If the answer to that question is "no" or uncertain then the NCR accused must be discharged absolutely: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No 31, at pp. 659-61, 669 S.C.R. If the NCR accused does present a significant threat, the Board must either conditionally discharge or detain the individual: Winko, pp. 662, 669 S.C.R.

It is important to bear in mind that the Board's responsibility to grant an absolute discharge is non-discretionary in the event that it harbours any doubt about whether the NCR accused represents a significant threat: Carrick (Re), [2018] O.J. No. 4878, 2018 ONCA 752, at para. 16. As the majority of the Supreme Court emphasized in Winko, at pp. 652-53 S.C.R.: "Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application."

Individuals with mental disorders are not inherently dangerous: Winko, at p. 653 S.C.R. There is no presumption of dangerousness and no burden on the NCR accused to prove a lack of dangerousness: Winko, at pp. 660-61, 662 S.C.R. Rather, the legal and evidentiary burden of establishing significant threat rests on the Board or the court: Winko, at p. 663 S.C.R.

The threshold for significant risk is "onerous": Carrick (Re) (2015), 128 O.R. (3d) 209, [2015] O.J. No. 6524, 2015 ONCA 866, at para. 17. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public: R. v. Ferguson, [2010] O.J. No. 5138, 2010 ONCA 810, at para. 8. The conduct must be of a serious criminal nature: Ferguson, at para. 8. A very small risk of grave harm will not suffice, nor will a high risk of trivial harm: Ferguson, at para. 8. The threat must be more than speculative in nature; it must be supported by evidence: Winko, at p. 665 S.C.R.; Pellett (Re) (2017), 139 O.R. (3d) 651, [2017] O.J. No. 5025, 2017 ONCA 753, at para. 21.

29. Ms. Gray’s risk to the safety of the public has been managed outside of the forensic system at Hogarth Manor. There have been no aggressive instances since August of 2024 and the structure and support that she is provided at Hogarth Manor is more than adequate to manage any behaviours.

30. The Hospital Report and doctor’s evidence is that Ms. Gray’s risk to the safety of the public is low, and we agree.

31. The threshold for significant risk is onerous. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public. Upon a consideration of all of the evidence, the Board is unable to conclude that Ms. Gray continues to pose a significant threat to the safety of the public.

32. For the reasons stated above, we find that Ms. Gray is unfit to stand trial, is permanently unfit to stand trial, and does not constitute a threat to the safety of the public.

33. Accordingly, pursuant to s. 672.851(1)(b) of the Criminal Code of Canada, we recommend this matter be returned to court for the court to determine whether Ms. Gray remains unfit to stand trial and whether there should be a stay of proceedings ordered, pursuant to s. 672.851(9) of the Criminal Code of Canada.

DATED this 10th day of February 2026, at the City of Toronto, in the Region of Toronto.

Mr. J. Weinstein

Alternate Chairperson

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Office of the Registrar

Ontario Review Board