Re Kwan, Bobby Choi, 2026 CanLII 15119

Re: Kwan, Bobby Choi

ORB File No: 8911

Hearing held on: January 16, 2026

Place of hearing: Ontario Shores Centre for Mental Health Sciences 700 Gordon Street, Whitby

Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code

Before:

Alternate Chairperson: Ms. L. Banks (via Zoom)

Members: Dr. R. Sheppard Dr. L.O. Lightfoot Ms. C. Murray Mr. R. Chopra

Parties Appearing:

Accused: Bobby Choi Kwan Counsel: Mr. Jeff Berman (via Zoom)

The person in charge of hospital: Representative: Dr. Mark Pearce

Attorney General of Ontario: Counsel: Ms. N. MacDonald

REASONS FOR DISPOSITION

(Dated February 20, 2026)

Introduction

1. On October 20, 2025, Bobby Choi Kwan was found unfit to stand trial on a charge of aggravated assault, contrary to the Criminal Code of Canada. Mr. Kwan has been the subject of a Warrant of Committal, dated October 20, 2025, detaining him at Ontario Shores Centre for Mental Health Sciences (“Ontario Shores” or “the hospital”).

2. On January 16, 2026, a panel of the Ontario Review Board (“ORB” or “panel”) convened to determine whether Mr. Kwan remains unfit to stand trial and to conduct an initial hearing pursuant to s. 672.47(1) of the Criminal Code.

3. Mr. Kwan was present and represented by his counsel, Mr. Jeff Berman, throughout. A Cantonese interpreter was present and provided simultaneous translation for Mr. Kwan.

4. At the outset of the proceedings, all parties were canvassed as to their positions on the issues to be determined by the Board. Dr. Pearce, on behalf of the hospital, submitted that Mr. Kwan is unfit to stand trial and recommended that the necessary and appropriate disposition is a Detention Order in the Forensic Service at Ontario Shores on the terms set out on page 10 of the Hospital Report.

5. Ms. MacDonald, on behalf of the Ministry of the Attorney General, after hearing the evidence, supported the hospital’s position.

6. Mr. Berman conceded the issue of significant threat and concurred with the position of the hospital and their recommended terms.

Findings

7. For the reasons that follow, the panel found that Mr. Kwan remains unfit to stand trial and the necessary and appropriate disposition is a Detention Order in the Forensic Service at Ontario Shores with the privileges and conditions as recommended by the hospital, as set out in our formal Disposition.

The Evidence

8. The documentary evidence at the hearing consisted of the Hospital Report dated December 29, 2025 (Exhibit 1).

9. Dr. Arnold gave viva voce evidence at the hearing.

Psychiatric Diagnosis

10. Schizoprehenia

The Index Offence

11. The Hospital Report contains details of the alleged incident. Briefly, on May 26, 2025, police attended at Mr. Kwan’s residence in Toronto for a wellness check regarding his brother. Mr. Kwan said his brother went to their sister’s residence. When officer said they needed to check the house, Mr. Kwan led them downstairs where they found a body in a garbage bin missing its head and neck. Mr. Kwan was arrested.

Background Information and Course in Hospital

12. The Hospital Report contains detailed information about Mr. Kwan’s personal background and history and therefore need not be repeated in these Reasons beyond the following material points. Mr. Kwan is a single 67-year-old man who was born in Hong Kong. He completed his grade 12 education in Canada.

13. On May 25, 2025, Mr. Kwan was arrested for the index offence. On July 21, 2025, Dr. Paul Benassi and Dr. Dennis Curry recommended a treatment order. Based on the opinion of Dr. Dennis and Dr. Benassi, on July 28, 2025, Mr. Kwan was found unfit to stand trial and a 60-day treatment order was issued. On August 18, 2025, Mr. Kwan was admitted to Ontario Shores to the Forensic Assessment Unit (FAU). On October 20, 2025, Mr. Kwan was found unfit to stand trial by Justice B. Brown and a Warrant of Committal was issued detaining Mr. Kwan at Ontario Shores to await his Initial Hearing before the Board.

14. Mr. Kwan does not have a history of substance misuse.

15. Mr. Kwan has a conviction from 1983 for theft under $200, for which he received a conditional discharge and six months’ probation.

16. Mr. Kwan has been supported by the Ontario Disability Support Program (ODSP) reportedly for ten years due to a visual impairment.

17. Mr. Kwan was seriously assaulted by a co-peer in hospital in the fall of 2025.

18. Mr. Kwan’s psychiatric history was provided by Dr. Lo, his former community psychiatrist, extracted from the Hospital Report as follows:

“Mr. Kwan was under the care of Hong Fook Mental Health Service for a long time. He was seen by me, and Dr. Dominic Lee at various times until he was lost to follow up after March 29, 2017. He initially presented with social withdrawal laughing and talking to himself. He avoided eye contact and spoke very little. He did not acknowledge any hallucination or delusion as such. He was diagnosed withs schizophrenia, and was treated with Olanzapine and later Fluanxol Depot, with limited improvement.”

19. A review of Connecting Ontario database indicated psychiatric medications being dispensed from 2012 to 2018. The last dispensing of flupentixol (injectable depot form) was 2018.

20. Mr. Kwan was found incapable of consenting to treatment of his psychiatric illness on October 28, 2025. His sister acts as his substitute decision maker.

21. Mr. Kwan was started on Fluanxol, which he had been on previously. He showed minimal improvement. Therefore, his medication was changed to olanzapine. As Mr. Kwan’s dose of olanzapine increased, his level of disorganization improved. He was able to participate in basic assessments, in English and Cantonese. He was able to speak about the alleged offence and his history of schizophrenia. However, he remains unable to answer all of the Taylor test questions and his thinking remains disorganized.

22. Due to his relative stability, he was moved to the general forensic unit, FPRU, on November 25, 2025.

Oral Evidence at the Hearing

23. Dr. Arnold testified that she is working under the supervision of Dr. Mark Pearce. She last assessed Mr. Kwan this morning and found that he is unable to stand trial.

24. Mr. Kwan has an interpreter available during his assessments. Despite encouragement to use the interpreter, he tends to respond in English before the interpreter can interpret. During this morning’s assessment of Mr. Kwan, he was able to identify the charge against him. When asked how he would plea, Mr. Kwan made statements about not having a car, finding a dead body, and the body starting to stink. These statements were made despite multiple redirections. He identified the role of the judge as the one who puts the charges on him. He was aware that if found guilty he could be sentenced to jail and if found not guilty he would be released.

25. Dr. Arnold opined that Mr. Kwan would have difficulty instructing counsel and meaningfully participating in a trial due to his thought disorganization. In recent months, Mr. Kwan has been more organized when talking about superficial topics, such as how he is doing. Last week when Dr. Arnold assessed Mr. Kwan, he was only able to correctly answer one question about roles of persons in the court room. So, even within this past week there has been some improvement in his fitness. However, when his legal situation is discussed, he remains disorganized even when fitness coaching is done.

26. Dr. Arnold stated that there have been no incidents of concern in hospital. Mr. Kwan is taking his medication, though he does have a lower lip tremor. He has exercised his passes appropriately.

27. Dr. Arnold testified that, if the Board finds Mr. Kwan unfit to stand trial, Mr. Kwan will continue to be treated with Olanzapine at the current dose. If this is not sufficient to ultimately restore his fitness, then the hospital will trial him on clozapine.

28. Dr. Arnold testified that the conditions proposed by the hospital are the least onerous and least restrictive. Community living has not been proposed since Mr. Kwan may be fit to stand trial within this year before a community living provision could be exercised.

29. In response to questions of the Crown, Dr. Arnold testified that the hospital has reason to hope that Mr. Kwan will become fit in the coming year. Either she or Dr. Pearce will see Mr. Arnold at least every two weeks and continue to assess his fitness.

30. In response to a question from the Crown, Dr. Arnold noted that term (d) on page 10 of the Hospital Report should state “150-kilometer radius” rather than 50 and she adjusts her initial position accordingly. All other parties confirmed their agreement to that term at this point in the hearing.

31. In response to questions of Mr. Berman, Dr. Arnold testified that Mr. Kwan has remained calm, pleasant, and cooperative in hospital.

32. In response to questions from the Board, Dr. Arnold testified that she is satisfied that language has not been a barrier to her assessing Mr. Kwan’s fitness. Last week and again during this morning’s assessment, the interpreter was present.

33. Dr. Arnold stated that the recommendation in term (d) for 12-hour passes is to allow Mr. Kwan to engage in rehabilitation programming in the community. This would not start until he is able to use shorter passes without issue.

34. His sister has not applied to be an Approved Person. His sister is his substitute decision maker.

35. Dr. Arnold testified that it may be worthwhile to do cognitive testing once Mr. Kwan’s psychotic symptoms are better treated.

Analysis and Conclusion

FITNESS TO STAND TRIAL

36. The Board has carefully considered the documentary and oral evidence of Dr. Arnold and unanimously concludes that Mr. Kwan remains unfit to stand trial. The Board has the benefit of the recent Supreme Court of Canada decision in R v Bharwani, 2025 SCC 26, at para 6:

“[A]n accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes 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. The capacity required to make those decisions is 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. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. 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.”

37. The panel is cognizant of the serious consequences of a finding of unfitness to stand trial, including the loss of the accused’s liberty, and appreciates that such a finding must not be made lightly (Bharwani, 2025 SCC 26 at para. 73). The panel accepted Dr. Arnold’s opinion that Mr. Kwan lacks the ability to meaningfully participate in the court process and instruct counsel. He is not able to answer all of the Taylor Test questions, and most recently perseverated on the fact that he does not have a car when asked fitness questions. However, Mr. Kwan’s fitness to stand trial is improving and fitness assessments will occur regularly.

NECESSARY AND APPROPRIATE DISPOSITION

38. The parties made a joint recommendation with respect to Mr. Kwan’s Disposition. Evidence supports that their joint recommendation is the necessary and appropriate, least restrictive and least onerous Disposition.

39. Mr. Kwan remains symptomatic. His treatment is subject to change depending on his response to treatment.

40. The Board finds that the privileges recommended are appropriate and they provide Mr. Kwan with an ability to attend programs for rehabilitation in the community.

41. The Board has carefully considered s.672.54 of the Criminal Code, which provides guidance regarding the factors to be considered when making a disposition. The Board finds that the necessary and appropriate disposition is a Detention Order at Forensic Service at Ontario Shores Centre for Mental Health Sciences with the privileges and terms as per the joint recommendation of the parties.

DATED this 20^th day of February 2026, at the City of Toronto, in the Toronto Region.

Ms. C. Murray

Legal Member

Office of the Registrar

Ontario Review Board