Re: Kemar Clarke
ORB File No: 8897
Hearing held on: Wednesday, January 7, 2026
Place of hearing: Waypoint Centre for Mental Health Care
Pursuant to: Sections 672.47(1) 672.48(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. C. Finley
Members: Dr. R. Wood Hill Dr. G. Stones Ms. C. Murray Mr. J. Cyr
Parties Appearing:
Accused: Kemar Clarke Counsel: Mr. V. Zenobio
The person in charge of hospital: Representative: Mr. J. Thomson
Attorney General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DISPOSITION
(Dated January 15, 2026)
Introduction
On October 23, 2025, Kemar Clarke was found unfit to stand trial on charges of indecent act and disobey court order, contrary to the Criminal Code of Canada. Mr. Justice Waby declined to make a disposition and referred Mr. Clarke to the Ontario Review Board (“ORB”/“the Board”) for an initial hearing. Mr. Clarke was transferred to the Waypoint Centre for Mental Health Care (“Waypoint”/“the hospital”) pursuant to a Warrant of Committal dated October 23, 2025.
On January 7, 2026, the Board convened a hearing pursuant to s. 672.47(1) of the Criminal Code. Mr. Clarke was present and represented by his counsel, Mr. Zenobio.
At the outset of the proceedings, all counsel submitted that Mr. Clarke remains unfit to stand trial, and the necessary and appropriate disposition is a detention order at the High Secure Provincial Forensic Program at Waypoint.
Findings
- For the reasons that follow, the panel found that Mr. Clarke remains unfit and the necessary and appropriate disposition is a detention order at the High Secure Provincial Forensic Program at Waypoint.
The Evidence
- The evidence at the hearing consisted of the Hospital Report, dated December 9, 2025 (ex. 1), and the viva voce evidence of Dr. Bunker, Mr. Clarke’s treating psychiatrist.
The Alleged Index Offences
- It is alleged that on May 15, 2025, Mr. Clarke was masturbating outside of the Salvation Army in Barrie. Staff inside the building contacted police. At the time, Mr. Clarke was subject to a probation order.
Background Information
The Hospital Report contains some information about Mr. Clarke’s personal background and psychiatric history. Unfortunately, there are few sources of information and Mr. Clarke’s self-report is limited and considered unreliable. Having said this, Mr. Clarke is a 34-year-old man who was born and raised in Toronto. During his high school years, his behaviour changed after he began smoking cannabis and drinking alcohol. There is some suggestion that he was expelled for inappropriately touching a female subject, which Mr. Clarke has denied. He was expelled from a Humber College culinary course after getting into a fight with a female student. Mr. Clarke is currently supported by the Ontario Disability Support Program.
Mr. Clarke has a significant criminal record, which is included in the Hospital Report. There are multiple convictions for sexual assault, threatening behaviour and failing to comply with court orders.
Mr. Clarke’s first psychiatric admission was in 2010 when he was taken to hospital after an argument with his stepfather. He was admitted pursuant to a Form 1 under the Mental Health Act. He was diagnosed with an Adjustment Disorder with disturbance of emotion and conduct, and Cannabis Abuse and discharged.
In the fall of 2012, Mr. Clarke was admitted to the Royal Ottawa Healthcare Group for almost two months following a referral from a psychiatrist at the Central North Correctional Centre. At the time, Mr. Clarke was experiencing auditory hallucinations and exhibiting bizarre behaviour, including masturbating in his cell for hours at a time. He was treated with antipsychotic medication and discharged with diagnoses that included First Episode Psychosis, Probably Schizophrenia – mixed type, rule out Schizoaffective Disorder, Alcohol and Cannabis Abuse, Adult Antisocial Behaviour, and possible Antisocial Personality Disorder.
Over the next two years, Mr. Clarke had a number of hospital admissions. On two occasions in 2013, Mr. Clarke had brief admissions to Scarborough Hospital. He was admitted on a Form 1 from the Toronto East Detention Centre. Mr. Clarke had been refusing treatment, not eating, or sleeping, ingesting fecal matter, and refusing to attend court. Upon admission, he was uncooperative, selectively mute and endorsed auditory hallucinations with commands to kill himself. On both occasions, his treatment with antipsychotic medication was resumed, his mental status stabilized, and he was discharged back into custody.
In the fall of 2015, Mr. Clarke was found unfit to stand trial and admitted to Waypoint pursuant to a Treatment Order. He was initially disorganized, suspicious, and guarded. However, with treatment, he became organized and eventually determined to be fit to stand trial.
In May 2021, Mr. Clarke was admitted to CAMH pursuant to a Treatment Order. Although he was compliant with medication, he required seclusion twice during his 30-day admission. Mr. Clarke continued to require brief admissions to hospital to resume treatment. Noncompliance with treatment, both medication and follow-up care in the community, were factors leading to a decompensation in his mental state.
In the fall of 2024, Mr. Clarke was admitted to Waypoint for an assessment of his fitness on charges of uttering a threat, failing to comply with probation and failing to comply with a recognizance and two counts of assaulting peace officer. Upon admission, Mr. Clarke displayed significant thought disorder, psychomotor retardation, and blunted affect. He was agitated, responding to internal stimuli, and had difficulty following directions. When he was noncompliant with treatment, he required periods of seclusion to manage his risk. Once he was found fit to stand trial, all charges were withdrawn.
Shortly before the alleged index offences, Mr. Clarke transferred from the Toronto South Detention Centre to CAMH pursuant to a Form 1. While being transported to hospital, he became combative and required four-point restraints. A Code White was called on admission and he was placed into seclusion. He exhibited unpredictable and disorganized behaviour. He was guarded, internally preoccupied, and nonsensical. Throughout most of this admission, Mr. Clarke displayed disorganized behaviour and had extreme difficulty following direction. During one trial out of seclusion, he made sexual gestures at female staff. He was treated with long-acting antipsychotic medication, stabilized, and discharged back to the detention centre.
Following his arrest for the alleged index offences, Mr. Clarke was held at the Toronto South Detention Centre. Mr. Clarke continued to be distracted and disorganized. On June 19, 2025, Mr. Clarke was noted to be disruptive, uncooperative, and was sexually disinhibited. The psychiatrist attempted to see him on two occasions; however, he was masturbating. His diagnosis was schizoaffective disorder, bipolar type. Mr. Clarke was seen a week later and continued to present as disorganized, and labile. He was unable to engage in a coherent conversation and was described as “floridly psychotic”. For the most part, he accepted his injectable medication; however, he often refused PRN or oral medication despite encouragement from staff.
Mr. Clarke was found unfit to stand trial and admitted to Waypoint on August 26, 2025, pursuant to a Treatment Order. Within hours of his admission, Mr. Clarke’s calm presentation deteriorated to the point where he struggled to focus and engage meaningfully in conversation. Mr. Clarke stated that he would not take any medications. It was determined that a seclusion order was required.
Notwithstanding his stated position, Mr. Clarke ultimately has complied with medication, including as-needed medications. On September 24, 2025, it was determined that seclusion was no longer necessary to manage Mr. Clarke’s risk for violence.
On October 7, 2025, Mr. Clarke was placed back in seclusion after he threatened to assault staff. On October 20, 2025, that order was suspended to allow for him to attend a court appearance. The escorting officers reported that during the transport, Mr. Clarke had been agitated and angry and had threatened to assault them. Upon his return, Mr. Clarke was placed back in seclusion.
Dr. Bunker testified before the Board. She indicated that Mr. Clarke has a diagnosis of Schizoaffective Disorder, bipolar type. Unfortunately, after several months of fairly aggressive treatment, Mr. Clarke remains unfit to stand trial. Her most recent assessment was the day before the hearing. During most of the interview, Mr. Clarke appeared to be internally preoccupied, and they could not have much of a discussion. He was unable to appreciate the role of his counsel or the role of the judge.
Dr. Bunker reported that she formally found Mr. Clarke incapable of consenting to treatment and his mother is now his Substitute Decision Maker (“SDM”). The doctor anticipates changes to Mr. Clarke’s medication.
At this point, Mr. Clarke remains unwell. In Dr. Bunker’s opinion, he requires a detention order at Waypoint in the High Secure Provincial Program. He has a long history of assaultive and aggressive behaviour, likely stemming from his inadequately treated psychotic symptoms. He has threatened to kill staff multiple times and has been aggressive with his environment, even as recently as a few days prior to the hearing. Mr. Clarke remains a significant risk for violence. Dr. Bunker does not believe that he could be managed in a less-secure facility.
Mr. Clarke remains in seclusion. Staff have noted a gradual improvement, and the doctor is optimistic that Mr. Clarke will be out of seclusion soon. He has been exercising seclusion relief without restraints and has been doing quite well. Dr. Bunker indicated that Mr. Clarke is quite sensitive to stress, particularly when involved in legal proceedings. She will assess Mr. Clarke’s mental status following the Board’s hearing.
Dr. Bunker noted that Mr. Clarke has been the subject of a Treatment Order four times over the last ten years. On each occasion, he was returned to fitness within the sixty-day order. Mr. Clarke is now older and has received treatment only intermittently. As a result, his illness is more severe and consequently more difficult to treat. Dr. Bunker repeated that some improvement has been noted and she hopes that seclusion soon will not be necessary.
When asked by Mr. Zenobio about the possibility of Mr. Clarke residing with his mother, Dr. Bunker indicated that in a recent conversation, his mother stated that she is happy to continue to be a support to her son. However, she is very clear that, unless his illness is well managed, she is not comfortable having him in her home.
At the conclusion of the evidence, all parties maintained the joint submission.
Analysis and Conclusion
- The panel carefully considered the Hospital Report and the evidence of Dr. Bunker and concluded that Mr. Clarke remains unfit to stand trial. In the recent Supreme Court of Canada decision in R v Bharwani, 2025 SCC 26, the Court outlined the test for fitness to stand trial, 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.”
Mr. Clarke has a diagnosis of Schizoaffective disorder, Bipolar type. He has a long history of noncompliance with medication which has made treating his psychotic symptoms more difficult. He continues to experience auditory and visual hallucinations and remains internally preoccupied. As a result, it is difficult to have conversation with him. Dr. Bunker assessed him for fitness shortly before the hearing date and found him unable to meet the test as established in Bharwani. Mr. Clarke would not be able to make and communicate reality-based decisions. He remains overwhelmed with his psychotic symptoms. As such, he remains unfit to stand trial.
Mr. Clarke remains in seclusion in the maximum-secure facility. He continues to exhibit aggression and threatening behaviour, regularly threatening to harm staff. The panel accepts Dr. Bunker’s evidence that, at this time, his risk for violence could not be managed in a less-secure facility. Mr. Clarke has recently been determined to be incapable of consenting to treatment, and his mother is his SDM. As a result, Dr. Bunker can discuss further optimizing Mr. Clarke’s medication with her.
Therefore, the panel finds that Mr. Clarke remains unfit to stand trial and the necessary and appropriate disposition, taking into account the factors in s. 672.54 of the Criminal Code, is a detention order at the High Secure Provincial Forensic Program at Waypoint.
DATED this 15th day of January 2026, at the City of Toronto, in the Region of Toronto.
Ms. C. Finley
Alternate Chairperson
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Office of the Registrar
Ontario Review Board