Re: Dylan Birch, 2026 CanLII 23902

Re: Dylan Birch

ORB File No: 8853

Hearing held on: Friday, January 9, 2026

Place of hearing: Centre for Addiction and Mental Health

Pursuant to: Section 672.47(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. J. Weinstein

Members: Dr. K. Hand

Dr. G. Kerry

Hon. N. Kozloff

Mr. S. Duffy

Parties Appearing:

Accused: Dylan Birch

Counsel: Mr. J. Kopman

The person in charge of hospital: Counsel: Mr. D. Blumenkrans

Attorney General of Ontario: Counsel: Mr. M. Feindel

REASONS FOR DISPOSITION

(Dated March 19, 2026)

Introduction

1. On August 19, 2025, Mr. Dylan Birch was found not criminally responsible on account of mental disorder, on a charge of assault with a weapon, contrary to the Criminal Code of Canada (“Criminal Code”). That finding was based on an assessment, and related report, by Dr. Wilkie, dated July 8, 2025.

2. The court did not make a Disposition and ordered, pursuant to s. 672.47(1) of the Criminal Code, that Mr. Birch be detained at the Centre for Addiction and Mental Health (“CAMH”), once a bed becomes available, pending a Disposition of the Ontario Review Board (the “Board”).

3. On January 9, 2026, the Board convened a hearing at CAMH to make an initial Disposition.

4. Mr. Birch was present at the hearing and was represented by his counsel, Mr. J. Kopman.

5. An initial Hospital Report, dated December 3, 2025 (the "Hospital Report"), was entered as Exhibit 1.

6. The issues at this hearing were whether Mr. Birch is a significant threat to public safety, as defined in s. 672.5401 of the Criminal Code, and, if so, what is the necessary and appropriate Disposition in the circumstances, bearing in mind the factors enunciated in s. 672.54 of the Criminal Code.

7. For the reasons set out below and based on the evidence before us, the Board concluded that Mr. Birch presents as a significant threat to public safety. The Board found that his risk can be properly managed with a Detention Order at CAMH, on the terms and conditions set out in our formal Disposition.

8. The highest level of privilege set out in this Disposition allows Mr. Birch to enter the community of the Greater Toronto Area, indirectly supervised.

9. The Board further ordered that Mr. Birch abstain from alcohol and non-medically prescribed substances and submit random urine samples to assess same. It also prohibited him from possessing weapons.

Current Psychiatric Diagnoses

10. Schizophrenia

Substance Use Disorder

Attention Deficit Hyperactivity Disorder

Autism Spectrum Disorder

Index Offence

11. The circumstances giving rise to the Index Offence are extracted from the Hospital Report, as follows:

“On Wednesday, January 31, 2024, at approximately 3:05 PM, the victim was on board a TTC Subway car when he observed an unknown male approach him and struck him with what appeared to be a switch blade, which hadn't properly opened, in the face. The accused subsequently fled the scene upon Police arrival.”

Mr. Birch’s Self-Report of the Index Offence

12. Mr. Birch provided multiple, conflicting accounts of the Index Offence during interviews. He admitted to carrying a switchblade for personal defense and stated that he was under the influence of alcohol and drugs, including speedballs, cocaine, and crystal meth, at the time. He claimed that his memory of the day was fragmented, describing the victim as a "Japanese boy" who he believed was a voice in his head. Mr. Birch stated that he attacked the victim because he felt vulnerable and was responding to perceived threats, including delusions involving the government and other figures. He also mentioned hearing voices and experiencing temporary psychosis. Mr. Birch expressed regret, calling his actions "foolish" and attributing them to substance use and psychosis.

Background History

13. Mr. Birch’s childhood and family history, education history, employment history, psychiatric history, and substance abuse history are outlined in detail in the Hospital Report. They can be summarized as follows:

a) Childhood and Family History

Mr. Birch was born in Almonte, Ontario and moved frequently during his childhood. By the age of 16, he had lived in Arnprior, Ottawa, Toronto, Peterborough, and British Columbia. His parents divorced when he was 13, partly because of his mother's mood symptoms and her difficulty managing his behavior. After the divorce, he lived with his mother in New Brunswick for a year, before moving to Ottawa to live with his father. His mother is a teacher in Connecticut and has a daughter with her second husband. His father works with children with developmental disabilities and is also remarried. Mr. Birch does not maintain contact with his father.

Mr. Birch had difficulty knowing what to do without clear instructions and purpose. His father noted that Mr. Birch's behaviour became increasingly challenging as he grew older, and his mother had less contact with him after the divorce. Mr. Birch reported that his father sexually assaulted him and called him "Sally," but he denied any history of physical abuse. The Children’s Aid Society was not involved with his family.

b) Education History

Mr. Birch was diagnosed with autism and ADHD while in elementary school. He attended special classes and struggled academically, failing some grades. He was suspended in third grade for disruptive behavior but was never expelled.

In high school, he was frequently truant in grade 10 and engaged in minor misconduct, such as stealing and setting fires. He completed high school with the help of an Individualized Education Plan (“IEP”) because of deficits in his speed of processing.

He attended Algonquin College for two years, studying welding. He left because of challenges with mental illness.

Employment History

Mr. Birch worked mostly in retail, in behaviours including a seven-year position at Canadian Tire, in Pembroke. He lost jobs because of behaviours that may have been caused by noncompliance with psychiatric medication and related challenges. He has been supported financially by Ontario Disability Support Program (“ODSP”) in recent years. Mr. Birch also reported selling drugs, earning up to $2,000 per week.

c) Psychiatric History

Mr. Birch was diagnosed with ADHD and autism spectrum disorder (previously Asperger’s syndrome) during elementary school. His symptoms included inattention, distractibility, hyperactivity, difficulty with social cues, and obsessive behaviors.

In early adolescence, he began taking stimulant medication for ADHD and sertraline for anxiety and depression. He experienced paranoia and involvement in conspiracy theories, starting in 2021.

He was hospitalized on at least ten occasions for psychiatric reasons, including in New Brunswick and at major hospitals in Toronto. His diagnoses included schizophrenia, major depressive disorder, PTSD, ADHD, generalized anxiety disorder, mild intellectual disability, and paranoid delusions.

d) Substance Abuse History

i. Alcohol

Mr. Birch began drinking at age 17, consuming up to three bottles of vodka daily. He reported being intoxicated every day since his teen years, at one point drinking six beers and 42 oz of alcohol daily. He experienced withdrawal symptoms, including tremors and "nervous breakdowns," and was hospitalized more than six times because of alcohol-related issues. Alcohol use exacerbated his paranoia and psychotic symptoms, including sexualized auditory hallucinations. Before the Index Offense, he reported consuming 15 beers daily.

ii. Cannabis

Mr. Birch started using cannabis at age 16, initially claiming to smoke 30 oz daily, but he later clarified it was one to two joints per day (approximately 14 grams). Cannabis use reportedly caused memory issues and confusion.

iii. Other Substances

Mr. Birch experimented with crack cocaine (twice), crystal methamphetamine (three times), fentanyl, heroin, PCP, mushrooms, and LSD. He reported using LSD twice weekly before the Index Offense and claimed psychological dependency. He abused over-the-counter Tylenol in the past.

iv. Drug Dealing

Mr. Birch sold drugs, primarily crystal methamphetamine, earning up to $2,000 per week.

Course Since NCR Finding

14. On August 19, the court issued a Warrant of Committal, ordering Mr. Birch’s transfer from Toronto South Detention Centre (“TSDC”) to CAMH or to a designated forensic hospital, upon a bed becoming available. Mr. Birch remained at the TSDC because of a chronic bed shortage at CAMH, until he was admitted to the Forensic Assessment and Triage Unit, on October 20, 2025.

15. Mr. Birch’s course since his NCR finding is set out in detail in the Hospital Report. The following extracted paragraphs are relevant to this hearing:

“Upon admission, Mr. Birch presented as calm and cooperative. He was agreeable to continue taking his long-acting paliperidone injection.

Mr. Birch’s mental status remained fairly stable, though on occasion he appeared perplexed, displayed some mild cognitive disorganization, and would engage in some odd behaviour. His self-report was not the most reliable as he would typically deny hearing auditory hallucinations, yet nursing staff would observe him responding to internal stimuli.

Mr. Birch on occasion would make some inappropriate sexual comments. There was concern from the team that Mr. Birch was med seeking and utilizing too much lorazepam.”

Position of the Parties

16. Counsel for the hospital, for the Attorney General and for Mr. Birch advised that this was a joint submission: all were adopting the hospital’s recommendation of a Detention Order, upon the terms set out in the Hospital Report.

17. Counsel for Mr. Birch advised that significant threat was not in dispute, for the purpose of this hearing.

Evidence at the Hearing

18. The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Kung. Dr. Kung co-authored the Hospital Report, and she testified as follows:

a) The Invega Trinza has been switched to Invega Sustenna 150 mg IM, every 4 weeks. This is the same antipsychotic medication but a different long acting injection formulation. This formulation change will allow more flexibility to adjust the medication as needed.

b) Mr. Birch is tolerating his medication regimen well. His mental status has remained relatively stable, although he does continue to experience active symptoms of his psychosis.

c) The treatment team would like Mr. Birch to engage in substance relapse prevention programming. They are aware of Mr. Birch’s substance use, and his ability to remain abstinent will play a factor as he progresses through the privilege ladder at CAMH.

d) While Mr. Birch’s insight into his diagnosis of schizophrenia is limited, he has been accepting of, and cooperative with, his medication regimen. When discussing his diagnosis of schizophrenia with his treatment, he has been more receptive to this diagnosis. He is deemed to be capable to consent to treatment with anti-psychotic medication.

e) The treatment team needs to optimize Mr. Birch’s medication regimen, as he is still experiencing auditory hallucinations.

f) Mr. Birch is not always forthcoming with the treatment team. They hope to build a therapeutic alliance with him, so that he becomes more open to describing the symptoms he is experiencing.

g) The treatment team will take Mr. Birch’s Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder diagnoses into consideration when engaging with him in psychological and therapeutic programming.

h) As set out in the Hospital Report, Mr. Birch has not had contact with his family for some time, nor does he wish to do so.

19. In response to questions from counsel for the Attorney General, Dr. Kung testified:

a) While page 10 of the Hospital Report states that, according to collateral information, Mr. Birch “has been chaotic in the past and set a lot of things on fire,” she has not seen any evidence of this behaviour since he has been under her care.

20. In response to questions from counsel for Mr. Birch, Dr. Kung testified:

a) When she stated that Mr. Birch is not a reliable historian, she was referring to the fact that he is quite guarded with her and the treatment team.

b) The treatment team is not relying solely on Mr. Birch’s self-report of experiencing active symptoms of his psychosis when using cannabis as to why he has been diagnosed with a substance use disorder. Mr. Birch has a psychiatric history of being admitted to hospital several times while having been intoxicated. Mr. Birch’s self-report about his substance use can be relied upon, as he is now quite stable and is consistent in his reporting of using cannabis.

c) Mr. Birch has not used substances while in hospital or in custody.

21. In response to questions from the panel, Dr. Kung testified:

a) Mr. Birch is currently on a Forensic Assessment and Treatment Unit, which is a secure unit. He will eventually be transferred to a Secure Forensic Unit.

b) It is reasonable to expect that he could be transferred to a General Forensic Unit within the coming reporting year.

22. No other evidence was called.

Analysis and Conclusions

23. Having heard and considered the entirety of the evidence as well as the submissions from the parties, the Board agrees with the joint submission: Mr. Birch presents as a significant threat to the safety of the public.

24. In Winko, the Supreme Court outlined that, in coming to the conclusion on the issue of significant risk, a Review Board should closely examine a range of evidence, including: the circumstances of the original offence; the past and expected course of the accused’s treatment; the present state of the NCR accused’s medical condition; the NCR accused’s own plans for the future; the support existing for the NCR accused in the community; and most importantly, the recommendations provided by experts who examined the NCR accused. In coming to our conclusion in this matter, the Board relies on the uncontroverted expert evidence of Dr. Kung, in addition to the documentary evidence before us.

25. Mr. Birch’s insight into his diagnosis remains limited. He is unaware of his psychiatric diagnosis. He denies having schizophrenia.

26. Mr. Birch has limited insight into the connection between his substance use and his mental health issues. Substance use was deeply ingrained in his lifestyle, and it contributed to psychotic symptoms, including delusions and hallucinations. His relapse risk remains high, and formal substance use relapse programming is recommended.

27. Given Mr. Birch’s history of mental illness, previous violent behaviour when unwell, and high-risk assessment scores, he continues to meet the threshold for significant threat, as defined in s. 672.5401 of the Criminal Code. As set out in the Hospital Report, if Mr. Birch were detained on the Forensic Service, his risk of future violence would be moderate. Without the oversight of the Board and external controls, his risk of future violence would be high. His risk of imminent violence is low.

28. Mr. Birch has a history of non-adherence with treatment. He suffers from a major mental illness and continues to display some active symptoms of psychosis. The hospital is still considering further optimization of his medication regimen.

29. Mr. Birch has attended some programming on the unit, but he would benefit from attending ongoing psychoeducation programs, dealing with symptom identification and management, and behavioural and emotional regulation.

30. In particular, the Board relies on the Re-offence Scenario set out in the Hospital Report:

“In risk assessment, one of the best predictors of future violence is a patient’s history of violence. If Mr. Birch were to reoffend, it would likely be in the context of psychotic symptoms due to non-compliance to medication, substance use, or stressors leading to psychotic decompensation. In the absence of external monitoring, he will likely disengage with services due to his poor insight, become non-compliant with medication, and use substances which will increase his risk of relapsing into a psychotic episode, similar to his mental state at the time of the index offence.”

31. In light of the Board's finding of significant threat, it is charged with shaping a Disposition for the coming year. The Board notes that the hospital is not currently recommending that Mr. Birch be allowed to live in the community in accommodation approved by the person in charge. He has limited social supports.

32. The treatment team would need to retain authority to approve housing for Mr. Birch in order to protect the safety of the public, to make sure he remains adherent to his medication and abstinent from substance use, as well as to monitor his mental stability.

33. For all the above reasons, Mr. Birch is best managed under a Detention Order.

34. 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. Birch, his reintegration into society and his other needs, the necessary and appropriate Disposition is a Detention Order.

DATED this 19th day of March, 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