Re: Dalton G. Allen, 2026 CanLII 23907

Re: Dalton G. Allen

Re: Dalton G. Allen

ORB File No: 4244

Hearing held on: Friday, January 9, 2026

Place of hearing: Centre for Addiction and Mental Health

Pursuant to: Sections 672.48(1), 672.81(1) and 672.81(2.1)

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: Dalton G. Allen

Counsel: Ms. S. Feldman

The person in charge of hospital: Representative: Dr. P.L. Darby

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

REASONS FOR DECISION AND DISPOSITION

(Dated March 19, 2026)

Introduction

1. On July 14, 2005, Mr. Dalton Allen was found unfit to stand trial, on a charge of sexual assault, contrary to the Criminal Code of Canada (“Criminal Code”). Mr. Allen is subject to the terms of a Disposition of the Ontario Review Board (“the Board”), dated February 24, 2025, which orders that he be detained at the Forensic Service of the Centre for Addiction and Mental Health, Toronto (“CAMH”).

2. Pursuant to s. 672.56(2) of the Criminal Code, CAMH notified the Board, by letter dated May 1, 2025, that Mr. Allen’s liberty had been restricted: Mr. Allen had been living in the community, and he was admitted on an inpatient basis to the PRTU6, on April 22, 2025. He was discharged on April 30, 2025.

3. On January 9, 2026, the Board convened a hearing at CAMH to conduct the annual review of the current Disposition and to conduct a Restriction of Liberty (“ROL”) hearing.

4. Mr. Allen appeared by Zoom and was represented by his counsel, Ms. S. Feldman.

5. A Hospital Report, and a Restriction of Liberty Report, both dated December 16, 2025 (the "Hospital Report"), were entered as Exhibit 1.

6. When a hospital significantly restricts the liberty of an accused for more than seven days, it has an obligation, under s. 672.56(2)(b) of the Criminal Code, to provide notice to the Board, as soon as possible. Under s. 672.81(2.1), the Board is then required to convene an ROL hearing to review the hospital’s decision. It was agreed that Mr. Allen’s annual review and the ROL would happen concurrently.

7. For the ROL, the issues at this hearing were whether the hospital’s decision to restrict Mr. Allen’s liberty, on April 22, 2025, was warranted, necessary and appropriate at the time, and whether it continued to be so until its conclusion, on April 30, 2025.

8. For Mr. Allen’s annual review, the issues were:

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

b) If Mr. Allen is found fit, he must be sent back to court. If he is found unfit, but not permanently so, 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 he is found to be both permanently unfit and a significant threat, the Board must determine the appropriate Disposition. If he is not found to pose a significant threat to public safety, he must be returned to the court.

9. For the reasons set out below and based on the expert evidence and opinions before us, the Board concluded that the initial restriction of liberty was necessary and appropriate and that it continued to be so, until April 30, 2025. The Board found that this restriction was necessary for public safety, and it represented the least onerous, and least restrictive, intervention available.

10. For the reasons set out below, and based on the evidence before us, this Board has also concluded that Mr. Allen is unfit to stand trial. The Board further found that Mr. Allen is permanently unfit and continues to pose a significant threat to the safety of the public. The Board also found that the necessary and appropriate Disposition required to manage the threat posed to the public by Mr. Allen is a continuation of the existing Detention Order.

Current Psychiatric Diagnoses

11. Schizophrenia

Borderline Intellectual Functioning

Polysubstance Dependence, in sustained remission in a controlled environment

Outstanding Charges

12. The circumstances of the Outstanding Charges are set out in last year’s Reasons for Disposition, dated March 21, 2025:

“According to the police synopsis, the index offence of sexual assault occurred on May 1, 2005. The complainant was working at her hair salon and had stepped out onto the street for a cigarette. Mr. Allen approached her and asked her for a cigarette. The complainant turned to go back into the salon to get him a cigarette when he grabbed her by the shoulders and stated, “Give me a hug.” He then reached around behind her and slapped her on the buttocks. Several individuals who noticed the complainant’s distress came to her assistance and held on to Mr. Allen while the complainant dialed 911.”

Background Information

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

“Mr. Allen studied up to Grade 10, however, his studies were interrupted several times due to the onset of his mental illness at age 15 or 16.

Reportedly, Mr. Allen began drinking alcohol and smoking marijuana at the age of 8 or 9. He progressed to cocaine use in 1989 at the age of 16. In 1993, Mr. Allen was admitted to St. Thomas Psychiatric Hospital for treatment of alcohol and substance abuse.

Mr. Allen had his first psychiatric admission in 1989 at the age of 16 at North York General Hospital, which resulted in a diagnosis of schizophreniform disorder. Shortly thereafter, psychological testing conducted at Whitby Mental Health Centre indicated intellectual functioning within the borderline range.

Mr. Allen was admitted to Sunnybrook on numerous occasions. Mr. Allen was admitted between March 15 and April 3, 1993, due to inappropriate sexual overtures and threats of violence at his group home, which prompted the group home staff to bring him to the emergency department. The staff were very concerned about his sexual innuendos and overtures toward particular staff members at the group home. He became irritable and threatened violence when staff stated that they would not have sex with him.

Following his arrest on the index offence in 2005, Mr. Allen was found unfit to stand trial. He remained under the jurisdiction of the ORB until he was determined to be fit to stand trial. At court, he was once again found to be unfit to stand trial and returned to the jurisdiction of the Board. He remained at CAMH until his discharge in 2016 to highly supported community housing operated by LOFT. He remains at that residence.”

Reasons for Restriction of Liberty

14. The Hospital Report sets out the reason for Mr. Allen’s readmission to CAMH, as follows:

“On the weekend prior to admission on April 22, Mr. Allen called 911 and was taken to Michael Garron Hospital. He complained of insomnia and was given lorazepam. Over the next few days, he became increasingly distressed, indicating he wanted to stop his clozapine because of pain and asking for admission. He complained of a severe headache and was crying. He reported that he had not slept for the last 7 days. He refused to engage with housing staff.

Given the unusual presentation and the difficulty in assessing Mr. Allen due to his severe thought disorder, it was felt prudent to admit him to hospital to assess what might have caused this decompensation and to get him back to his baseline.

Shortly after admission, it was noted that Mr. Allen’s clozapine level was almost undetectable. Historically, Mr. Allen had generally been compliant with medication. It was discovered that agency staff had been on duty over the weekend prior to admission, and they may not have been as diligent in monitoring Mr. Allen's compliance with his medication.

Mr. Allen was restabilized on his clozapine. Liaison continued between the inpatient and outpatient teams. The Forensic Outpatient Service team felt that Mr. Allen had returned to his baseline, although he continued to demonstrate a profound level of thought disorder. He reported that he felt much better and returned to LOFT on April 30, 2025.”

Position of the Parties

15. Dr. Darby, as representative for the hospital and most responsible physician, counsel for the Attorney General and counsel for Mr. Allen advised that this was a joint submission with respect to the ROL: all agreed that the hospital’s decision to restrict Mr. Allen’s liberty, from April 22 to April 30, 2025, was warranted, necessary and appropriate, both at the time, and up to its conclusion.

16. With respect to the annual Disposition, all parties advised that this was also a joint recommendation: Mr. Allen is unfit to stand trial, and permanently so, and he remains a significant threat to the public safety. All parties also agreed that the appropriate Disposition is a continuation of the existing Detention Order.

17. Counsel for the Attorney General advised that Mr. Allen’s last prima facie hearing was June 26, 2025.

Course Since Last Disposition

18. Mr. Allen’s course since his last Disposition is set out in the Hospital Report. The following extracted paragraphs are relevant:

“Mr. Allen continued to reside at O’Connor Drive. The housing is operated by LOFT community services with 24/7 staffing – (3 during the day, 3 in the evenings and 2 on nights). He has a bachelor apartment with his own bathroom and appliances. Mr. Allen expresses satisfaction with his housing.

On Aug 28, 2025, when Mr. Allen’s mother was visiting Mr. Allen at LOFT, she informed the case manager that during Mr. Allen’s overnight pass in Christmas 2024, he chose to sleep on the couch. The following morning, Ms. Allen found a kitchen knife under his pillow. When confronted, he denied taking the knife from the kitchen and attempted to shift blame to his mother. She stated she did not disclose the incident to other family members present at the time and warned Mr. Allen not to repeat such behaviors.”

Evidence at the Hearing

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

a) On April 22, 2025, Mr. Allen was admitted to PRTU-6 on an inpatient basis and discharged on April 30, 2025.

b) This hospitalization was primarily intended to ensure Mr. Allen’s return to his baseline condition and to address his physical health concerns. During this period of admission, Mr. Allen was re-stabilized on his prescribed medication and discharged from hospital once he returned to his baseline.

c) He would describe Mr. Allen as having one of the most severe levels of thought disorder he has ever encountered, with loose associations and neologisms that make coherent conversation nearly impossible.

d) The severity of Mr. Allen’s presentation contributed to the decision to restrict his liberty, for both his wellbeing and public safety.

e) Mr. Allen continues to pose a significant threat to the safety of the public.

f) As set out in the Hospital Report, Mr. Allen was found with a kitchen knife in his possession and was unable to explain why he had it. As a result of this incident, Mr. Allen’s mother did not feel comfortable having him stay at her residence for more than a few hours this past Christmas (2025).

g) Mr. Allen has been in the community for nearly 10 years without significant incidents. However, the hospital continues to consider him a significant threat to public safety because of the difficulty of assessing his mental status and the recent incident with his mother, described in paragraph 18 of these Reasons.

h) A Detention Order is necessary primarily for Mr. Allen’s wellbeing. He occasionally refuses his clozapine medication. If he were to miss more than a couple of days of this medication, he would need to be returned to hospital, so that the medication could be re-titrated and his baseline re-established. The Mental Health Act could not be used to protect public safety solely because of missed medication.

i) Mr. Allen’s mother is his Substitute Decision Maker and is quite involved in his care. The treatment team has a very good working relationship with his mother.

20. No other evidence was called.

Analysis and Conclusions

Fitness to Stand Trial

21. The first issue for the Board to decide is whether Mr. Allen remains unfit to stand trial.

Applicable Law

22. The Supreme Court of Canada addressed the fitness test, most recently in R v Bharwani, 2025 SCC 26 (“Bharwani”). In this decision, the Supreme Court emphasized the following with respect to the fitness test:

a) Fitness to stand trial does not require an accused to make decisions in their best interests. Instead, “it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder.”¹

b) The accused is fit to stand trial if they can: “make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so”² and “intelligibly communicate these decisions to counsel or the court.”³

c) Conducting a defence involves: “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.”⁴

d) The “capacity” required to make these decisions includes: “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.”⁵

e) “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.”⁶

f) The fitness to stand trial test is “contextual,” and the inquiry: “focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.”⁷

g) The same test for fitness to stand trial applies to all accused, whether they are represented by counsel or not.⁸

The Court further stated, at paragraph 67 in Bharwani:

“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.”

Determination on Fitness

23. Having heard and considered all of the evidence and submissions from the parties, the Board agrees with the joint submissions of the parties: Mr. Allen is unfit to stand trial. Mr. Allen 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. His mental health symptoms cannot be described as transient.

24. Mr. Allen’s mental health disorder does compromise his ability to conduct a defence, and it would impair his understanding of reality when making, or communicating, decisions in his defence.

Fitness and Permanent Unfitness

25. In particular, the Board relies on the following extracted paragraphs from the Hospital Report, and Dr. Darby’s evidence, to find Mr. Allen permanently unfit:

“Repeated attempts to explore Mr. Allen’s understanding of the index offense and fitness issues have been undertaken. Mr. Allen is unable to respond in a meaningful way due to his profound thought disorganization and delusional thinking. He is not able to understand the questions in their proper context and responds with idiosyncratic answers heavily impregnated with delusional material. Most importantly, his formal thought disorder impedes any further exploration and clarification.

When asked whether he was charged with anything, he becomes visibly angry, talking in a pressured manner with his voice raised. He cannot explain what he was charged with. He rambles incoherently when asked about the nature and objects of the current charges, pleas available and likely consequences. He becomes irritable when “the Court” is mentioned. The only clear message was that he has nothing to do with the Court or the ORB.

Overall, due to his profound thought disorder and profuse delusional interpretation, Mr. Allen has been judged to be unable to instruct counsel or participate meaningfully in the court process. He thus remains unfit to stand trial. Furthermore, since symptoms have only showed partial responses to clozapine and have not responded to ECT, the chance that his mental condition will improve to the extent that he could be considered fit to stand trial can be reasonably considered as infinitesimal.”

Significant threat

26. Having found Mr. Allen permanently unfit, the Board agrees with the joint submission that he remains a significant threat to the safety of the public.

27. 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. Darby, in addition to the documentary evidence before us.

28. Mr. Allen’s symptoms are considered treatment refractory. Active symptoms persisted over the last few years, despite the maintenance of his antipsychotic medication within a therapeutic level, for an extended period of time. Mr. Allen requires ongoing, supervised treatment with antipsychotic medication, and regular medication level testing, to ensure that levels remain therapeutic.

29. The current supervision level at his current residence is considered necessary and appropriate for Mr. Allen to remain safe in the community. For these reasons, a Conditional Discharge is not realistic, and a Detention Order is necessary and appropriate to protect public safety.

30. In particular, the Board relies on the following extracted paragraphs from the Hospital Report:

“Clinical Risk Factors/Re-offence Scenario

Many of Mr. Allen’s risk factors are historical, including relationship instability, employment problems, polysubstance dependence (currently in sustained remission in a controlled environment, early maladjustment, a significant history of violence, and serious prior supervision failures.

Mr. Allen continues to experience active symptoms of schizophrenia, and, despite ongoing treatment with high doses of antipsychotic medication, these symptoms have persisted. In the past, when Mr. Allen has experienced active symptoms of his illness, he has sometimes evidenced verbal and physical aggression as well as sexually disinhibited behavior. Over the past year, some occasions of verbal aggression have been reported. His illness can be characterized as treatment resistant and, despite treatment with high doses of clozapine, Mr. Allen continues to evidence pronounced residual symptoms including pervasive thought disorder, auditory hallucinations, paranoid and religious delusions, as well as intermittent periods of agitation and verbal aggression towards staff.

Mr. Allen’s current and projected risk factors can be understood as largely stemming from his ongoing active symptoms of schizophrenia. He exhibits an enduring lack of insight in his understanding of his mental health issues and need for medication, and he denies having committed his index offence and being under the auspices of the ORB. Mr. Allen has asserted that he believes he does not have schizophrenia and therefore does not require medication, and that he feels it is a great injustice that he is required to take medication. Though he has generally taken his medication as directed over the past year, there have been several instances of his having temporarily refused medication and/or been verbally aggressive with staff when they attempted to administer his medication.

In regards to projected risk factors, it is noted that Mr. Allen’s future plans, though not fully articulated, are not feasible due to his thought disorder and the possible impact of delusional content (e.g., he believes that he still has an apartment in the community and has stated that he wants to return there). Based on his behavior over the reporting year, some stressors and destabilizers requiring clinical support remain relevant concerns, particularly in the context of his possible impulsivity and psychomotor excitability caused by the ongoing psychotic symptoms. These include the following: medication compliance, related discussions with staff regarding Mr. Allen’s need for medication, mental health issues, index offence, or ORB disposition. Mr. Allen will require ongoing monitoring and support to cope effectively with these potential stressors. Finally, though Mr. Allen’s mother constitutes an important social support, Mr. Allen has no other known personal supports.

If Mr. Allen were to re-offend, it would likely occur in the context of ongoing psychotic symptoms, substance abuse, and/or non-compliance with antipsychotic medication. Absent optimized treatment with clozapine and intensive, sustained professional supports, he may become more aggressive, with a significant risk of violence, including sexual assault.

Given Mr. Allen’s severe illness, his profound thought disorder and lack of insight, protective factors are limited to external ones; the professional care, living circumstances and external control provided by the oversight of the ORB and his clinical team.”

31. The Board agrees a Restriction of Liberty has taken place, pursuant to the decision of the Ontario Court of Appeal in R vs MLC (2010 ONCA 843) as well as Regina vs Campbell (2018 ONCA 140). The Board has also concluded, based on the evidence before us, that the hospital’s decision to significantly restrict Mr. Allen’s liberty, by readmitting him on April 22, 2025, and keeping him in hospital until April 30, 2025, was warranted and necessary, for the reasons set out in the Hospital Report.

32. 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. Allen, his reintegration into society and his other needs, the necessary and appropriate Disposition is a continuation of his Detention Order.

DATED this 19th day of March, 2026, at the City of Toronto, in the Region of Toronto.

Mr. J. Weinstein

Alternate Chairperson

__________________

Office of the Registrar

Ontario Review Board

Footnotes

1. 1Bharwani, supra, at para. 6.
2. 2Ibid.
3. 3Ibid at para. 77.
4. 4Ibid at para. 6.
5. 5Ibid.
6. 6Ibid.
7. 7Ibid at para. 65.
8. 8Ibid at para. 82.