Re: Mark W. Waweru, 2026 CanLII 32138

Re: Mark W. Waweru

ORB File No: 7056

Hearing of Motion on: March 26, 2026

Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas

Pursuant to: Rule 8.6 – Schedule A, Review Board Rules of Procedure

Before: Alternate Chairperson: Mr. P. Capelle Members: Dr. R. Kunjukrishnan (via Zoom) Dr. S. Wiseman Ms. C. Murray Mr. A. Mete

Parties Appearing: Accused: Mark W. Waweru Counsel: Self Represented The Person in Charge of Hospital: Counsel: Ms. J. Zamprogna Attorney General of Ontario: Counsel: Ms. K. Dalrymple Amicus: Mr. Stephen Gehl

REASONS FOR RULING

(Dated April 9, 2026)

Introduction:

1. On November 17, 2016, Mark Waweru was found not criminally responsible on account of mental disorder (“NCR”) on charges of robbery (x2) and utter a threat to cause death or bodily harm, contrary to the Criminal Code of Canada (“Criminal Code”). Mr. Waweru is currently subject to a Disposition of the Ontario Review Board (the “Board”) dated March 21, 2025, detaining him at the Southwest Centre for Forensic Mental Health Care (“Southwest” or the “hospital”), with privileges up to and including community living in in Southwestern Ontario with accommodation approved by the person in charge.

2. On March 26, 2026, a panel of the Board convened to hear a motion commenced by Mr. Waweru for an independent psychiatric assessment for the purpose of diagnostic clarification and recommendations.

3. Mr. Waweru was present for the motion, self-represented. Mr. Gehl, Amicus at this motion, assisted Mr. Waweru and the Board throughout the motion.

4. Exhibits were marked as follows:

5. Hospital Report dated January 9, 2026

6. Update to Hospital Report dated March 9, 2026

7. Prehearing Conference Report dated March 13, 2026

8. Memorandum from Mr. Waweru to Amicus, Stephen Gehl, dated March 18, 2026

9. B1/FRU Team Meeting Note “Final Note” regarding Mark Waweru dated January 26, 2026

10. Mental Health Notes dated January 19 to February 3, 2026

Position of the Parties:

5. At the outset of the motion, the parties were asked for their initial without prejudice positions. On behalf of the hospital, Ms. Zamprogna took the position that there is not statutory authority to grant Mr. Waweru’s request. Ms. Zamprogna pointed the panel to common law for consideration. Specifically, she identified two cases, including:

   1. Winko v. British Columbia (Forensic Psychiatry Institute), 1999 CanLII 694 (SCC), [1999] 2 SCR 625 at paragraph 55; and
   2. Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326 at paragraph 42.

6. Ms. Dalrymple supported the position of the hospital on behalf of the Attorney General.

7. Mr. Waweru reiterated his position that he would like an order for an independent psychiatric assessment to clarify his diagnosis and treatment. It was his position that a treatment impasse is not required for an independent assessment to be ordered.

8. Mr. Gehl provided the Board with a copy of Hamblet (Re), 2026 ONCA 9 for consideration.

Finding:

9. For the reasons set out below, the panel orders that the Person in Charge of Southwest shall arrange an independent psychiatric assessment of the accused for the purposes of diagnostic clarification and treatment recommendations to be conducted by a forensic psychiatrist unaffiliated with Southwest. A written report shall be prepared by the assessor and delivered to the Board by Southwest by June 30, 2026.

Index Offences:

10. The circumstances of the index offences of February 6, 2016, are set out in the Hospital Report and, for the purposes of this motion, need not be repeated herein. Mr. Waweru had no previous convictions prior to the commission of the index offences.

Background:

11. Historical information informs the basis of Mr. Waweru’s motion and the position of the hospital and Crown. The Hospital Report and Updated Report outline Mr. Waweru’s background in detail and should be referenced for more fulsome information. In summary, Mr. Waweru is a single 30 year old man. Mr. Waweru’s current diagnoses include schizophrenia and substance use disorder.

12. Mr. Waweru has a history of substance use commencing when he was in university. Substances were likely a precipitating and / or exacerbating component of his first psychotic episode in 2016.

13. Mr. Waweru travelled to Kenya in 2015. In approximately early 2016, Mr. Waweru displayed concerning behaviours resulting in his admission to a hospital in Kenya for 24 hours. He was prescribed medication, the specifics of which are unclear. His psychosis attenuated sufficiently that a family member took him off the medications. He returned to Canada in January 2016 and remained untreated until the time of the index offences.

14. Following Mr. Waweru’s NCR finding on November 17, 2016, he was released from the court on bail and lived in the community with his brother in the Waterloo region. The court did not make a Disposition and deferred the matter to the ORB. At his initial ORB hearing on May 4, 2017, the Detention Disposition permitted Mr. Waweru to live in the community. He continued to reside in the community until September 7, 2017, when he was re-admitted to Southwest following a decompensation in his mental status. In November 2018, Mr. Waweru began residing in the hospital’s transition apartment under the care of the A1 (Rehabilitation Readiness Unit) treatment team, the forensic outpatient treatment team (Outreach), and Dr. Quinn. He was returned to the hospital to unit A1 on April 9, 2019, after testing positive for cannabis. On May 6, 2019, Mr. Waweru was discharged to live independently in an apartment in London. In 2020, Mr. Waweru required a couple of readmissions to hospital due to decompensations in his mental state which were coincidental with his use of cannabis. In approximately January 2024 Mr. Waweru was evicted from his apartment for non-payment of rent and subsequently experienced unstable accommodations. In May 2024, Mr. Waweru was readmitted to hospital. In 2024, his Conditional Discharge was changed to a Detention Disposition. From March 24, 2025, to April 11, 2025, Mr. Waweru was granted a leave of absence to attend Westover Treatment Centre’s in-residence program. He returned, via self-referral, to Westover Treatment Centre’s Stage Two recovery and relapse program from January 4, 2026, to January 9, 2026. At the time of this motion, Mr. Waweru continued to reside on the rehabilitation unit, B1, at Southwest.

15. Social work support was offered to help Mr. Waweru create a plan to address potential barriers or challenges associated with future community placement. Mr. Waweru declined support.

16. Mr. Waweru engaged in frequent substance use up to July 2025. After using substances, he was observed to be pacing, restless, and at times he displayed a labile mood and had difficulty focusing. Mr. Waweru’s privilege levels fluctuated since his readmission to hospital due to substance use and due to bringing contraband into the hospital (nicotine vapes). Since August 2025, Mr. Waweru attends Alcoholics Anonymous (AA) meetings both in hospital and the community. Since that time, all the results of his urine screening for substances have been negative.

17. In July 2025, Mr. Waweru stated that he believed that his schizophrenia had reached full remission and he no longer needed antipsychotic medication. He also believed that his relapses to substance use and impulsive decision-making might have been an adverse effect of his antipsychotic medication. He requested to discontinue antipsychotic medication, ADHD medication and side effect medication. His capacity to make psychiatric treatment decisions was assessed at that time and he was found capable. Medications were, therefore, discontinued.

18. In October 2025, the treatment team noted the reemergence of historical symptoms, including a lack of follow-through regarding tasks and goals, disorganization, ambivalence in accepting support from the treatment team to help with organization and frequently refusing help, perceiving supervision and support from staff as intrusive and coercive, urgency and irritability in his communications with the treatment team.

Viva Voce Evidence at the Motion:

19. Dr. Ardani provided oral evidence at the motion as follows:

    1. He has been Mr. Waweru’s attending psychiatrist since late May 2024. He has diagnosed Mr. Waweru with schizophrenia and substance use disorder, which is consistent with the findings of three psychiatrists prior to the index offences, one psychiatrist during the NCR assessment, and five psychiatrists since Mr. Waweru has been referred to the ORB. The diagnosis has remained consistent amongst all psychiatrists. The psychiatrist in Kenya may have diagnosed Mr. Waweru with psychosis, not otherwise specified.
    2. After reading Mr. Waweru’s motion materials, he believes that Mr. Waweru is confusing the term “diagnosis” with the term “clinical impression” noted on the chart notes as “I+P” (meaning impression plus plan). The diagnoses of schizophrenia and substance use disorder are not ambiguous.
    3. Mr. Waweru’s last antipsychotic long-acting injection of Abilify was July 2025. According to pharmacological literature it takes four to six half lives (four to six months) for the medication to be eliminated from the body. Currently, as the medication is now eliminated from Mr. Waweru’s body, the treatment team is able to observe his baseline presentation and mental state. Since October 2025, he and the team observed a constellation of breakthrough symptoms of schizophrenia such as lack of organization and underlying paranoia. He agrees with Mr. Waweru that he has now returned to his baseline mental status. However, at his baseline mental status Mr. Waweru is symptomatic and requires medication.
    4. He understands that Mr. Waweru believes his hyper-talkativeness is due to enthusiasm and cultural norms but this is just one symptom within a constellation of symptoms that confirm the diagnosis.
    5. Mr. Waweru told Dr. Ardani that he perceived black persons were being treated at CAMH in 2016 with different treatment protocols consistent with “mind control experiments” and placed in units with higher levels of restriction. Dr. Ardani has not found any evidence of this. He opined that Mr. Waweru interpreted his situation while under a treatment order at CAMH in a paranoid fashion. Mr. Waweru told Dr. Ardani that he did not believe that the mental experimentation was happening at Southwest.
    6. He last assessed Mr. Waweru’s capacity to consent to treatment 10 days prior to this hearing and, at that time, found him capable.
    7. Dr. Ardani addressed Mr. Waweru’s belief that his privileges have unjustifiably stagnated. Dr. Ardani encouraged Mr. Waweru to take medication given the team’s observations of breakthrough symptoms. However, since Mr. Waweru is unmedicated, Dr. Ardani advised Mr. Waweru that the hospital could hold privileges (which they did not think was appropriate) or increase the level of supervision. The hospital chose to increase the level of supervision to manage his risk to the public while unmedicated. Once Mr. Waweru agreed to provide an itinerary his indirectly supervised community privileges were increased to 12 hours per day with a 6 hour check-in.
    8. There is not a therapeutic impasse. There are a lot of options to exercise before he would consider there to be an impasse. However, the options will require Mr. Waweru’s cooperation.
    9. The medical notes created by Obed Omoyuma in Kenya were dated January 9, 2016. The notes state that Mr. Waweru was unable to complete his course of education. The notes state that he was admitted to hospital and received an injection. He was discharged against medical advice but was not using substances when the father took him out of hospital.
    10. In response to question of Amicus, Dr. Ardani testified that Mr. Waweru is focused on misdiagnosis and it is affecting everything he does. He agreed with Mr. Gehl that unless this disagreement regarding the diagnosis gets cleared up somehow, it is not likely that Mr. Waweru is moving forward in the forensic system. Mr. Waweru’s presentation has remained consistent for 10 years. When Mr. Waweru hears information that advocates for pharmacological intervention, he thinks it is unnecessary. However, he is not opposed to psychological interventions. Dr. Ardani did not know if it would help for there to be an assessment from a psychiatrist outside of Southwest.
    11. In response to questions of the panel, Dr. Ardani stated that he was unable to disagree with there being therapeutic value to an independent psychiatric assessment because it would impact on his relationship with Mr. Waweru. However, if the Board orders an independent assessment his recommendation would be that the assessment be made by a non-forensic psychiatrist. He stated that there was minimal chance that an independent assessment would make a difference in Mr. Waweru accepting his illness.

20. Mr. Waweru provided oral evidence at the motion as follows:

    1. He would like clarification of his diagnosis and how his symptoms affect the safety of the public. Such an assessment would provide clarity about how to manage his health and reintegrate into society.
    2. He will accept the findings of an independent assessment. If the independent assessor’s opinion on diagnosis is consistent with Dr. Ardani’s then he is willing to accept it because the assessment will be independent and more objective.
    3. He feels that Dr. Ardani has mischaracterized his statements about systemic black issues as paranoia. He disagrees with what Dr. Ardani and the treatment team have told him are symptoms of an illness.
    4. The doctor in Kenya and Dr. Ligate did not diagnose schizophrenia.
    5. When asked why the diagnoses made by nine doctors is not sufficient for him to believe the diagnosis, he stated that the independent assessor wouldn’t be biased to the same degree and that there is more likelihood that an independent assessor would not discount the information he gives to them.
    6. He would prefer the independent assessment to be conducted by a psychiatrist with forensic experience. He stated, “Any reputable psychiatrists who are familiar with the ORB system would be fine with me.”

Submissions

21. Ms. Zamprogna submitted that Dr. Ardani clearly has shown that there is no diagnostic ambiguity. Dr. Ardani explained the difference between diagnosis and impression, which Mr. Waweru has misunderstood. Dr. Ardani agrees that Mr. Waweru has returned to his baseline. At his baseline, Mr. Waweru has symptoms of his illness, which require treatment. Mr. Waweru’s privileges have not been unjustifiably held. In fact, the hospital has allowed privileges with 6-hour check-ins. Ms. Zamprogna stated that there is not a treatment impasse but if progress has been halted, it is due to Mr. Waweru’s discontinuation of treatment. She submitted that Hamblet is a very different fact situation than in this case because the patient in Hamblet was not treatment capable. Ms. Zamprogna closed by saying that the hospital is not staunchly opposed to an independent assessment since there is a question of therapeutic value. However, there would only be a possibility of therapeutic value if the independent assessment were conducted by a non-forensic psychiatrist or one that is not associated with St. Joseph’s Healthcare London.

22. Ms. Dalrymple submitted that there is clarity on the diagnosis and treatment. Nine psychiatrists have provided the same diagnosis. Unfortunately, there is a fundamental unwillingness of Mr. Waweru to accept his diagnosis. She submitted that Hamblet is relevant to this matter and should be considered by the panel.

23. Mr. Gehl submitted that Mr. Waweru has been in the forensic system for 10 years. He has been treated for nine years yet still remains in the hospital. No harm will be done if an independent assessment is conducted. However, an independent assessment could potentially move him forward through the forensic system. Mr. Gehl submitted “Why not” order an independent assessment if there is any chance it will move Mr. Waweru towards reintegration into society after so many years in the forensic system. The only argument against an independent assessment is cost; however, if an independent assessment can help him to move forward even one year quicker toward reintegration into society, then it would be worth many times the cost of an independent assessment.

24. Mr. Waweru submitted that he has not historically contested medication regimens nor does he have an issue with being labelled schizophrenic. This year he is requesting his diagnosis be put to the test because, despite complying with treatment in the past, he is going nowhere in the forensic system. He is concerned that his risk is being improperly assessed if the diagnosis is incorrect. He stated that he needs objective information regarding his diagnosis and treatment so that he can move forward.

Analysis and Conclusions:

25. The panel considered in depth the law relating to Mr. Waweru’s request. A review of the relevant case law provides some guidance to the Board. Mazzei is clear that it is incumbent on the Board to address a clear lack of progress through the forensic system.

26. It cannot be said that Mr. Waweru has experienced no progress; he is making significant gains with respect to his substance use disorder. He attends AA regularly and relies on the benefits of sponsorship. He actively participated in the Westover program and returned for a further stage of the program earlier this year. Despite the commendable gains Mr. Waweru has made in maintaining abstinence, it is clear that Mr. Waweru has not progressed appreciably through the forensic system notwithstanding many years of pharmacological treatment and a commitment to abstinence. In fact, it can be said that he has fallen backward in the forensic system. Following his NCR finding, he enjoyed community living. He flip-flopped from Detention Disposition to Conditional Discharge and back to a Detention Disposition. He now resides in hospital.

27. It is clear is that Mr. Waweru does not at this time accept the diagnosis of schizophrenia he has received from nine different psychiatrists. He struggles with the concept of “impression” versus “diagnosis”. He believes that the doctor in Kenya and Dr. Ligate provided alternative diagnoses. He does not endorse his unmedicated symptomology identified by Dr. Ardani and the treatment team. Despite the best efforts of Dr. Ardani and the treatment team, Mr. Waweru’s course is on hold, or at best progressing very slowly, and may continue on that course until he feels he is assessed in a manner he believes is unbiased, and “receives clarification of the diagnosis and recommended course of treatment”.

28. This Board finds that there is not a treatment impasse. Dr. Ardani was clear that there are other treatment options available that have not yet been explored; though the Board notes that Mr. Waweru’s cooperation would be necessary. Regardless, the Board does not find that a treatment impasse is necessary to order an independent assessment in Mr. Waweru’s circumstances.

29. In Hamblet, the Honorable court at paragraph 16 stated:

There is no reasonable basis to continue the current course of treatment without seeking an independent assessment. Such and assessment can do no harm and may do some good. But something must be done: the appellant cannot continue to languish in seclusion with not real prospect for improvement.

The Board finds that this is a concept applicable in Mr. Waweru’s circumstances, despite Hamblet being distinguishable in many ways from Mr. Waweru’s case.

30. The hospital stated that they are not steadfastly opposed to an independent assessment given that there is question about whether there will be some therapeutic benefit, however remote that benefit may be. This panel agrees that there is a possibility that there may be a therapeutic benefit to Mr. Waweru being assessed by an independent psychiatrist.

31. Given the above analysis, the Board finds it necessary to order an independent psychiatric assessment.

32. The Board considered all submissions at length, including the hospital’s submission that any independent assessment ordered should be conducted by a non-forensic psychiatrist or a psychiatrist not affiliated with St. Joseph’s Healthcare London, including Southwest. After due consideration, the Board decided that it will be necessary for a psychiatrist with forensic training to conduct the independent assessment because Mr. Waweru has concerns regarding the interplay of his diagnosis and risk to the public. A forensic psychiatrist will be best able to assess such risk. However, it is only reasonable that an independent assessment be conducted by a psychiatrist who is truly independent without affiliation to the hospital.

33. Mr. Gehl’s submissions were particularly helpful to the Board and we thank him for assuming the role of Amicus in this matter.

34. The Board trusts that Mr. Waweru has honest intentions to accept the findings of an independent assessment and he will deem it to be of benefit regardless of what the outcome of the assessment may be.

35. Mr. Waweru is aware that an independent assessment will take time to arrange and will result in a significant delay of his annual hearing. In the meantime, we encourage Mr. Waweru to continue working with his psychiatrist and treatment team, consider their advice and recommendations, and fully comply with the hospital’s requirements for indirect supervision in the exercise of his privileges. No change to Mr. Waweru’s Disposition was sought as he awaits his independent assessment and the subsequent pre-hearing conference regarding the scheduling of his annual hearing. As such, no changes to the Disposition are ordered at this time.

DATED this 9th day of April 2026, at the City of Toronto, in the Toronto Region.

Ms. C. Murray Lawyer Member

Office of the Registrar Ontario Review Board