Re: Thomas G. MacQuarrie
ORB File No: 8132
Hearing held on: Friday, February 13, 2026
Place of hearing: Brockville Mental Health Centre
Pursuant to: Section 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Mr. P. Capelle
Members: Dr. R. Kunjukrishnan Dr. J. C. Rose Ms. J. Fuller Ms. R. MacIntyre
Parties Appearing:
Accused: Thomas G. MacQuarrie Counsel: Ms. F. Beaubien
The person in charge of hospital: Representative: Dr. A. Adiele
Attorney General of Ontario: Counsel: Mr. K. Schultz
REASONS FOR DISPOSITION
(Dated April 16, 2026)
Reasons of the Majority
(Mr. P. Capelle, Dr. R. Kunjukrishnan, and Ms. R. MacIntyre)
Introduction
On August 26, 2022, Mr. Thomas G. MacQuarrie was found not criminally responsible on account of mental disorder on a charge of resisting or obstructing police or peace officer, contrary to the Criminal Code of Canada (“Criminal Code”). Thomas MacQuarrie is currently subject to a Disposition of the Ontario Review Board dated October 29th, 2024 and an Order amending that Disposition dated October 31st, 2024, which detains him within the Secure Forensic Unit of the Brockville Mental Health Centre-Member of the Royal Ottawa Health Care Group (“BMHC”) with privileges up to and including to enter the community, accompanied by staff, or, a person approved by the person in charge.
On February 13th, 2026, a panel of the Ontario Review Board (“the ORB” or “the Board”) convened a hearing at the BMHC pursuant to s. 672.81(1) of the Criminal Code. The Hospital was represented by Dr. Adiele, the Attorney-General by Mr. Schultz, and Mr. MacQuarrie by Ms. Beaubien.
Without Prejudice Position of the Parties
- Dr. Adiele advised that the Hospital was seeking a renewal of the current detention Disposition with an amendment to subparagraph 2(f) which currently reads:
“To live in the community in accommodation approved by the person in charge.”
So as to read:
“To live in the community of Southeastern Ontario in accommodation approved by the person in charge.”
That position was joined by Mr. Schultz and Ms. Beaubien, subject to hearing the evidence. Ms. Beaubien further advised that the ongoing presence of significant threat was not contested.
Current Psychiatric Diagnoses
Delusional Disorder;
Alcohol Use Disorder – severe (currently abstinent while in a protected environment).
Background and Personal History
The Board admitted into evidence the Hospital Report dated October 3rd, 2026, as Exhibit No. 1. That document provides a great deal of information concerning Mr. MacQuarrie’s personal history, mental health history, as well as his course in hospital and in the community, both prior to and subsequent to the index offence. As the Hospital Report was made an Exhibit, it’s unnecessary to reproduce the information contained therein in these Reasons. It was noted that the NCR finding relates solely to a single count of “resisting or obstructing a police or peace officer,” in contravention of subpagaragph 129(a) of the Code.
Briefly, before his arrest in 2019, Mr. MacQuarrie was homeless, living under the Hunt Club (Michael J. E. Sheflin) Bridge in Ottawa for several years.
Mr. MacQuarrie has Indigenous heritage on his father's side. He was adopted as a young child, and his relationship with his adoptive parents was difficult and often troubled. He recalls being unhappy during childhood, with frequent arguments and physical abuse from his adoptive father. Both adoptive parents have since passed away.
In 1973, at age 12, Mr. MacQuarrie was diagnosed with a "behaviour disorder of childhood with obsessive-compulsive features". He participated in family therapy from 1973 to 1976. Psychological testing conducted at the time assessed his intellectual functioning as below average.
Mr. MacQuarrie completed Grade 8. At age 14, he was taken into the care of the Children's Aid Society and due to behavioural problems, was sent to a training school. He also received mental health treatment at the Royal Ottawa Hospital during this period.
As an adult, Mr. MacQuarrie worked in physically demanding jobs over the years. He also relied on welfare assistance and received financial support through the Ontario Disability Support Program.
Mr. MacQuarrie was previously married and had one child. Tragically, after the marriage ended, both his ex-wife and daughter were killed in a typhoon in the Philippines. He has no surviving children.
Mr. MacQuarrie has had extensive involvement with the criminal justice system. His criminal record includes convictions for failing to comply with bail conditions, theft, possession of stolen property, break and enter, and at least one firearms-related offence. The jail sentences he has served appear to have all taken place in provincial correctional institutions.
Mr. MacQuarrie has a long history of alcohol abuse, which was connected to behavioural problems, including physical altercations in bars. He has also reported abusing a variety of drugs dating back to 1991, including cannabis, amphetamines, cocaine, and LSD.
Between 1978–79 and again from 1995–97, Mr. MacQuarrie received services from the forensic department of the Royal Ottawa Mental Health Centre (“ROMHC”). In 1998, he was admitted to the ROMHC as an inpatient and later continued treatment on an outpatient basis.
On March 22, 1999, Mr. MacQuarrie presented to the Cornwall Hospital Emergency Department following a suicide attempt. He was treated and diagnosed with a personality disorder and a substance use disorder.
In July 1999, Dr. Greenberg conducted a formal psychiatric assessment to evaluate Mr. MacQuarrie's criminal responsibility. Dr. Greenberg concluded that Mr. MacQuarrie was fit to stand trial and that he was criminally responsible for his actions. Dr. Greenberg further opined that Mr. MacQuarrie's behavioural difficulties were largely driven by a longstanding and severe history of alcohol and substance abuse, which worsened his underlying personality difficulties, a pattern that had been documented repeatedly over time.
Subsequent to his August 26th, 2022, NCR finding Mr. MacQuarrie was transferred from the ROMHC to the BMHC in October of 2022.
Index Offence
- The circumstances, surrounding the charges of the Index Offence are set out as follows in the Hospital Report:
“Police located the suspect and ordered him to show his hands. After several requests, the man eventually pulled a knife from his pocket and threw it in a box inside the shopping cart. He then placed his hands on the shopping cart handle as requested by the police. As the officer approached the male for the arrest, the suspect has started to return to the box located in the shopping cart. Police noticed the handle of what appeared to be a large knife in a box. The officer had to use force to put the male to the ground. Once on the ground, the suspect refused to place his hands behind his back. The male eventually did so and was handcuffed by police. The knife used on the initial victim and seen by police was located in the box, within the shopping cart. The handle of a second knife, which police saw in the cart, was also located in the same box. It was a kitchen with a 7-inch blade. Both knives were seized.”
Evidence
In addition to the documentary evidence the Board heard from Dr. Adiele. He advised that there has been no change in Mr. MacQuarrie’s mental state or use of available privileges since the writing of the Hospital Report. Mr. MacQuarrie does not like to use indirect privileges, and his pattern has been to only leave the hospital once per week with the recreational therapist.
Mr. MacQuarrie is now more amenable to be discharged from hospital. This is why the change to subparagraph 2(f) is requested, to enlarge the radius of possible placements.
Typically, Mr. MacQuarrie will state that he likes being in hospital and does not want to be discharged. Mr. MacQuarrie was referred to and recently visited Caledonia Manor in Saint Isidore, which he apparently liked. However, the morning of this hearing he advised Dr. Adiele that “it smelled.” Dr. Adiele added that Caledonia Manor is a 24/7 supported residence and was judged more suitable than Rothwell Heights in Ottawa which Mr. MacQuarrie previously expressed an interest in. There is currently a bed available for Mr. MacQuarrie at Caledonia Manor. He may need an additional visit there before the decision to make a discharge order is taken. Responding to a question from Ms. Beaubien, Dr. Adiele confirmed that if Mr. MacQuarrie decides he does not want to be discharged to Caledonia Manor, another placement will be sought.
Mr. MacQuarrie remains treatment incapable and receives a monthly antipsychotic injection. If he missed one or more of these injections, it would likely take about five months until he begins to decompensate. Clozapine is not an option because he will not cooperate with the associated blood work. Therefore, no change in his prescribed medications is anticipated subsequent to a community placement. He continues to experience delusional beliefs that he is working for “the Germans” and that at some point he will be rescued. Mr. MacQuarrie refuses to participate in psychotherapy, either in groups, or 1:1.
No alcohol-seeking behaviour has been reported this past clinical year. Mr. MacQuarrie has not shown any alcohol cravings within the supported hospital environment. There are no increased concerns in this regard if he is discharged to Caledonia Manor. This is because at the BMHC he has not fully exercised available community privileges, and this predisposition is expected to continue subsequent to discharge. Dr. Adiele would not opine whether Mr. MacQuarrie would become reclusive if transitioned to the community. The Doctor did opine that, absent structure/oversight, shelter, food and medication, Mr. MacQuarrie’s stress levels would rise, augmenting his risk. As a result, Mr. MacQuarrie could become mentally unstable. However, evidence that he would engage in aggressive conduct is lacking.
Discharge from the BMHC to a more relaxed community environment would be beneficial for Mr. MacQuarrie. By next year, if all goes well, the treatment team may consider whether a conditional discharge is possible. If Mr. MacQuarrie decompensates at Caledonia Manor, he may end up in the same circumstances as at the time of the index offences, and hypothetically, his risk could escalate. There is no evidence to substantiate this possibility.
If granted an absolute discharge, Mr. MacQuarrie would fall away from his prescribed medications. Responding to questions from Ms. Beaubien, Dr. Adiele stated that nothing less than 24/7 supervised community accommodation is being considered at this time. This is because Mr. MacQuarrie requires oversight of his medication compliance, his activities of daily living and his finances. Additionally, his ability to live in the community has not yet been tested.
Asked if a long-term care placement would be appropriate, Dr. Adiele responded that supported accommodation would provide Mr. MacQuarrie with a better quality of life. This is because long term care facilities are often filled with an older patient population, many of whom are living with dementia.
Dr. Rose referenced the conclusory paragraph of the Risk Consideration heading found at pages 103-104 of the Hospital Report, reproduced below for ease of reference:
“Finally, it is of note that Mr. MacQuarrie has remained in a highly structured and secure hospital environment since the index offences that led to his arrest and NCR finding. Given the foregoing risk considerations, particularly the fact that the clinical team has no evidence to categorically state that Mr. MacQuarrie no longer poses a significant threat to the public (due to his poor engagement with rehabilitation programs), it remains the opinion of the team that Mr. MacQuarrie continues to pose a significant threat to members of the public.”
Dr. Adiele responded that his patient requires exposure to the community to obtain evidence that he can function safely within a community setting. Mr. MacQuarrie’s main active dynamic risk factor is persistent entrenched delusions, which were present at the time of the index offences. Dr. Adiele agreed with the suggestion that Mr. MacQuarrie’s residual symptoms may never disappear. For example, he salutes at store security cameras because he believes he sees helicopters coming to acknowledge his work for the German Third Reich.
Mr. MacQuarrie continues to make racist and homophobic comments directed primarily towards hospital staff. Dr. Adiele added that some staff have developed a resiliency vis-à-vis those types of comments. Dr. Adiele agreed that if Mr. MacQuarrie uses racist or homophobic slurs in the community, for example if he was discharged to Caledonia Manor, those comments would likely greatly upset staff and residents and there could be conflicts with staff as well as physical altercations with co-residents, both of which constitute a risk of harm. This same risk exists if was absolutely discharged and residing in the community at large. Evidence that he can control those comments outside of a hospital setting is currently lacking.
In light of Indigenous heritage on his father’s side, it was suggested that a Gladue Report be ordered. Dr. Adiele responded that no prior discussions vis-à-vis ordering a Gladue Report has taken place, as Mr. MacQuarrie has never mentioned his Indigenous background. Dr Adiele added that the writer of the Gladue report may very well conclude Indigenous services have little to offer as Mr. MacQuarrie as he was adopted at a very young age and advises that his mother was German. Following a short recess, Ms. Beaubien advised that her client would not be testifying and that he does not wish to participate in the preparation of a Gladue Report.
Having heard the evidence, the panel advised the parties that it had concerns with regard to the ongoing presence of significant threat and invited them to both call evidence and make submissions in that regard. All parties confirmed that they had no specific evidence or submission to present.
Closing Observations
Dr. Adiele stated that he had nothing further to add.
Mr. Schultz submitted that the presence of significant threat remains and is driven by historic and dynamic factors. Mr. MacQuarrie has been treatment resistant since the 1970s and his concurrent criminal record reflects the use of weapons, property offences and violence. Mr. Schultz also noted that Dr. Adiele testified that positive symptoms of his patient’s illness remain and are unlikely to improve due to the inability to prescribe clozapine.
Mr. MacQuarrie’s delusions and isolative behaviour are quite similar to what was seen at the time of the index offences when he was homeless, living under a bridge and arming himself with knives.
Mr. MacQuarrie’s entrenched racial and homophobic beliefs have the potential to cause psychological harm to members of the public. If Mr. MacQuarrie were to receive an absolute discharge at this time, even if he resumes his social isolation, he will nevertheless continue to come in contact with members of the public who will likely respond aggressively to his racist and homophobic comments.
Mr. Schultz further submitted that Dr. Adiele testified that in the absence of a Disposition Order, Mr. MacQuarrie would not remain medication compliant, thereby precipitating more serious symptoms of his illness and the increased likelihood that he would act on his delusions and may again be armed as occurred at the time of the index offence.
Whereas progress is expected each year, an absolute discharge at this stage would constitute an undue risk to public safety.
According to Mr. Schultz, a Detention Order allows for rapid readmission, whereas a Conditional Discharge requires the use of the Mental Health Act to return a patient to hospital. The BMHC’s discharge planning and recommended Detention Disposition represents a reasonable plan to move Mr. MacQuarrie forward in his community reintegration. If Mr. MacQuarrie is unwilling to go to Caledonia Manor, the BMHC will look for another community placement.
Ms. Beaubien agreed that greater progress is required prior to discharging her client from the Board’s jurisdiction. She noted that Mr. MacQuarrie engages more with the vocational therapist, and different means of encouragement towards discharge may have to be pursued. She agreed that her client continues to pose a psychological risk of harm such that the proposed disposition remains the least restrictive. The BMHC should revisit whether something less than 24/7 supervised community accommodation may be appropriate.
(a) Significant Threat
Ongoing significant threat to the safety of the public cannot be speculative. It must entail a real risk of serious physical or psychological harm arising from conduct that is both serious and criminal in nature.
In determining whether Mr. MacQuarrie continues to represent a significant threat to the safety of the public the Board carefully analyzed the evidence as it relates to the Supreme Court of Canada decision in Winko, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
The previously referenced and reproduced extract from pages 103-104 of the Hospital Report misconstrues the legal test applicable to upholding a finding of significant threat to public safety. Dr. Adiele incorrectly reverses the onus of proof in stating:
“..the clinical team has no evidence to categorically state that Mr. MacQuarrie no longer poses a significant threat to the public (due to his poor engagement with rehabilitation programs),”
when in fact the onus is on the Hospital to substantiate a positive and ongoing significant threat to public safety. Dr. Adiele concludes the sentence by stating:
“..it remains the opinion of the team that Mr. MacQuarrie continues to pose a significant threat to members of the public.”
The second part of the sentence, which indicates Mr. MacQuarrie still represents a significant threat to public safety is not supported by the muddled analysis in the first part of the sentence.
The majority of this panel nevertheless finds that Mr. MacQuarrie continues to represent a significant threat to the safety of the public arising from conduct that is both serious and criminal in nature. In arriving at this determination, the Board considered and ultimately adopted the joint position of the parties.
The majority of this panel finds that in the absence of structure, shelter, food and medication oversight; Mr. MacQuarrie would again decompensate. Given the evidence before us, the panel accepts Mr. Schultz’s closing observation that this patient’s presentation is largely the same as it was at the time of the index offence. Mr. MacQuarrie continues to suffer from a major mental illness with entrenched delusions and a tendency to isolate, even within a hospital setting. At the time of the index offence he was living under a bridge, armed with two knives, medication non-compliant and acting on delusional beliefs regarding a defeated German regime at a German automobile dealership.
Mr. MacQuarrie continues to make antisocial, racist and homophobic comments directed at hospital staff. These entrenched racist/homophobic slurs present a real and ongoing risk of psychological harm that is both serious and criminal in nature. Specific references to these slurs are found at pages 95-96 of the Hospital Report, reproduced below:
“A troubling pattern of inappropriate behaviour emerged during community outings in June and July 2025, when Mr. MacQuarrie on multiple occasions made comments that staff characterized as homophobic and racist in nature. The first documented instance occurred on June 9, 2025, when during a community outing, he made inappropriate comments that staff described as homophobic, racist and accusatory toward staff themselves. The pattern continued on July 10, 2025, with another instance of homophobic and racist comments during a community outing. It happened again on July 17, 2025, representing a consistent pattern over approximately six weeks. These incidents are concerning not only because of the offensive nature of the comments but because they occur in public community settings where they could lead to confrontation with members of the public or could result in Mr. MacQuarrie being denied access to community locations.”
The panel cannot accept Dr. Adiele’s contention that BMHC staff have developed a resiliency to those comments. Hospital staff are members of the public. Psychological abuse directed at BMHC staff is to be viewed no differently than psychological abuse directed at members of the public outside a forensic hospital setting.
Therefore, on the basis of the totality of the documentary evidence before us, Dr. Adiele’s testimony and the closing submissions of Mr. Schultz and Ms. Beaubien, the majority of the panel finds that Mr. MacQuarrie continues to represent a significant threat to public safety.
The majority accepts that absent an ORB Disposition, Mr. MacQuarrie would likely become non-compliant with prescribed medications which would lead to mental decompensation. It follows that absent an ORB Disposition and absent ongoing psychotropic treatment, the magnitude of serious psychological harm he currently presents, that is criminal in nature, will escalate.
(b) Disposition
Flowing from the Board’s finding that Mr. MacQuarrie continues to pose a significant threat to the safety of the public, it must shape a Disposition for the year ahead. Its paramount consideration in doing so must be the safety of the public while also considering Mr. MacQuarrie’s needs pursuant to s. 672.54 of the Criminal Code.
The necessary and appropriate disposition for Mr. MacQuarrie provides him as much freedom as possible without subjecting the community to a real risk of dangerous behaviour.
In considering Mr. MacQuarrie’s needs, the Board was attentive to the evidence that he has not been tested in the community since his October 2022 admission to the BMHC. Changes to subparagraph 2(f) of his Detention Order were jointly recommended by the parties and deemed necessary and appropriate by this panel to widen the radius of possible community placements. Importantly, as Mr. MacQuarrie’s inclination to be discharged from hospital has recently increased he should be encouraged and supported in moving forward vis-a-vis community reintegration and rehabilitation via community placement to a 24/7 supported residence, such as Caledonia Manor. Doing so, under the auspices of a Detention Disposition, ensures he can be appropriately tested in the community subsequent to a 3.5-year hospital admission with the safeguards of approved housing and rapid hospital readmission as needed, in place.
Reasons of the Minority
(Ms. J. Fuller and Dr. J. C. Rose)
- In advance of Mr. MacQuarrie’s annual review, the Board was provided with the following documentation:
a) Notice of Hearing - dated December 22, 2025
b) Reasons for Adjournment – dated October 21, 2025
c) Pre-Hearing Conference Reports – dated November 14 & 27, 2025
d) Order – dated October 31, 2024, amending the October 29, 2024, Disposition
e) Disposition – dated October 29, 2024
f) Reasons for Decision – dated December 3, 2024
g) BMHC Hospital Report to the ORB – dated October 3, 2025
The documentation provided indicates that the Hospital Report was prepared for Mr. MacQuarrie’s annual review, which was initially scheduled for October 21st, 2025. On the day of the hearing, defence counsel sought an adjournment. Mr. MacQuarrie had refused to meet with his counsel and had told hospital staff that he did not wish to speak with counsel and did not intend to attend the hearing. As a result, counsel, Mr. Davies, did not have client instructions.
This was unusual behaviour for Mr. MacQuarrie, who had attended all past hearings. Two pre-hearing conferences were held, and Mr. Davies was able to obtain instructions from Mr. MacQuarrie. The hearing was rescheduled for February 13, 2026.
Over 4 months passed between the signing of the Hospital Report and the date that the hearing occurred. No further hospital evidence was provided to the Board in advance of the hearing detailing Mr. MacQuarrie’s mental, medical or risk status over that period.
There are two issues that arose in the hearing that are addressed in these reasons:
The characterization and use of the index offence(s) in the Hospital Report and hearing.
Whether the evidence establishes that Mr. McQuarrie remains a significant threat to the public.
Issue # 1: Index Offences
- The Hospital Report, on page 1, indicates that Mr. McQuarrie’s index offences are particularized as:
Resist arrest, CC 129(a) (October 15, 2018)
Possess Weapon, CC 88(1) (October 15, 2018)
Break and Enter (2 counts), CC 348(1)(b) (July 24, 2019)
At pages 11-12 the Hospital Report indicates that Mr. McQuarrie was initially assessed for Fitness to Stand Trial related to two incidents. The first, which occurred on October 15th, 2018, involved a man, later identified as Mr. McQuarrie, being arrested after a complaint was made that he had assaulted another man with a knife. Mr. MacQuarrie resisted arrest by initially refusing to place his hands behind his back after he had been taken to the ground by police officers. Two knives were located in a box in the shopping cart that Mr. McQuarrie had been pushing.
The second incident occurred on July 24, 2019, when it was alleged that Mr. MacQuarrie attended a car dealership, rolled under the fence and stole numerous car parts from within the compound over a three-hour period. The theft was captured on video surveillance. Three days later, he was found walking in front of the property and was asked to leave. Nothing appeared to have been stolen on that date.
The Hospital Report, which is comprised of sections authored by several different physicians dating back to 2020, contains sections related to the following:
a. 2020 (date not specified) - Initial fitness to stand trial report on the above four offences. Due to COVID-pandemic, treatment was not completed, the doctor sought detention on the Forensic Assessment Unit to ensure medication and proper determination of fitness.
b. November 23, 2020 – Fitness report for initial ORB hearing. Mr. MacQuarrie remained unfit to stand trial. Detention Order recommended.
c. November 21, 2021 – Fitness report for annual ORB hearing. Mr. MacQuarrie remained unfit to stand trial. Detention Order recommended.
d. March 29, 2021 – Assessment for Criminal Responsibility – Dr. Strike provided the opinion that on a balance of probabilities, Mr. MacQuarrie was unable to know that his actions were wrong, with respect to the offences of possessing a weapon for a dangerous purpose, resisting arrest and assault with a weapon, as a result of his acute psychotic disorder. The July 24, 2019, offences (break and enter – 2 counts) were reviewed with Mr. MacQuarrie but are not mentioned in Dr. Strike’s conclusions on Mr. MacQuarrie’s ability to know that his actions were wrong or his ability to appreciate the nature and quality of his actions.
e. October 18, 2022 – Report for Annual NCR hearing – this portion of the report indicates that Mr. MacQuarrie was admitted to the Forensic Assessment Unit on charges of Resist Arrest, Possession of a Weapon, and Break and Enter x 2.
There is no mention of the court’s NCR finding made on August 26, 2022.
f. October 2023 – Report for Annual NCR hearing.
No mention of NCR index offences.
g. October 2024 - Report for Annual NCR hearing.
No mention of NCR index offences.
h. October 2025 – Report for Annual NCR hearing – page 87, the report indicates that Mr. MacQuarrie was found NCR on:
“August 26, 2022, for offences that occurred between 2018 and 2019, including resisting arrest and possession of a weapon for a dangerous purpose on October 15, 2018, and two counts of break and entering on July 24, 2019.”
In the December 3, 2024, Reasons for Decision, the Board, at paragraphs 10-11, noted discrepancies between the index offences articulated in the Report and those in previous Board decisions. The writer of the 2024 panel sought clarification as to what specific offences and facts constituted the index offences of Mr. MacQuarrie’s finding of NCR.
During the hearing on February 13, 2026, this issue was raised by a panel member, who sought the same clarification from the treating psychiatrist and then from counsel for the Attorney General.
The information provided by counsel for the Attorney General, was as follows:
a. The actual NCR finding is in relation to the “resist arrest.”
b. On the same date, a stay of proceedings was entered for the charges of possession of a weapon and two counts of break and enter (as opposed to a withdrawal).
Counsel again confirmed that there was only one index offence in relation to the finding that Mr. MacQuarrie was not criminally responsible and counsel for the Attorney General agreed.
- Upon careful review of the Hospital Report, it appears that the following has occurred:
There is no clear delineation of the offences for which Mr. MacQuarrie was found unfit to stand trial and not criminally responsible.
Dr. Strike’s NCR report indicates her opinion that Mr. MacQuarrie was unable to know his actions were wrong on three offences: resisting arrest, assault with a weapon and possession of a weapon for a dangerous purpose. No finding was made with respect to the break and enter offences, and this is the only reference to the offence of assault with a weapon in the Report.
There is no mention of the court’s determination of NCR and the resulting index offence(s).
Following the NCR assessment, it appears that the Report writers resumed referencing the offences for which Mr. MacQuarrie was assessed on fitness to stand trial, rather than the single offence for which the court found him to be NCR.
- This is problematic for several reasons:
The Board is not provided with a full evidentiary record of all proceedings leading up to an annual review. As a result, the Hospital Report is heavily relied upon as an accurate summary of the pertinent facts necessary to assess an individual’s significant threat.
There are many reasons why the Crown may exercise its prosecutorial discretion to stay charges in a particular case. The Board is not privy to those reasons. The Board should not be assessing the accused’s current threat to the public based on historical allegations of charges that were stayed. In this particular case, the Board does not have information that the facts supporting the stayed charges were proven in court, prior to the Crown’s entering a stay of proceedings.
The specific charges that were stayed, possession of a weapon for a dangerous purpose and break and enter, are on their face violent offences. When assessing an individual’s historical and ongoing risk factors due to his mental disorder, they impart on the reader a more violent impression of the individual than a single charge of resisting arrest.
The Ontario Court of Appeal in Re Viola, 2025 ONCA 33 at para 16 highlighted the limitations of relying on one-sided police occurrence reports for incidents where the appellant had not been criminally charged, in assessing the appellant’s risk. The court indicated that reliance on this information was problematic for a few reasons: 1) it wasn’t clear whether full reports were provided, as opposed to a summary, 2) the reports are not evidence, they are hearsay, 3) they are prepared for a particular reason and often only reflect one perspective, 4) the Board in its analysis, did not consider the fact that no charges were laid in assessing the seriousness of the incidents described. Due to its inquisitorial, rather than adversarial process, the Board is entitled to receive and consider a police summary of prior criminal activity and evaluate the hearsay evidence, in light of the inherent dangers in evidence of this type (Ontario v. Ranieri, 2015 ONCA 444 at para 16).
The Court of Appeal in R v. Runnalls, 2008 ONCA 93 at para 6 criticized the Board for relying on portions of the appellant’s CPIC record which included charges that were stayed, withdrawn and dismissed. The Court clearly noted that the “Board’s assessment of risk cannot take into consideration charges that did not result in convictions.” In a subsequent decision (R v. Runnalls, 2009 ONCA 504 at para 4), the court clarified that the Board was not precluded from attributing appropriate weight to actuarial risk assessment tools that take into account the entirety of an accused’s criminal record.
Most recently, the Court of Appeal Re Ramos, 2025 ONCA 820, at para 53-54, again underscored the limitations of relying on past police encounters, rather than convictions in assessing an individual’s risk to the public. The court indicated that a careful distinction must be maintained between police encounters and convictions, as merging the two can undermine an accused’s presumption of innocence.
In this case, the Hospital Report characterizes three offences that were stayed by the Crown as NCR index offences. This not only signals to the Board that Mr. MacQuarrie factually committed the actus reus of the offences as laid out in the Hospital Report, but that he also did so, while suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of the act or of knowing that it was wrong. In this particular case, no actuarial tools that may have necessitated the use of his entire criminal record, including charges that were laid and subsequently withdrawn or stayed, were utilized to assess Mr. MacQuarrie. The mischaracterization of the index offences and the inclusion of the supporting facts in the Report both undermine Mr. MacQuarrie’s presumption of innocence and elevate the perception of the risk he poses to the public while suffering from a mental disorder.
This matter has been before the Board for three annual reviews following the finding of NCR. On the limited record before the panel for the February 2026 hearing, there is one set of Reasons and two Pre-Hearing Conference Reports. Through no apparent fault of the pre-conference writers, who undoubtedly relied on the Report before them, the NCR index offences have been mischaracterized in two of these documents. The factual errors in the Report have been repeated in Board documents.
The Board expects that future Hospital Reports will properly characterize the index offence for Mr. MacQuarrie as a single count of “resisting or obstructing a police or peace officer,” contrary to the s. 129(a) of the CCC and will take care not to conflate the index offences for fitness to stand trial with the index offence for which Mr. MacQuarrie was found not criminally responsible.
Issue #2: Does Mr. MacQuarrie pose a significant threat to the public?
- At the hearing, oral testimony was provided by Dr. Adiele, who authored the most recent portion of the Hospital Report and is Mr. MacQuarrie’s treating psychiatrist. No further evidence was provided.
Evidence from the Hospital Report
The historical facts are summarized in the majority decision above and are not repeated.
The updates to the Hospital Report from October 2024 – October 2025 are found at pages 87 – 104. During this period, Mr. MacQuarrie was noted to be supported by ODSP, but financially incompetent, with his financial affairs managed by the Public Guardian and Trustee. He prefers isolation in his hospital room, which he maintains independently to a moderately clean level and a well-organized fashion. He manages his laundry independently using the unit laundry machines. He is preoccupied with cleanliness and prefers to bathe in his own room. He is sometimes found cleaning the patient restrooms and exercising in his own room. For the most part, he declines to participate in the group therapy and skills programs that are offered by the hospital.
Mr. MacQuarrie holds three levels of community privileges, which allow him hospital grounds access with a staff, indirectly supervised access to hospital grounds and accompanied access to the Brockville community. Mr. MacQuarrie almost exclusively uses his community outings to go shopping at Walmart with recreational therapy staff, who support him in completing his shopping and encourage him to independently pay for his items, which he is able to do. During these outings, his interactions are reported to be appropriate, without incident, and he thanks staff multiple times for their support. The only community incidents that occurred in the last reporting period occurred in July 2025 and are referred to in para 45.
Mr. MacQuarrie is compliant with his medications, which are numerous, and prescribed for his schizophrenia and several physical ailments. He participated in a functional assessment with an occupational therapist in June 2025, which revealed that he presents a low functional level that leaves him unable to live on his own. It was recommended that he transition to a long-term care facility or a 24-hour supervised living environment to assist him with medication management, meals and general supervision. Mr. MacQuarrie expressed on multiple occasions, a desire to transition to the Rothwell Heights group home.
Under the heading “Risk Consideration” on pages 102-104, the report indicates the following:
Mr. MacQuarrie has not had an aggressive incident score documented in over 12 months, with the most recent occurring more than 1 year before the August 2025 pre-ORB conference.
The index offences that led to his NCR finding – resisting arrest, possession of a weapon for a dangerous purpose, and breaking and entering – occurred in 2018 and 2019, during a period when he was unhoused, likely not receiving treatment, and may have been actively using alcohol.
How Mr. MacQuarrie would manage in a less controlled environment remains an important question.
Assessing his risk is difficult, specifically because he is so isolated and withdrawn.
His firmly held racist and homophobic beliefs could escalate to confrontation with members of the public.
- The Risk Considerations section, concludes with the following excerpt:
Given the foregoing risk considerations, particularly the fact that the clinical team has no evidence to categorically state that Mr. MacQuarrie no longer poses a significant threat to the public (due to his poor engagement with rehabilitation programs), it remains the opinion of the team that Mr. MacQuarrie continues to pose a significant threat to members of the public. (emphasis added)
Oral Testimony of Dr. Adiele
In his oral testimony, Dr. Adiele confirmed that there were no changes to Mr. MacQuarrie’s health or risk profile over the past four months, since the report was authored. There have been no changes in Mr. MacQuarrie’s risk, as there have been no incidents. Mr. MacQuarrie is quite reclusive and does not like to leave his room. He has indirect community privileges that he does not exercise, as he prefers to stay in his room. The hospital has been looking at 24-hr supervised residences to discharge Mr. MacQuarrie to, but Mr. MacQuarrie is resistant to discharge.
An updated risk assessment has not been completed because Mr. MacQuarrie will not participate. At the time of the hearing, the risk assessment is based on historical information. Mr. MacQuarrie has not had any incidents in the community while he has been out on the privileges that he does exercise (i.e. trips to WalMart). Mr. MacQuarrie’s delusions continue to persist, and at times, he reports that he ‘salutes’ the security cameras or helicopters that he sees in the community, as he believes that the Germans are watching him.
In response to questions from Board members, specifically about what dynamic risk factors Mr. MacQuarrie presented with at the time of the hearing that would make him a significant threat to the public, Dr. Adiele provided the following answers:
Mr. MacQuarrie has not actually been in the community, so it would be imprudent to assume that he is no longer a risk.
We need Mr. MacQuarrie to go out into the community and come back safely repeatedly over weeks and months, to determine if he’s going to be aggressive in public.
He hasn’t been in the community to experience stress, so we don’t know if he’s not going to engage in aggressive conduct similar to the index offence.
- In response to questions from other Board members, Dr. Adiele advised that Mr. MacQuarrie does not exhibit any ongoing signs of alcohol dependency. Further, he has made no attempts to access alcohol. If he were to stop taking his medication in the community, it would take at least 5 months for Mr. MacQuarrie to decompensate. Dr. Adiele advised that a 24-hr supervised home is necessary to gather evidence as to whether Mr. MacQuarrie is a risk to the public, rather than to mitigate his risk. Dr. Adiele confirmed that within the last reporting year, Mr. MacQuarrie has not had any incidents of aggression and the ‘salute’ made toward security cameras when he is out in the community is not a Nazi salute.
Law on Significant Threat
- The relevant legal principles to be applied to the evidence with respect to the issue of significant threat are summarized in the decision of the Ontario Court of Appeal in Marmolejo (Re), 2021 ONCA 130 at paras 34-37:
…the role of the Board is first to determine whether an NCR accused represents a significant threat to public safety. If the answer to that question is "no" or uncertain then the NCR accused must be discharged absolutely: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, [1999] S.C.J. No 31, at pp. 659-61, 669 S.C.R. If the NCR accused does present a significant threat, the Board must either conditionally discharge or detain the individual: Winko, pp. 662, 669 S.C.R.
It is important to bear in mind that the Board's responsibility to grant an absolute discharge is non-discretionary in the event that it harbours any doubt about whether the NCR accused represents a significant threat: Carrick (Re), [2018] O.J. No. 4878, 2018 ONCA 752, at para. 16. As the majority of the Supreme Court emphasized in Winko, at pp. 652-53 S.C.R.: "Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application."
Individuals with mental disorders are not inherently dangerous: Winko, at p. 653 S.C.R. There is no presumption of dangerousness and no burden on the NCR accused to prove a lack of dangerousness: Winko, at pp. 660-61, 662 S.C.R. Rather, the legal and evidentiary burden of establishing significant threat rests on the Board or the court: Winko, at p. 663 S.C.R.
The threshold for significant risk is "onerous": Carrick (Re) (2015), 128 O.R. (3d) 209, [2015] O.J. No. 6524, 2015 ONCA 866, at para. 17. A significant threat to the safety of the public means a foreseeable and substantial risk of physical or psychological harm to members of the public: R. v. Ferguson, 2010 ONCA 810, at para. 8. The conduct must be of a serious criminal nature: Ferguson, at para. 8. A very small risk of grave harm will not suffice, nor will a high risk of trivial harm: Ferguson, at para. 8. The threat must be more than speculative in nature; it must be supported by evidence: Winko, at p. 665 S.C.R.; Pellett (Re) (2017), 139 O.R. (3d) 651, [2017] O.J. No. 5025, 2017 ONCA 753, at para. 21.
- The Supreme Court of Canada in Winko at para 3-4, highlighted,
“Restrictions on his or her liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat… If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public… there is never any legal burden on the NCR accused to show that he or she does not pose a significant threat to the safety of the public.”
As set out in Hassan (Re) 2011 ONCA 561 at para 25, the role of the Board is to review and weigh the factors set out in s. 672.54 of the CCC, and make an independent determination, regardless of the position of the hospital, Crown or, as in this case, a joint submission which includes the accused.
When weighing the evidence as presented by the hospital, regarding whether or not Mr. MacQuarrie poses a significant risk to the public, the following concerns arise with the Hospital’s evidence:
No evidence of his present behaviours that would rise to a foreseeable and substantial risk of physical or psychological harm to the public was provided.
A current risk assessment was not provided.
There was no evidence of violent or aggressive incidents over the past reporting year.
The evidence of Dr. Adiele, both in the hearing and the Hospital Report, appears to reverse the burden of proof by requiring Mr. MacQuarrie to prove he isn’t a significant threat to the public [emphasis added], rather than the hospital offering positive evidence that he currently poses a significant threat to the public.
The closing lines of the Report, “…the clinical team has no evidence to categorically state that Mr. MacQuarrie no longer poses a significant threat to the public… it remains the opinion of the team that Mr. MacQuarrie continues to pose a significant threat to members of the public”, cannot be reconciled with the Board’s obligation to make a positive finding that an individual poses a significant threat to the public at the time of the hearing and not Mr. MacQuarrie’s burden to disprove that he poses a significant threat to the public. The oral evidence provided by Dr. Adiele did not assist in making a positive finding of the same.
Absent current evidence that Mr. MacQuarrie today poses a significant threat to the public, in accordance with the caselaw, as outlined by the Court of Appeal in Marmolejo (Re) and Winko, an absolute discharge is warranted.
It is also of importance to note that the Report, in its conclusions, refers to four separate criminal offences as comprising the index offences for which Mr. MacQuarrie was found NCR; the same offences found on the first page of the report dated October 3, 2025. Again, these offences include two counts of break and enter and possession of a weapon for a dangerous purpose. The repetition of these offences, which were not found to be NCR index offences and for which Mr. MacQuarrie was not convicted of, may serve to heighten both the Report author’s and the reader’s perception of the risk that Mr. MacQuarrie poses to the public. They should not be included in future reports as NCR index offences.
Conclusion
Therefore, the majority of the Board determines that the necessary and appropriate Disposition required to manage the threat Mr. MacQuarrie poses to the safety of the public while still meeting his needs remains a Detention Order with the changes recommended.
In making this Disposition, the Board carefully considered the positions and submissions of the parties and the evidence of Dr. Adiele and is satisfied that this determination is both necessary and appropriate. The Board reviewed the provisions of s. 672.54 of the Criminal Code and carefully considered the need to protect the public from dangerous persons, Mr. MacQuarrie’s mental condition, his reintegration into society and other needs.
DATED this 16th day of April, 2026, at the City of Toronto, in the Toronto Region.
Mr. P. Capelle Alternate Chairperson
Office of the Registrar
Ontario Review Board