Re: Denise Herbert
ORB File No: 8585
Hearing held on: Tuesday, March 31, 2026
Place of hearing: Waypoint Centre for Mental Health Care
Pursuant to: Sections 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. S. Clapp
Members: Dr. P. Darby Dr. A. Gibas Ms. C. Murray Ms. B. Little
Parties Appearing:
Accused: Denise Herbert Counsel: Mr. K. Byers
Person in charge of Hospital: Counsel: Ms. J. Lefebvre
Attorney General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DISPOSITION
(Dated April 13, 2026)
Introduction:
On June 24, 2024, the Ontario Superior Court of Justice found Denise Herbert not criminally responsible on account of mental disorder (“NCR”) on charges of dangerous driving causing death and failing to stop after accident, contrary to the Criminal Code. The Court referred the matter to the Ontario Review Board (“the Board” or “ORB”) for a Disposition hearing. Ms. Herbert’s initial hearing before the Board occurred on January 29, 2025.
Ms. Herbert is currently subject to an Amended Disposition of the Board dated February 13, 2025 (amended by Order dated March 27, 2025) whereby she is discharged from the Waypoint Centre for Mental Health Care (“Waypoint” or the “hospital”) on conditions, including that she reside at a certain address, report to the hospital once every two weeks, abstain from the use of substances, remain within the Province of Ontario except for approved seven day passes, refrain from communicating with the family of the victim of the index offences (aside from court proceedings), and refrain from possessing any weapons.
Pre-Hearing Conferences occurred on January 15, 2026, February 24, 2026, and March 6, 2026. Issues related to the time set for the hearing, and Victim Impact Statements were discussed.
On March 31, 2026, a panel of the Board convened at Waypoint to conduct Ms. Herbert’s annual review pursuant to section 672.81(1) of the Criminal Code. Ms. Herbert attended the hearing and was represented by counsel, Mr. K. Byers. Ms. Herbert’s mother, as well as three members of Ms. Herbert’s treatment team were also in attendance.
The following members of Claudio Scigliano’s (the victim of the index offences) family were present by Zoom and read their Victim Impact Statements (“VIS”): Nikki Wills, Peter Scigliano, and Claudia Kirkwood. Jo-Anne Scigliano did not attend as she was not feeling well. Ms. Herbert was excused from the hearing during the reading of the VIS, and the reasons for this are discussed below.
The following documents were marked as Exhibits at the hearing:
Progress Report prepared by K. Fox dated November 25, 2025;
Dr. A. Douglas’ Notes dated April 30, 2025, August 18, 2025, and November 14, 2025;
Hospital Report dated January 13, 2026;
VIS of Claudia Kirkwood dated January 30, 2026, VIS of Nikki Wills dated December 10, 2025, VIS of Jo-Anne Scigliano dated August 30, 2024, and VIS of Peter Scigliano dated August 30, 2024 (with proposed redactions highlighted by Mr. Byers);
Dr. A. Douglas’ Letter dated January 28, 2026; and
B. Schust-Lawrence’s Letter dated March 6, 2026.
In addition to the documentary evidence, Ms. Herbert’s attending psychiatrist, Dr. P. Ismail gave evidence.
The issues to be decided at the hearing were whether Ms. Herbert continued to meet the test of posing a significant threat to the safety of the public and if so, what is the necessary and appropriate Disposition, bearing in mind the four factors in section 672.54 of the Criminal Code.
Positions of the Parties:
At the outset of the hearing, the parties were asked for their initial without prejudice positions. Ms. Lefebvre stated that it was the hospital’s position that Ms. Herbert no longer represented a significant threat to the safety of the public and was therefore entitled to an Absolute Discharge.
Ms. Curry, on behalf of the Attorney General, sought a continuation of the existing Conditional Discharge.
Mr. Byers stated that Ms. Herbert was seeking an Absolute Discharge.
Findings:
- For the reasons that follow, the panel concluded that the evidence did not establish that Ms. Herbert continues to pose a significant threat to public safety. Accordingly, pursuant to section 672.54(a) of the Criminal Code, Ms. Herbert was granted an Absolute Discharge.
Index Offences:
- The circumstances of the index offences are outlined in detail in the Hospital Report (at pages 2-4) and can be summarized as follows. On the morning of June 9, 2022, Ms. Herbert drove her car through a red light and struck the victim’s car on the driver’s side. The victim’s car spun around and struck two stationary vehicles. Ms. Herbert exited her car and walked away without rendering assistance. The victim was transported to hospital but did not survive. Ms. Herbert did not recall the incident.
Victim Impact Statements and Excusal of Ms. Herbert:
At the outset of the hearing, Mr. Byers advised that he was seeking an order excusing Ms. Herbert from the hearing during the time that the VIS would be read. Mr. Byers relied on the letters submitted by Dr. Douglas and Ms. Schust-Lawrence dated January 28, 2026, and March 6, 2026, respectively (Exhibits 5 and 6). Dr. Douglas is the psychiatrist treating Ms. Herbert in the community, and Ms. Schust-Lawrence is the therapist with the Community Outreach and Support Team (“COAST”) providing psychotherapy to Ms. Herbert. Both letters state the opinion that being present for the reading of the VIS would have a negative impact on Ms. Herbert’s mental health. Dr. Douglas noted that Ms. Herbert listened to the VIS last year and was distressed by them. She also emphasized that Ms. Herbert was found NCR because she was psychiatrically unwell and unable to appreciate her illness and actions at the time of the index offences. Ms. Schust-Lawrence stated her opinion that listening to the VIS again would cause undue stress to Ms. Herbert and impact the progress she has made in her recovery.
Mr. Byers submitted that excusing Ms. Herbert would not detract from the right of the members of the victim’s family to read the VIS, nor the obligation of the Board to consider them.
Ms. Lefebvre asked for Dr. Ismail’s opinion on the issue, and he stated that Ms. Herbert had told him multiple times that she found listening to the VIS very stressful. He added that any stress can be harmful to a person’s mental health. In response to questions from Ms. Curry, Dr. Ismail stated that while hearing the VIS could harm Ms. Herbert psychologically, he did not think that it would destabilize her enough to increase her risk for violence.
Ms. Curry advocated for Ms. Herbert to remain in the hearing during the reading of the VIS and submitted that: this was Ms. Herbert’s first annual hearing (her initial hearing was last year); Ms. Herbert was present for the VIS when they were read last year; this was a normal process at ORB hearings and victims have a right to read their VIS; Ms. Herbert should be reminded of the incredibly serious consequences should she become unwell again; and this was especially important because an Absolute Discharge was being recommended by the hospital this year.
The parties were also asked to comment on the proposed redactions to the VIS that Mr. Byers had made so that they would comply with s. 672.5(14) of the Criminal Code. Ms. Lefebvre took no position on the proposed redactions, and Ms. Curry was content that the panel would disregard any parts that did not comply with the Criminal Code in accordance with the Ontario Court of Appeal’s decision in Re Klem, 2016 ONCA 119.
The panel deliberated on these issues carefully and unanimously decided to allow Ms. Herbert to be excused from the hearing during the reading of the VIS (which occurred after Dr. Ismail’s testimony). Section 672.5(10)(a) of the Criminal Code allows the panel to permit an accused to be absent during the whole or any part of a hearing on such conditions as the chairperson considers proper. In this case, the panel noted that Ms. Herbert had listened to the VIS last year, and there were two letters from health care professionals involved in Ms. Herbert’s care who were of the opinion that listening to the VIS again would have a negative impact on her mental health and recovery. This opinion was also supported by Dr. Ismail.
The panel carefully considered the purposes of the NCR regime in Part XX.1 of the Criminal Code, including that it is not intended to be punitive. While it is understandable that victims may feel tremendous anger and animosity toward an accused, together with fear and concerns about an accused’s true dangerousness and state of mind, the NCR regime recognizes that although a criminal act occurred, the individual lacked the necessary criminal intent because their mental condition affected their ability to appreciate the nature and consequences, or wrongfulness of their actions. As a result, moral culpability is absent.
The panel also considered that the victims’ right to read the VIS at the hearing, as provided for in s. 672.5(15.1), was preserved. On that note, because the panel excused Ms. Herbert for the reading of the VIS, the victims were permitted to read the entirety of their VIS (including any proposed redactions), and the panel disregarded those portions that were not in compliance with s. 672.5(4) as permitted by the Re Klem decision.
The reading of the VIS was emotional and difficult. The gravity of the devastation that the loss of Claudio Scigliano has had on his family was palpable and heartbreaking. It was clear that he was a beloved husband, father, grandfather, and friend. There is no question that his tragic death has impacted his family profoundly and irreparably.
Background:
Ms. Herbert’s personal history is outlined in the Hospital Report in detail and will not be repeated here. In summary, Ms. Herbert is a 52 year old woman who lived with her parents and sister growing up. She did well in school and obtained an undergraduate university degree. Ms. Herbert worked in government for approximately ten years and then had her own public relations and communications business. She stopped working around 2016 or 2017 due to physical health problems.
Ms. Herbert met her husband in 2005, and they married in 2010. They separated in January 2022, and Ms. Herbert described her husband as psychologically and emotionally abusive. Following the separation, Ms. Herbert lived with her parents and in hotels. She isolated herself and lived on canned food. She attended a retreat in April 2022, and while she was away the house she had shared with her husband burned down.
Ms. Herbert has no history of substance or alcohol abuse beyond occasional use when she was younger.
Ms. Herbert has multiple medical conditions that are listed in the Hospital Report (at page 2) as follows: Thrombophilia; Deep vein thrombosis; Acute thrombosis; Factor V Leiden; Hemochromatosis; Hyperinsulinemia; and Palindromic arthritis (rheumatoid). She has had multiple pulmonary embolisms and has required hospitalization.
Criminal History:
- Ms. Herbert has no prior criminal history.
Psychiatric History:
The Hospital Report stated that Ms. Herbert had never seen a psychiatrist prior to the index offences; however, she reported that she was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) by a doctor as a result of her first experience when she had a blood clot in her lungs. There were also some records cited in the Hospital Report where Ms. Herbert was described as being irritable, demanding, aggressive, and confrontational, resulting in her being “fired” by her family doctor.
Following the index offences, Ms. Herbert was admitted to hospital from June 9 to August 8, 2022, for a psychotic episode. Ms. Herbert endorsed hearing the voice of God and stated that she was an “earth Angel” who had been sent to be a truth teller and a light worker. Ms. Herbert remained in hospital as an involuntary patient and was found incapable of consenting to treatment. She was trialed on three antipsychotic medications, with the third one (Haldol) leading to “robust improvement” and regained insight. Ms. Herbert’s discharge diagnosis was “First Episode Psychosis – New diagnosis of Schizophrenia.” She was referred to the Canadian Mental Health Association (“CMHA”) and an Early Psychosis Program.
Following the NCR finding, Ms. Herbert started seeing Dr. Douglas every three to four months (Exhibit 2). Ms. Herbert complained of severe side effects from the antipsychotic medication. The Hospital Report included the following about Dr. Douglas’ opinions about Ms. Herbert’s diagnosis and medication (at page 25):
“Dr. Douglas felt that there was some uncertainty regarding the diagnosis of schizophrenia, although a lot of her symptoms and the duration seem to fit with this. There was a possibility that her depressive episode had predated the onset of psychosis and major depressive disorder with psychosis was possible. The diagnoses finally arrived at were unspecified psychosis, likely MDD with psychosis, rule out schizophrenia. Rule out autism was noted along with insomnia.
Dr. Douglas suggested that haloperidol be reduced to a lower dose or the cross tapered to a more tolerable medication. Alternatively, Dr. Douglas suggested a 12-week taper. Ms. Herbert was unwilling and insisted that she wanted to stop haloperidol over 2-3 weeks. She compromised 6-week taper. She agreed to be closely monitored by the CMHA worker.”
Ms. Herbert discontinued the antipsychotic medication in February 2024. Following this, Ms. Herbert did not exhibit any evidence of psychosis and reported doing well as regards her mood, energy, motivation, concentration and overall functioning. Dr. Douglas recommended that Ms. Herbert stay off antipsychotic medication (and noted that she was capable of making this decision) with regular monitoring and support from the COAST team. No safety risks were noted.
Dr. Douglas’ Notes from 2025 consistently noted that Ms. Herbert expressed significant frustration with some of her diagnoses and maintained that her psychosis was secondary to the trauma that her ex-husband had caused her. Ms. Herbert also maintained that her baseline personality was similar to what some people may view as mania, and this was corroborated by Ms. Herbert’s mother and her friend from high school. It was also noted that Ms. Herbert was experiencing multiple ongoing stressors involving the declining health of her father, lawsuits related to the index offences, and interactions with her ex-husband and the insurance company in relation to their house that had burned down. Ms. Herbert was also described as expressing remorse, understanding the risk of recurrence, and maintaining her commitment to wellness.
While the Reasons for Disposition from last year’s initial hearing listed Ms. Herbert’s diagnosis as Schizophreniform disorder (by history), this year’s Hospital Report states that Ms. Herbert does not have any current psychiatric diagnosis. She is capable of consenting to treatment and has not taken any psychiatric medication since February 2024.
Evidence at the Hearing:
The Hospital Report stated that Dr. Ismail assumed Ms. Herbert’s care following the issuance of the initial Disposition last year. Ms. Herbert has continued to reside at her parents’ home, and while she is described as reactive, defensive, abrupt, and irritable at times, she has not exhibited any symptoms of mental illness.
The Hospital Report stated that Ms. Herbert maintains a broad network of formal and informal supports including professionals from COAST who she sees approximately twice weekly; appointments with Dr. Douglas (CMHA psychiatrist); biweekly in-home visits from the Forensic Mobile Treatment and Support Team (“FMTST”); appointments with Dr. Ismail; appointments with Dr. A. Boroway (long-standing rheumatologist); and her mother, aunt, and high school friend. Ms. Herbert also attended an eight week therapeutic counselling program with Ms. Schust-Lawrence through COAST due to ongoing stressors in her life. It was noted that she also engages in self-care through nature-based activities and equine therapy.
Dr. Ismail’s Clinical and Composite Assessment of Risk completed on January 12, 2026, is very detailed and comprehensive, and is therefore repeated in its entirety as follows (at pages 37-38 of the Hospital Report):
“Based on a longitudinal review of Ms. Herbert’s clinical course, collateral information, and her sustained functioning in the community, there is no evidence that she currently poses a significant threat to the safety of the public. Ms. Herbert does not carry a current psychiatric diagnosis and has not required psychotropic medication since January 2024. She has remained psychiatrically stable, with no recurrence of symptoms, no impairment in reality testing, and no evidence of mood instability, psychosis, or behavioral dysregulation over the review period.
Ms. Herbert demonstrates good insight into her mental health, her past difficulties, and the circumstances surrounding the index offence. She is able to identify the personal and contextual stressors that contributed to her prior crisis and articulates clear, realistic strategies to mitigate future risk, including avoidance of coercive interpersonal dynamics, early engagement with supports, and assertive self-advocacy. She does not minimize the seriousness of the index offence, nor does she externalize blame in a manner suggestive of ongoing risk. Her insight into violence risk is stable and has not deteriorated.
There is no evidence of current or recent violent ideation, urges, intent, or planning. Ms. Herbert does not express thoughts of harming others, does not demonstrate hostile attribution bias, and does not derive pleasure or gratification from harm. Despite exposure to significant psychosocial stressors during the review period—including ongoing legal disputes and conflict related to her property—she has managed these challenges without aggression, impulsivity, or loss of behavioral control. Her responses have remained organized, proportionate, and grounded in problem-solving and help-seeking behaviors.
Ms. Herbert’s mental status examinations have consistently been within normal limits. Her thought processes are logical, organized, and goal directed, with no evidence of delusions, paranoia, or perceptual disturbance. Her mood is euthymic, her affect appropriate, and her judgment intact. She demonstrates good decision-making capacity across interpersonal, financial, and daily living domains and is able to care for herself independently. There is no indication of cognitive, affective, or behavioral instability that would elevate risk to others.
Ms. Herbert has been compliant with supervision and highly engaged with treatment and support services. She has maintained regular contact with psychiatry, nursing, forensic outreach and therapeutic supports, and has demonstrated benefit from these interventions. disposition andsted treatment, has adhered to conditions of her disposition, and has proactively sought additional supports when stressors have arisen. Her successful residence in the community on a conditional discharge, without incident, further supports a low risk assessment.
Ms. Herbert has a stable living situation and a strong network of formal and informal supports, including family members and multiple community-based service providers. She engages in adaptive coping strategies and structured self-care, and she demonstrates consistent help-seeking and insight-driven behavior. Taken together, the absence of active mental illness, the absence of violent ideation or instability, her sustained compliance and responsiveness to supports, and the presence of significant protective factors indicate that Ms. Herbert’s risk to public safety is low and no longer exceeds that of the general population. She therefore does not meet the threshold of a significant threat to the safety of the public, and continued Ontario Review Board oversight is not warranted.”
Dr. Ismail testified that he continued to support his assessment of risk and maintained that Ms. Herbert no longer represents a significant threat to the safety of the public.
Given that Ms. Herbert no longer has an active psychiatric diagnosis, Dr. Ismail was asked what was responsible for Ms. Herbert’s psychosis at the time of the index offences. Dr. Ismail stated that he had spoken with Dr. Douglas, and they concluded that it was the result of both acute and chronic stress related to an abusive relationship, the death of her dog, her house burning down, and the fact that she was estranged from family and friends, isolative in hotels, and did not have anyone to turn to for help.
Dr. Ismail testified that he would not recommend that Ms. Herbert take antipsychotic medications now. He also stated the opinion that the medications that Ms. Herbert was on for her medical conditions did not appear to have contributed to Ms. Herbert’s psychosis or any ongoing risk.
Dr. Ismail stated that stress was a very important factor in the index offences, so Ms. Herbert’s risk management comes down to managing stressors to ensure that something like the index offences does not happen again. Dr. Ismail testified that Dr. Douglas had agreed to follow Ms. Herbert indefinitely (even though she does not have a psychiatric diagnosis and is not prescribed any psychiatric medications), and Ms. Herbert has agreed to this as well as ongoing psychotherapy.
Dr. Ismail noted that Ms. Herbert has managed stressors well over the past year by seeking help from all of her supports, and “pulling away” from situations that will cause her increased stress. In the event that psychosis were to re-emerge, Dr. Ismail was confident that Ms. Herbert would seek help from her formal and informal community supports, given that she has very good insight into stressors and is now more open to the idea of seeking help. Dr. Ismail was of the opinion that this was sufficient to address Ms. Herbert’s risk if she were to decompensate.
In terms of a potential time frame for re-emergence of psychotic symptoms and what that would look like, Dr. Ismail stated that it was very difficult to predict given that there has only been one psychotic incident with Ms. Herbert across her lifetime. However, he noted that it has been four years since the index offences, and more than two years since Ms. Herbert discontinued medication, and there has been no re-emergence of symptoms despite exposure to stressors. Dr. Ismail therefore opined that any re-emergence of symptoms would likely be gradual.
When asked if Ms. Herbert would be open to taking antipsychotic medication in the future, Dr. Ismail responded that he believed that Ms. Herbert would be open to it as long as it was being recommended for a “clear” purpose.
When asked about Ms. Herbert’s insight, Dr. Ismail described it as “excellent.” He stated that Ms. Herbert understands the risk factors that led to the index offences and understands that it is important to care for her mental health in order to prevent anything like that happening again.
Dr. Ismail was asked about a potential Autism diagnosis, and he stated that while Ms. Herbert may have some traits, she does not currently meet the diagnostic criteria for Autism. Dr. Ismail was also asked about Ms. Herbert’s personality structure. While Ms. Herbert exhibits concrete thinking patterns and assertiveness, Dr. Ismail testified that she does not meet criteria for a personality disorder.1 He explained that while personality structure can play a role in a person’s risk, it can also be protective by serving as a defence mechanism to stress. He noted that Ms. Herbert does not readily trust people and tries to stay out of trouble.
In terms of other factors that he considered when opining on Ms. Herbert’s risk, Dr. Ismail stated that Ms. Herbert has more protective factors now than she did at the time of the index offences. She is very involved with her health care practitioners, seeks out, and follows through on their recommendations.
Dr. Ismail gave the following evidence in response to questions from Ms. Curry about last year’s Reasons for Disposition, Dr. Douglas’ Notes, and the Hospital Report:
a. Although Dr. Ismail agreed that it was unknown if Ms. Herbert would develop psychosis again, he did not agree that she would decompensate within days without antipsychotic medications because that had been proven wrong by the fact that Ms. Herbert has been off medication for over two years without any evidence of symptoms.
b. Ms. Herbert has developed more insight since last year and grasps the catastrophic consequences of her actions at the time of the index offences and is remorseful.
c. It was Dr. Ismail’s understanding from a conversation with Dr. Douglas that it was a joint decision between Dr. Douglas and Ms. Herbert to come off the Haldol. Once she was doing well off medication, there was no need to start Abilify.
d. Dr. Ismail agreed that stressors do not need to be as severe to cause psychosis a second time.
e. While civil litigation is stressful, and it is possible that it could cause Ms. Herbert to experience psychosis again, Dr. Ismail did not think that it was necessary for the forensic team to continue to oversee Ms. Herbert until the civil litigation is concluded. He noted that although the forensic team has a “keener eye” when it comes to recognizing symptoms, Ms. Herbert has many other supports now and the forensic team was “not adding anything.”
f. Ms. Herbert was frustrated with the numerous diagnoses that she was given in relation to her psychosis (i.e., Schizophreniform disorder, Autism, Major Depressive Disorder with psychotic features, Schizophrenia, and Bipolar Disorder), but she always accepted the psychosis part. Dr. Ismail explained that given Ms. Herbert’s personality structure, she prefers one confirmed diagnosis along with the treatment for it.
g. Although there was some concern about two medications that Ms. Herbert was on for her medical conditions (Amitriptyline and Hydroxychloroquine) and their potential to trigger mania or psychosis, Dr. Ismail noted that Ms. Herbert had been on the medications for years without a prior episode, and there was nothing in the hospital records following the index offences about any concerns with these medications.
h. Although it is not specifically stated in the Hospital Report, Dr. Ismail believed that the eight week counselling program that Ms. Herbert did with COAST focused on trauma related to Ms. Herbert’s abusive relationship, her negative experiences with the medical system, as well as grief and remorse related to the index offences. Ms. Herbert intends to pursue individual supportive therapy to develop skills to prevent relapse and deal with stressors.
i. Dr. Ismail was not aware of Ms. Herbert making any apology to the family of the victim.
j. Ms. Herbert is not currently in school or employed. She is very occupied with the rebuilding of her house, issues with the insurance company and her ex-husband, and moving forward in the ORB system.
k. While it was Dr. Ismail’s opinion that Ms. Herbert did not currently meet criteria for PTSD, he stated that she likely has met criteria at certain times in her life (including in relation to the blood clot in her lungs).
l. Ms. Herbert did not recognize the symptoms of her first episode of psychosis, and insight is often one of the first things to go with psychosis.
m. Ms. Herbert has a lack of memory about the time leading up to and during the index offences. While Dr. Ismail agreed that it will therefore be hard for Ms. Herbert to be able to recognize those feelings again, he emphasized that it is not uncommon to have a memory lapse after an accident or a stressful event. He was also not sure how this would fit into any future risk for Ms. Herbert.
In response to questions from Mr. Byers, Dr. Ismail explained that his discussions with Dr. Douglas focused on three things: 1) the fact that she was taking away all psychiatric diagnoses; 2) that it was a mutual decision with Ms. Herbert when the antipsychotic medication was stopped; and 3) that she would continue to provide psychiatric care to Ms. Herbert.
Dr. Ismail agreed that the longer Ms. Herbert is off antipsychotic medication and stable, the more confident one can be that the index offences were an isolated incident. He confirmed that Ms. Herbert is able to recognize stressors and has demonstrated a willingness and desire to continue engagement with all of her supports.
In response to a question from the panel about the potential re-offence scenario, Dr. Ismail stated that Ms. Herbert would disconnect from all services and community networks, isolate herself, experience accumulated stressors, and have a psychotic episode where she would develop delusions, hallucinations, and disorganized thinking, as she did at the time of the index offences.
Also in response to questions from the panel, Dr. Ismail agreed that Ms. Herbert’s psychotic experience could fall within the description of “brief psychotic episode” as outlined in the International Class of Disease classification. He also agreed that with this type of illness, a person has a better prognosis as time goes on without further psychotic episodes, reducing their risk of relapse. Dr. Ismail also agreed that it is not unusual (and is in fact recommended) for this type of diagnosis for a person to come off antipsychotic medication when there has been no history of recurrent psychotic episodes.
When asked further about Ms. Herbert’s ability to recognize symptoms in light of the fact that she has only had one psychotic episode and she did not recognize her symptoms at that time, Dr. Ismail responded that Ms. Herbert had never seen a psychiatrist or a mental health worker prior to the index offences. She has gone through a lot since then and is now socialized about these issues. Dr. Ismail stated that “all we do is discuss symptoms” and Ms. Herbert is now able to recognize them and seek help.
Finally, Dr. Ismail testified that Ms. Herbert has no history of violent behaviour and no pattern of driving while psychotic.
Submissions:
Ms. Lefebvre maintained the hospital’s position that the significant threat threshold as outlined by the Supreme Court of Canada in the case of Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625 (“Winko”) is no longer met for Ms. Herbert. She noted that there must be a real and foreseeable risk of harm, and that a past offence is not necessarily evidence of significant threat. Ms. Lefebvre also submitted that the law requires positive evidence of significant threat.
Ms. Lefebvre relied on the evidence from Dr. Ismail and Dr. Douglas’ Notes that Ms. Herbert no longer has an active psychiatric diagnosis, she has not taken antipsychotic medication for over two years, and there has been no recurrence of any symptoms. There is no evidence that the medications she continues to take for her medical conditions play any role in her risk.
Ms. Lefebvre acknowledged that the role of stress is very important for Ms. Herbert, as are the efforts to manage it. She also cited the evidence that a lower level of stress may trigger psychosis in the future. However, she submitted that Ms. Herbert is now well supported in the community by COAST, Dr. Douglas (whom she has a good rapport with and is committed to continue seeing indefinitely), as well as her family and friends. This is in contrast to her situation prior to the index offences.
Ms. Lefebvre submitted that the evidence demonstrated Ms. Herbert has good insight into the stressors that led to the incident and her need for ongoing support for her mental health. She has demonstrated an ability to remove herself from situations that are stressful and undermine her mental health.
Ms. Lefebvre relied on Dr. Ismail’s Clinical and Composite Assessment of Risk (cited at paragraph 35 of these Reasons), and the unanimous opinion that “Ms. Herbert’s risk to public safety is low and no longer exceeds that of the general population.”
Ms. Curry reminded the panel that the primary goal of the ORB is to ensure public safety. She noted that the index offences occurred not quite four years ago, and Ms. Herbert’s initial hearing was just last year. Ms. Curry submitted that Ms. Herbert stopped taking antipsychotic medication over two years ago and did not wish to try Abilify. Ms. Herbert has ongoing stressors in her life, including civil litigation, which could trigger psychosis again. Ms. Curry submitted that if Ms. Herbert lost her supports in the community she would be in a similar situation as the time of the index offences.
Ms. Curry raised concerns about Ms. Herbert’s insight in light of the fact that she no longer has a psychiatric diagnosis and has no recollection of the days leading up to the index offences. Ms. Curry emphasized that when unwell, insight is one of the first things to go. Ms. Curry added that although another psychotic episode may be less likely as time goes on, not a lot of time has passed since the index offences.
Ms. Curry stated that although Ms. Herbert has engaged in counselling, it is unfortunate that she has not demonstrated empathy for the victim’s family. She submitted that this reflects on Ms. Herbert’s insight into the serious consequences of decompensation. Ms. Curry maintained that the relapse scenario could happen within days, noting that a car is a common weapon of opportunity and anyone on the road is a potential victim. Ms. Curry therefore asked that Ms. Herbert’s Conditional Discharge be maintained.
Mr. Byers took the same position as the hospital and agreed with Ms. Lefebvre’s submissions. He stated that it was unfair to say that Ms. Herbert had no empathy or regret, as she had spent a long time in counselling to deal with her guilt. Mr. Byers submitted that there is a low, if any, likelihood that Ms. Herbert will ever be in the same situation that she was at the time of the index offences. She is highly engaged in her very strong plan to move forward and has insight into her triggers. Mr. Byers stated that if we accept Dr. Ismail’s evidence the panel is obligated to grant an Absolute Discharge.
Analysis and Conclusions:
After considering all of the evidence and the submissions of the parties, the panel concluded that Ms. Herbert no longer represents a significant threat to the safety of the public. In coming to this conclusion, the panel carefully considered the decision of the Supreme Court of Canada in Winko. In that case, the Court stated that a significant threat to the safety of the public must be: more than speculative in nature and supported by the evidence; significant, in the sense of there being a “real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying”; and the conduct giving rise to the harm must be criminal in nature. Further, the Court stated that there must be a positive finding of a significant threat to the safety of the public in order to support restrictions on an NCR accused’s liberty. Something else, for example uncertainty, cannot suffice.
In the Winko case, the Supreme Court of Canada also stated that in coming to a conclusion on the issue of significant threat, 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 mental condition and the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community, and the recommendations provided by experts who have examined the NCR accused.
The panel accepted Dr. Ismail’s testimony and agreed with Ms. Lefebvre’s submissions. While the incident in this case was exceptionally tragic and caused the death of a beloved family member, the law requires the panel to consider the factors set out by the Supreme Court of Canada cited above.
The evidence was clear that Ms. Herbert has not taken antipsychotic medication for over two years and has not experienced any symptoms of psychosis during that time. This evidence came from Dr. Ismail, Dr. Douglas, and other members of the COAST team that have been seeing Ms. Herbert regularly. While there may have been some confusion or differing reports about how Ms. Herbert came to stop the antipsychotic medication, it was clear that the medication was not being recommended for her now. While Ms. Herbert does have a certain personality style that may be challenging and disconcerting at times, these are not symptoms of psychosis, and the evidence did not establish that her personality style contributes to her risk to the public.
The panel found that Ms. Herbert’s circumstances now are very different from what they were at the time of the index offences. Ms. Herbert experienced significant life stressors over a period of time and isolated herself leading up to the index offences. She had never seen a psychiatrist or mental health worker prior to the index offences and felt she had nowhere to turn for help. Although Ms. Herbert continues to experience significant life stressors, she has multiple professional and informal supports in the community and has developed insight into her symptoms through discussions with her psychiatrists and counselling. She has demonstrated a willingness and commitment to maintain her wellness by continuing to engage with these supports long-term, and she is a fierce advocate for her own health.
While it certainly remains a possibility that Ms. Herbert will experience another psychotic episode, she now has the tools to address it before she engages in any dangerous behaviours. It is also possible that Ms. Herbert will not be able to recognize symptoms if she experiences another psychotic episode. If that were to occur, the panel was satisfied that there are sufficient “eyes” on Ms. Herbert and supports in the community such that intervention would occur at an early stage.
Finally, it was an important factor that Ms. Herbert has no history of violence, no prior criminal record, and no pattern of engaging in dangerous behaviours while psychotic. The incident in this case was an extremely tragic and unexpected confluence of events that is unlikely to occur again on the evidence. While apologies and expressions of empathy and remorse are not factors for the Board to consider in this context, the panel noted that there was evidence that Ms. Herbert had expressed remorse about the incident.
For all of these reasons, the panel concluded that the evidence did not support a positive finding that Ms. Herbert is a significant threat to the safety of the public and was therefore required to grant her an Absolute Discharge.
DATED this 13th day of April 2026, at the City of Toronto, in the Toronto Region.
Ms. S. Clapp
Alternate Chairperson
__________________
Office of the Registrar
Ontario Review Board
1 Although there is mention of a diagnosis of borderline personality disorder in the CMHA Case Notes at page 21 of the Hospital Report, Dr. Ismail had no knowledge of this diagnosis and did not feel that Ms. Herbert met the diagnostic criteria.