Re: B. (L.J.), 2026 CanLII 34261

Ontario Review Board

Re: B. (L.J.)

ORB File No: 8834

Hearing held on: Tuesday, March 3, 2026

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

Pursuant to: Sections 672.48(1) and 672.82(1) of the Criminal Code

Before: Alternate Chairperson: Ms. T. Mann Members: Dr. S. Lessard Dr. A. Kerry Mr. E. Siebenmorgen Ms. K. Brisson

Parties Appearing: Accused: B. (L.J.) (virtual attendance) Counsel: Ms. F. McNestry (virtual attendance)

The Person in Charge of Hospital: Counsel: Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Mr. J. Huber

*Pursuant to s. 672.501(1) of the Criminal Code, the Ontario Review Board prohibits the publication, broadcasting, or other transmission of any information that could identify a victim in this matter or a witness who is under 18 years of age.

REASONS FOR DISPOSITION

(Dated April 13, 2026)

Overview

1. The accused, B. (L.J.), is charged with four counts of sexual touching, two counts of sexual assault, and two counts of child luring, all contrary to the Criminal Code of Canada. The charges relate to a time period between 2008 and April 6, 2012. On July 8, 2025, Justice M. Garson of the Superior Court of Justice found that Mr. B. (L.J.) was unfit to stand trial. Justice Garson did not render a disposition and referred Mr. B. (L.J.) for a hearing before the Ontario Review Board (“ORB”) pursuant to s. 672.47(1) of the Criminal Code. At the time of his arrest on the charges and throughout the criminal court process, Mr. B. (L.J.) had been released on a promise to appear with an undertaking.

2. Mr. B. (L.J.) is currently subject to a disposition dated November 12, 2025, whereby he was discharged subject to a number of conditions, chief among which was a no contact order between himself and the two complainants who were underage at the time the alleged sexual offences were said to have occurred.

3. On March 3, 2026, at the request of the person in charge of the Southwest Centre for Forensic Mental Health Care (“Southwest Centre”) in St. Thomas, the Board convened an early hearing pursuant to ss. 672.48(1) and 672.82(1) of the Criminal Code. As a result of his medical condition, Mr. B. (L.J.) was permitted to appear virtually from his home in Toronto, Ontario. He was represented at the hearing by counsel, Ms. Fiona McNestry. Ms. McNestry appeared virtually as well, with the prior approval of the Board. Mr. B. (L.J.) was assisted at the hearing by his spouse, who remained off-camera for the hearing.

Index Offence Allegations

4. The allegations against Mr. B. (L.J.) relate to a time period between the first day of September 2008 and the 6^th day of April 2012. The alleged victims are two females, both under the age of 16 years. The details of the allegations are set out in the Hospital Report dated February 18, 2026, which was filed as an exhibit at the hearing.

Current Diagnoses

5. Mr. B. (L.J.)’s current diagnoses are taken from the Hospital Report as follows:

Metastatic Lung Cancer (Stage IV, Non-Small Cell Adenocarcinoma)

Severe Degenerative Disc Disease of the Spine

Criminal History/Mental Health History/Substance Use History

6. Mr. B. (L.J.) has no history of criminal convictions, no mental health history and no history of substance use.

Background

7. Mr. B. (L.J.) was charged on August 5, 2019, and indicted to stand trial on November 2, 2022. Between November 2, 2022 and July 8, 2025, there were a number of appearances in the Superior Court of Justice. At some point during this timeframe, Mr. B. (L.J.) suffered a significant decline in his health due to a diagnosis of metastatic lung cancer. Scheduled trial dates were vacated when Mr. B. (L.J.)’s medical condition became sufficiently serious to prevent him from attending court. Ultimately, it became apparent that Mr. B. (L.J.)’s fitness to stand trial had been compromised due to his ongoing medical difficulties. Consequently, the Court ordered an assessment of Mr. B. (L.J.)’s fitness to stand trial, which was completed by Dr. W. Komer whose report was dated May 12, 2024. Dr. Komer concluded that Mr. B. (L.J.) was unfit to stand trial. Dr. Komer’s opinion was accepted by Justice M. Garson and Mr. B. (L.J.) was found unfit to stand trial and remanded to the jurisdiction of the Ontario Review Board for disposition.

8. Thereafter, Dr. Ajay Prakash was asked to conduct an assessment of Mr. B. (L.J.) for the purposes of the initial hearing pursuant to s. 672.47(1) of the Criminal Code. In addition to reviewing the comprehensive report prepared by Dr. Komer, Dr. Prakash conducted his own interview of Mr. B. (L.J.) and obtained collateral information from Mr. B. (L.J.)’s spouse. Dr. Prakash also concluded that Mr. B. (L.J.) was unfit to stand trial. Dr. Prakash’s opinion was as follows:

“Taking the above into account, it is the undersigned’s opinion, from a psychiatric point of view, that Mr. B. (L.J.) is unfit to stand trial. Mr. B. (L.J.) is not capable of communicating rationally with counsel or the Court. He is unable to understand relevant information, apply that information in the context of their decision-making, and intelligibly communicate. Mr. B. (L.J.) is not able to be meaningfully present and meaningfully participate at his trial.”

9. In addition, and although not necessary for the purposes of the initial hearing, Dr. Prakash opined that Mr. B. (L.J.) was not a significant threat to the safety of the public at that time. Finally, Dr. Prakash opined that as a result of Mr. B. (L.J.)’s medical condition, he considered him to be permanently unfit. Mr. B. (L.J.)’s unfitness was a direct result of the manifestations of his metastatic cancer and other physical health conditions.

10. A number of months later, Mr. B. (L.J.)’s physical and cognitive capabilities worsened. The Hospital sought an early review of his disposition on the basis that Mr. B. (L.J.) was permanently unfit to stand trial and did not pose a significant threat to the safety of the public.

Position of the Parties

11. At the outset of the hearing, counsel for the Hospital, Ms. Zamprogna, stated that in the opinion of the hospital and the treatment team, Mr. B. (L.J.) is permanently unfit to stand trial and did not meet the threshold for significant threat. Accordingly, the Hospital was asking that Mr. B. (L.J.) be returned to court with a recommendation that the charges against him be stayed. Counsel for Mr. B. (L.J.) supported the Hospital’s position. Counsel for the Attorney General advised he anticipated joining the position of the Hospital but wished to reserve his position until the conclusion of the evidence.

12. At the conclusion of the evidence, Counsel for the Attorney General advised his concerns were addressed and as such there was a joint position before the Board. All parties maintained their respective positions in submissions.

Evidence at the Hearing

13. The Board had available to it information in the form of the documents forming the Record, evidence contained in the (revised) Hospital Report dated February 18, 2026 (Exhibit 3), as well as evidence provided by Mr. B. (L.J.)’s attending forensic psychiatrist, Dr. Ajay Prakash. In addition, during the hearing, the panel requested a copy of the transcript of the attendance before the Honourable Justice M. Garson setting out the background in support of the Court’s determination that Mr. B. (L.J.) was unfit to stand trial (Exhibit 4).

14. Dr. Prakash endorsed the contents of the Hospital Report and provided the following summary of the evidence in support of the Hospital’s position regarding fitness to stand trial:

(a) Mr. B. (L.J.) has a major neurocognitive disorder secondary to his medical [physical health] conditions;

(b) Mr. B. (L.J.) has suffered a significant decline in cognitive functioning since 2019 when he was diagnosed with metastatic lung cancer. Since that time, his mental and physical health has continued to decline which, in turn, has worsened his neurocognitive disorder;

(c) There has been suspected further metastasis of cancer into his lymph nodes and mouth areas; recent biopsies have made it painful for Mr. B. (L.J.) to speak and so he is currently communicating mostly by means of hand gestures;

(d) Dr. Prakash last assessed Mr. B. (L.J.) for fitness to stand trial on February 25, 2026; the assessment was virtual;

(e) At that time, Dr. Prakash concluded that Mr. B. (L.J.)’s mental condition has overwhelmed his ability to make and communicate decisions as to the conduct of his defence or to instruct counsel to do so;

(f) Mr. B. (L.J.) cannot communicate rationally from a fitness point of view;

(g) Mr. B. (L.J.) cannot process or understand information relevant to the legal charges facing him or meaningfully apply it in the context of decision-making;

(h) Mr. B. (L.J.) cannot be meaningfully present or participate meaningfully in the criminal court process;

(i) Mr. B. (L.J.) has been unfit to stand trial since July 8, 2025 and has worsened since the time of his initial Ontario Review Board hearing. Mr. B. (L.J.)’s neurocognitive function will only worsen, in keeping with the progressive nature of his physical health conditions. As such, Mr. B. (L.J.) is permanently unfit to stand trial.

(j) The medications Mr. B. (L.J.) takes for pain (Tylenol 3 and morphine) are not responsible for the decline in his cognition;

(k) Some of the fitness questions Dr. Prakash asked of Mr. B. (L.J.) on February 25, 2026, including answers received were:

a. Question: What service are we [Dr. Prakash, clinical team] with? Answer: Princess Margaret.

b. Question: Do you remember seeing me [Dr. Prakash] before? Answer: No. From Humber? With the lady?

c. Question: Do you have any matters before the court? Answer: No, I have always been good. Never got into trouble. Can’t because of work.

15. Dr. Prakash’s oral evidence on the issue of whether Mr. B. (L.J.) posed a significant threat to the safety of the public included the following facts and circumstances:

(a) Mr. B. (L.J.) is essentially bedridden 24 hours a day and requires his wife’s assistance to perform even basic activities of daily living. His ability to do so continues to deteriorate;

(b) He has had multiple falls and can no longer ambulate independently; and

(c) In Dr. Prakash’s opinion, Mr. B. (L.J.) does not meet the test set out in Winko for significant threat as there is no possibility of even a small risk of great harm: “We’re talking about even less than that”.

16. In response to questions from panel members, Dr. Prakash provided the following information:

(a) Although the treatment team did not formally assess Mr. B. (L.J.) for malingering, Dr. Prakash is satisfied that his unfitness to stand trial is not the result of malingering;

(b) Dr. Prakash based his current opinion on the consistency of Mr. B. (L.J.)’s unfitness, collateral information from his wife and the teams’ observations of him during contacts, including an in-person visit with him in Toronto;

(c) Dr. Prakash did not ask Mr. B. (L.J.) for consent to acquire collateral information from his parents or adult children to gain a more fulsome understanding of Mr. B. (L.J.)’s historical presentation as he is somewhat estranged from his family;

(d) The team did not assess Mr. B. (L.J.)’s risk of sexual offending using tools such as the STATIC-99, which is normed and validated for adult males, including those who are unfit to stand trial. The team’s opinion is that the dynamic risk factors at play are more important to assessing Mr. B. (L.J.)’s risk to public safety than static factors at this time;

(e) Dr. Prakash did not have a sense of Mr. B. (L.J.)’s current level of sexual functioning in part because he did not ask but also because Mr. B. (L.J.) is not capable of having a sensible back-and-forth conversation;

(f) Mr. B. (L.J.) thinks Dr. Prakash and treatment team members are with Princess Margaret Hospital or his cancer team;

(g) Dr. Prakash is not concerned that (potential) female personal support workers (PSWs) assigned to Mr. B. (L.J.)’s care are at risk of sexual harm because there is no evidence to suggest he will have a PSW given his wife is able to perform aspects of intimate personal care (eg sponge baths);

(h) A possible risk scenario of Mr. B. (L.J.) becoming sexually preoccupied with a PSW bathing him is unlikely in Dr. Prakash’s opinion. There is nothing in Mr. B. (L.J.)’s personal history or criminal record to indicate sexual deviance (eg paraphilia). Mr. B. (L.J.) has been with his wife for 14 years. In Dr. Prakash’s opinion, the risk of Mr. B. (L.J.) sexually offending is low.

(i) Mr. B. (L.J.)’s wife works in the building where they live and is only occasionally out of their apartment.

(j) While Mr. B. (L.J.)’s inability to speak without pain may resolve when the lesions from his mouth biopsy heal, this is unlikely to impact his neurocognitive abilities which are the factors driving his unfitness to stand trial.

17. According to Ms. McNestry, Mr. B. (L.J.)’s wife reported that he is physically unable to perform sexually, or move about freely.

Analysis and Conclusions

18. Having considered the evidence, the exhibits and the submissions of counsel, the panel unanimously concludes that Mr. B. (L.J.) remains unfit to stand trial and permanently so.

19. Mr. B. (L.J.)’s progressive cognitive impairment and disorganized thought processes render him unable to understand the nature or object of the proceedings, understand the possible consequences of the proceedings or to communicate with counsel. Moreover, Mr. B. (L.J.) is unable on account of mental disorder to conduct a defence and to instruct counsel to do so. Mr. B. (L.J.) does not have a reality-based understanding of the nature and object and possible consequences of the proceedings and does not have the ability to understand available options, select from those options, understand the basic consequences arising from the options, nor does he have the ability to intelligently communicate the decisions made to counsel or the Court.

20. The charges facing Mr. B. (L.J.) are serious, involve many factual allegations, two victims, are historical in nature and involve complicated court proceedings. Considered contextually, these factors render it highly unlikely that he could meet the elements of fitness to stand trial as established by the Supreme Court of Canada in R. v. Bharwani, 2025 SCC 26, and the Ontario Court of Appeal in Clayton (Re), 2025 ONCA 305. On the record before it, the panel has no difficulty in concluding that Mr. B. (L.J.) is permanently unfit to stand trial.

21. As for the issue of significant threat, the Board adopts in its entirety the formulation set out at pages 25 to 27 of the Hospital Report, as follows:

“There is no indication that Mr. B. (L.J.) poses a risk of serious physical or psychological harm to members of the public. He has no prior criminal record, no pattern of antisocial behaviour, and no established criminogenic risk factors. His HCR-20 Version 3 assessment identified minimal violence risk factors, with few deemed relevant. Any reported psychiatric symptoms do not appear to meaningfully elevate risk, particularly in the context of his profound physical limitations. Overall, Mr. B. (L.J.) presents as a low risk of reoffending in the next 12 months.

Given the chronicity of his medical condition, the absence of a treatable psychiatric illness that attributes [sic – error in original] to his fitness, that there is no realistic prospect of restoration, and the low assessed risk to public safety, it is the recommendation of the treatment team that Mr. B. (L.J.) ought to be returned to court with a recommendation for an inquiry to determine whether a stay of proceedings should be ordered.”

22. This panel of the Board concurs with the opinion of the clinical team that Mr. B. (L.J.) is unfit to stand trial and not likely ever to become fit to stand trial. Further, the Board finds that Mr. B. (L.J.)’s current constellation of symptoms and behaviours does not reach the threshold of significant threat to the safety of the public due to his rapidly declining physical health and its effects on his neurocognitive functioning and mobility.

23. Therefore, the Board recommends that the Court to hold an inquiry pursuant to the provisions of s. 672.851(1) of the Criminal Code to determine whether a stay of proceedings should be ordered.

24. Mr. B. (L.J.) will continue to be bound by the terms of his current Disposition dated November 12, 2025 until the Ontario Review Board issues a new disposition or the Court concludes its inquiry as to whether a stay of proceedings is warranted in all the circumstances.

DATED this 13^th day of April 2026, at the City of Toronto, in the Toronto Region.

Ms. T. Mann Alternate Chairperson Office of the Registrar Ontario Review Board