Re: L. (S.), 2026 CanLII 39753

Ontario Review Board

Re: L. (S.)

ORB File No: 8960

Hearing held on: Friday, March 27, 2026

Place of hearing: St. Joseph's Healthcare Hamilton West 5th Campus, 100 West 5th Street

Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. G. Beasley

Members: Dr. R. Kunjukrishnan

Dr. G. Stones

Ms. J. Fuller

Mr. A. Bouvier

Parties Appearing:

Accused: L. (S.) (by video teleconference)

Counsel: Ms. B. Bromberg (by video teleconference)

The person in charge of hospital: Counsel: Ms. L. Barney

Attorney General of Ontario: Counsel: Mr. B. Adsett

*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 29, 2026)

Introduction

[1]. The accused, L. (S.), is charged with one count of indecent act and two counts of failing to comply with a probation order, contrary to the Criminal Code of Canada. On February 4, 2026, Mr. L. (S.) was found unfit to stand trial by the Ontario Court of Justice. The Court did not make a disposition but remanded Mr. L. (S.) to the jurisdiction of the Ontario Review Board (“ORB”) for that purpose.

[2]. On March 27, 2026, the ORB convened a hearing at St. Joseph's Healthcare Hamilton, (“the hospital”), pursuant to s. 672.47(1) of the Criminal Code for the purposes of conducting Mr. L. (S.)’s initial disposition hearing. Due to a medical issue, Mr. L. (S.) was unable to appear in person but attended the hearing by way of video teleconference. Mr. L. (S.) was represented by counsel, Ms. Bromberg, who also attended by way of video. Ms. Barney appeared as counsel for the hospital and Mr. Adsett as counsel for the Attorney General of Ontario.

Index Offence Allegations

[3]. The allegations against Mr. L. (S.) are taken from the Hamilton Police Service Crown Brief Synopsis:

“History:

On December 23 2022, L. (S.) was bound to a Suspended Sentence with conditions to Keep the Peace and be of Good Behaviour. This Order is in force for a period of three years and was authorized by the Honourable Justice J. NADEL.

On December 19th 2023, L. (S.) was bound to a different Suspended Sentence with conditions to Keep the Peace and be of Good Behaviour. This Order is in force for a period of two years and was authorized by the Honourable Justice M. ZIVOLAK.

Current Incident:

On October 5th 2025, police were dispatched to a sex offence just occurred call at Cherry Heights Park located at 90 Stoney Brook Dr, Stoney Creek. The reported information was that a tan male in his 60’s wearing a white baseball hat, salmon coloured shirt and grey sweatpants was masturbating on a bench by the playground.

Police attended and located the male, identified to be L. (S.). L. (S.) was approximately 10- 20ft from a children’s playground when he was located. While no children were at the playground at the time, there were 2 youths seen playing by the baseball diamonds still within the park.

When informed of the reason for the stop, L. (S.) denied any involvement and wished to leave. However since he matched the description provided and was located on the bench by the playground described by the complainant, police placed him in investigative detention at 13:11hrs. He was cautioned and provided with an opportunity to speak with a lawyer however he refused.

During the investigation, police spoke with S. (M.) who reported that while she was walking through the park along the path, she noticed L. (S.) on the bench. She described that when she observed him, L. (S.) was stroking his penis which had been pulled outside of his pants. Disturbed by what she had witnessed, (M.) confronted L. (S.), who apologized for his actions.

(M.) informed police of a second witness as well, later identified to be J. (W.). J. (W.) reported a very similar interaction with L. (S.), with him masturbating as she was walking by. J. (W.) walked away from L. (S.) and approached (M.) to warn her; however (M.) had already notified police.

Given the information at hand, RPG was formed to arrest and charge L. (S.) with Indecent Acts. At 13:24hrs, L. (S.) was informed he was now under arrest and was provided his RTC and Caution.

Subsequent investigation revealed that L. (S.) was bound to two separate Suspended Sentences with Keep the Peace conditions. L. (S.) was updated of the additional charges.”

Current Diagnosis

[4]. Current diagnosis from the Hospital Report is as follows:

Schizoaffective Disorder

Criminal Record

[5]. Mr. L. (S.)’s criminal record is as follows:

Date Sentenced

Offence

Sentence/Status

2002-04-26 St. Catharines, ON

(1) Mischief Over $5000, sec 430(3) CC (2) Fail to Appear, sec 145(5) CC

(1-2) Susp sent & probation 12 mos on each chg

2022-12-23 Hamilton, ON

Criminal Harassment, sec 264(3) CC

Suspended sentence & probation 3 yrs (credit for the equivalent of 45 days pre-sentence custody) & mandatory weapons prohibition sec 109 CC

2023-10-20 Hamilton, ON

Fail to Comply with Order, sec 145(5)(a) CC

1 day (credit for the equivalent of 29 days pre-sentence custody)

2023-12-19 Hamilton, ON

Fail to Comply with Probation Order, sec 733.1(1) CC

1 day & probation 2 yrs (credit for the equivalent of 120 days pre-sentence custody)

2024-09-05 Hamilton, ON

Fail to Comply with Probation Order, sec 733.1(1) CC

1 day (credit for the equivalent of 21 days pre-sentence custody)

2024-09-05 Hamilton, ON

Fail to Comply with Appearance Notice, sec 145(3) CC

1 day conc (credit for the equivalent of 21 days pre-sentence custody)

Background and Personal History

[6]. Due to his mental status, Mr. L. (S.) was unable to meaningfully participate in providing information regarding his background and history. His mother was contacted and provided basic information. In addition, health records were obtained for the purpose of an assessment conducted with respect to fitness. Mr. L. (S.) is the oldest of two boys raised in Hamilton by his mother. Mr. L. (S.) had little contact with his father after the age of six. He did reside with his father on a number of occasions during his adolescence. There is very little information with respect to his academic performance, but it is understood he completed high school but did not continue into post-secondary education. Mr. L. (S.)’s medical records indicate that he began to experience mental health issues as an adolescent and was hospitalized at 16 years of age. The record reveals a long-standing history of in-patient psychiatric admissions and stabilization of his symptoms. After discharge to the community, he would become noncompliant with his prescribed medication and be returned to hospital. As a result of his refusal to take his prescribed medication he has been evicted from apartments in the community over 30 times. He has not been involved with outpatient mental health services for approximately six years and has been of no fixed address and using the shelter system in Hamilton for approximately the past two years. It is reported that Mr. L. (S.) began using alcohol at the age of 13 and although he used it sparingly, he has had periods of heavy alcohol use in adulthood, in addition to regular cannabis use.

Position of the Parties

[7]. At the outset of the hearing, Ms. Barney submitted that Mr. L. (S.) is unfit to stand trial and represents a significant threat to the safety of the community. She submitted that the necessary and appropriate disposition was a Detention Order with privileges as outlined in the Hospital Report.

[8]. Mr. Adsett supported the submissions of Ms. Barney with respect both to the finding of unfitness and the recommendations for the Detention Order.

[9]. Ms. Bromberg stated that she agreed with the submission of Ms. Barney with respect to Mr. L. (S.)’s fitness but wanted to hear the evidence before making submissions on the recommended Detention Order.

Evidence

[10]. The evidence on behalf of the hospital was presented by Dr. Ferencz. He is Mr. L. (S.)’s attending psychiatrist and was also the author of the original fitness assessment prepared for the court. Dr. Ferencz also authored the Hospital Report which was entered as an exhibit at the hearing. Dr. Ferencz was asked when he last assessed Mr. L. (S.)’s fitness to stand trial. Dr. Ferencz stated that he spoke to Mr. L. (S.) yesterday but, as he has for some period of time, Mr. L. (S.) would not discuss the charges with Dr. Ferencz. Mr. L. (S.) believes that the charges have been dealt with and that he should be released from the hospital immediately to return to the community. Dr. Ferencz says that Mr. L. (S.)’s attitude is that if he does not acknowledge the events then they will go away. Dr. Ferencz stated that Mr. L. (S.) requires ongoing treatment before he gains any insight into the fact that he has outstanding criminal charges. He will not name the charges when asked but refers to them obliquely as him being in the wrong place at the wrong time and a case of mistaken identity.

[11]. Dr. Ferencz stated that Mr. L. (S.) does have some understanding of the court process. He can understand the difference between a guilty plea and a not guilty plea in court. He has a rudimentary understanding of the possible outcomes, that if found not guilty of a charge you are released but he will not discuss that in any detail. He does understand the meaning of an oath. He does not understand the meaning of perjury and said he would ask his lawyer to help him. Mr. L. (S.) does not know what the role of the Crown Attorney is but does state that a judge will make a decision. When asked if Mr. L. (S.) could meaningfully communicate and participate in a trial, Dr. Ferencz stated that he cannot because he will emphatically state that it is a misunderstanding and that he was not involved in any criminal offences. He does not have a rational understanding of his involvement in the court process. He cannot meaningfully participate in the trial because he believes he does not need to participate in any court process.

[12]. Dr. Ferencz stated that initially on the Forensic Assessment Unit (FAU), Mr. L. (S.) presented with pressured speech and was very disorganized. With the use of a Treatment Order, Mr. L. (S.) began taking an oral antipsychotic medication. This resulted in an improvement in his condition, and he was less agitated with less pressured speech. He has not presented any kind of management problem on the unit. There have been no aggressive behaviours. He is very cooperative with being a patient on the assessment unit. Mr. L. (S.) continues to display residual symptoms of psychosis. He obsesses over a number of ideas, primarily that of being released to the community immediately because his matters have been dealt with. Mr. L. (S.) is incapable of consenting to treatment, and his Substitute Decision Maker (SDM) is his mother.

[13]. Dr. Ferencz stated that, in his opinion the necessary and appropriate disposition is a Detention Order. Mr. L. (S.) has no possible residence available to him in the community. If he did transition to the community then he would stop taking his medication with the return of all of his symptoms. Dr. Ferencz was asked about the recommended privilege which at its highest is indirectly supervised in the community. He stated that it would be a very gradual process in allowing Mr. L. (S.) privileges. It would commence with Mr. L. (S.) being able to exercise indirectly supervised access to the Secure Unit, then to the hospital and grounds and finally to the community if deemed appropriate by the treatment team.

[14]. In response to a question from Mr. Adsett, Dr. Ferencz stated that Mr. L. (S.) has no insight into either his illness or his need for medication. He does not appreciate his disorder or the consequences of accepting treatment or refusing treatment. He does not acknowledge his illness in any respect.

[15]. Ms. Bromberg stated that she did not have any questions with respect to the issue of fitness. She asked Dr. Ferencz if any form of risk assessment had been completed to this point in time. Dr. Ferencz stated that a psychological assessment had not been done and the only risk assessment to date comes from clinical observations. Dr. Ferencz stated that Mr. L. (S.)’s risk is related to his mental illness. While on the unit he is cooperative and pleasant, he remains a significant threat to the safety of the public. Dr. Ferencz stated that there will be community resources available to Mr. L. (S.), if necessary, in the future. At the present time he has no place of residence. The treatment team would consider the use of a Community Treatment Order (CTO) if that is indicated. Mr. L. (S.) would need to have long-acting injectable (LAI) medications because he would not be compliant with oral medications. To this point in time Mr. L. (S.) has not been able to exercise any privileges as they are not available for patients on the FAU. Dr. Ferencz was asked about putting Mr. L. (S.) on a waitlist for community housing as a term of the proposed disposition. He stated that the team can try to put Mr. L. (S.) on the list but there is no realistic possibility of him obtaining community living in the upcoming reporting year. Dr. Ferencz agreed that it might facilitate Mr. L. (S.)’s community placement in the future if he were on a list.

[16]. In response to questions from a Board member, Dr. Ferencz stated that Mr. L. (S.) has not displayed any sexually inappropriate behaviour during his time on the Assessment Unit. Dr. Ferencz agreed that Mr. L. (S.) was 51 years of age and that his history indicated an onset of illness at the age of 16 which was not diagnosed until he was 45 years old. Dr. Ferencz said that there was no immediate plan to engage in any neurocognitive testing due to Mr. L. (S.) continuing to display symptoms of his mental illness but that is a possibility in the future. Dr. Ferencz stated that he was unsure with respect to the timeframe for Mr. L. (S.) possibly being treated to the point where he would be considered fit to stand trial. He said that given Mr. L. (S.)’s previous treatment and the long periods where he has been untreated in the community it is difficult to assess where Mr. L. (S.)’s level of fitness will plateau. In the event that the treatment team do find Mr. L. (S.) to be fit to stand trial they would immediately contact the Review Board to conduct a hearing and if the court found Mr. L. (S.) to be fit, the treatment team would request a keep fit order. Dr. Ferencz agreed that it was a concern given Mr. L. (S.)’s understanding or belief that the charges against him have been dealt with that he might wander away if granted indirectly supervised privileges to the community. That is why these privileges are very gradually introduced so that the treatment team can satisfy themselves as to the risk Mr. L. (S.) poses to the community.

[17]. In re-examination, Dr. Ferencz was asked by Ms. Barney if there was a downside to having a community living privilege in the proposed Disposition. Dr. Ferencz agreed that there are risks and benefits to including such terms but that in some cases if it is present in a disposition then people expect it to be granted.

[18]. In response to a question from Mr. Adsett, Dr. Ferencz stated that in the event that Mr. L. (S.) stop taking his antipsychotic medications, his decompensation would likely take place in days to weeks.

[19]. In response to a question from Ms. Bromberg, Dr. Ferencz stated that it was possible that Mr. L. (S.) would be found fit to stand trial before he had the opportunity to transition to reside in the community. Dr. Ferencz stated that in the event he was found fit and the Court did not return him to hospital but released him to the community, the hospital would make every effort to assist Mr. L. (S.) in that transition by providing him with assistance and medication. Dr. Ferencz stated that he would not take a position one way or the other with respect to including a community residence privilege in the proposed Disposition but would leave that to the decision of the Board.

[20]. Mr. L. (S.) gave evidence on his own behalf. He stated that he is ready and able to live in the community at this time. He stated that he is healthy and that he is just a “nice regular guy” and is capable of living on his own. When asked about his antipsychotic medications, Mr. L. (S.) stated that he will take it if asked to by the treatment team. He stated, however, that he would not take antipsychotic medication by way of LAI because he does not like needles; he preferred to continue with oral medication.

Submissions

[21]. At the conclusion of the evidence, all counsel reiterated the submissions made at the outset of the hearing: Mr. L. (S.) is unfit to stand trial at this time. Counsel also jointly submitted that the necessary and appropriate disposition was a Detention Order with the conditions and privileges as outlined in the Hospital Report. Ms. Bromberg submitted that it would also be appropriate to include a community living privilege in the Disposition to enable Mr. L. (S.) to be placed on a list for a residence in the community.

Analysis and Disposition

22. For many years, the assessment of an accused to stand trial has utilized what became known as the Taylor Test, often summarized as the “limited cognitive capacity test.” The test was essentially a series of questions about the role of the parties to the trial, the meaning of an oath and the potential consequences. In 2023 the Ontario Court of Appeal released a decision of a five justice panel in R. v. Bharwani 2023 ONCA 203. This decision was in turn appealed to the Supreme Court of Canada which released its judgment in R. v. Bharwani, 2025 SCC 26 on July 25, 2025. In upholding the decision of the OCA, Justice O’Bonsawin, writing for the majority in a 6:3 decision stated:

6I disagree. As I will explain, an accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence.

And in summary:

77To conclude, the text, statutory context, and purpose of the definition of “unfit to stand trial” support an interpretation of the capacity threshold that requires an accused to be able to make reality-based decisions in the conduct of their defence and intelligibly communicate these decisions to counsel or the court. This necessitates a reality-based understanding of the nature or object and possible consequences of the proceedings, as well as an ability to understand the available options and their consequences, and to select between those options when making decisions. The accused is not required to make decisions in their best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating these decisions.

[23]. The Board was presented with a joint submission by counsel that Mr. L. (S.) is unfit to stand trial. This was supported by the evidence of Dr. Ferencz and the contents of the Hospital Report, in particular the following paragraph at page 15:

“In anticipation of his initial ORB hearing, Mr. L. (S.) was interviewed with specific regard to his fitness to stand trial. When asked about his current charges he stated that his charges were wrongfully laid in the first place and that it was a case of mistaken identity. He also stated that the matter had been dealt with at Court and that he had been released. He did not know why the police had brought him to hospital and he did not appreciate the reason for his ongoing detention in this facility. Mr. L. (S.) appeared to understand a few rudimentary principles of the Court’s process. He knew that his lawyer’s job was to represent him in Court. He did not know the function of the Crown Attorney. He understood that he ultimate decision in Court falls to the Judge. He denied knowing his plea options. Mr. L. (S.) refused to discuss the matter any further as he did not feel that an exploration of the consequences of a hearing or any other Court-related matters was relevant to him. He asked that the interview be terminated. Based on the above-described interview it is apparent that Mr. L. (S.) does not have a reality-based understanding of the Court’s process, nor does express any willingness to meaningfully participate in his own defence. This behaviour is felt to be the direct result of the residual symptoms of his mental illness. It is therefore my opinion that he does not meet the criteria for fitness to stand trial at this time.”

[24]. The Board is unanimous in accepting the opinion of Dr. Ferencz that Mr. L. (S.) cannot meaningfully participate in his trial and is therefore unfit to return to court at this time.

[25]. The Board is unanimous in accepting the recommendations of the hospital with respect to the contents of the Disposition as outlined in the Hospital Report. The proposed Disposition is necessary and appropriate and the least onerous and restrictive option available in the circumstances. Mr. L. (S.) is in the early stages of optimal treatment for his mental illness. Once he is transitioned from the FAU to a unit that permits more expansive privileges, Dr. Ferencz testified there will be a gradual increase in privilege level to allow Mr. L. (S.) more access to the hospital and grounds and potentially, the community. Dr. Ferencz acknowledged that there are both risks and benefits to including community living in the disposition even though there is no realistic prospect of Mr. L. (S.) being discharged in the next year. The Board notes that a significant factor in Mr. L. (S.)’s diagnosis is his belief that he does not face any charges and should be immediately released to reside in the community. This belief would only be greater if such a term were included. The Board does not accept that there is any reason to include a community living privilege in the terms of the Disposition at this time.