Re: S. (G.)
ORB File No: 8807
Hearing held on: Friday, November 28, 2025
Place of hearing: Centre for Addiction and Mental Health
Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. C. Finley
Members: The Hon. B. Allen Dr. Y. Alatishe Dr. L. O. Lightfoot Mr. J. Cyr
Parties Appearing:
Accused: S. (G.) Counsel: Mr. L. Sandhu
The person in charge of hospital: Counsel: Mr. D. Blumenkrans
Attorney General of Ontario: Counsel: Mr. Hobson
REASONS FOR DISPOSITION
(Dated January 22, 2026)
Introduction
On April 10, 2025, Mr. S. (G.) was found unfit to stand trial on account of mental disorder on charges of sexual assault (young person under age 16), and sexual interference, all contrary to the Criminal Code.
On November 28, 2025, a panel of the Ontario Review Board (“the Board”) was convened to hold an initial hearing for S. (G.) under s. 672.47(1) and 672.48(1) of the Criminal Code at the Centre for Addiction and Mental Health (“CAMH or the Hospital”) to determine whether S. (G.) remains unfit to stand trial and if so, make a disposition under s. 672.54 of the Criminal Code.
At the start of the hearing the parties adopted a joint position that S. (G.) remains unfit to stand trial and that detention at the Forensic Service at CAMH with privileges up to residing in approved housing is an appropriate disposition. Counsel for S. (G.) requested that the disposition allow S. (G.) permission to remain living in the community at the family home where he currently resides.
At the close of evidence, the parties maintained their position that S. (G.) remains unfit to stand trial, and that the necessary and appropriate disposition is a detention order with privileges up to including residing in approved accommodation. There was disagreement as to the wording of the condition requiring S. (G.) to have no contact with minors. The Hospital and the Crown agreed with S. (G.)’s counsel that S. (G.) be able to reside in approved housing in the community and that pending the determination by the Board that he be able to remain in the community.
On the conditions of the disposition the Crown differed with the Hospital and S. (G.)’s counsel on the wording of the contact condition recommended by the Hospital at page 1 of the Hospital’s Assessment Report submitting that it should state that: “S. (G.) not be in the presence of a child under 16 years of age except in the presence or company of staff or the approved person.”
Dispositions
The Board finds that S. (G.) remains unfit to stand trial and that he should be subject to detention at the Forensic Service at CAMH with privileges up to residing in approved accommodation in the community.
The Board accepts the conditions as recommended by the Hospital page 1 of Hospital’s Assessment Report except that the contact condition should provide that S. (G.) not be in the presence of any person under the age of 16 years unless in the direct company of hospital staff or an approved person.
Fitness to Stand Trial
Section 2 of the Criminal Code provides that unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so.
The Board must decide whether, on the day of the hearing, S. (G.) is unfit to stand trial within the meaning of s. 2 of the Criminal Code looking at his inability to instruct counsel and to conduct a defence on his behalf.
Medical History
Current Diagnosis
- S. (G.)’s current diagnosis is Mild Vascular Neurocognitive Disorder (“Expressive Aphasia”) caused by a stroke he suffered in October 2023.
The Evidence
The Board has before it a Court-ordered Assessment Report prepared by forensic psychiatrist, Dr. A. Mishra, dated March 29, 2025, prepared subject to a Form 48 order dated February 4, 2025, the purpose of which was to assess S. (G.)’s fitness to stand trial on the offences charged. The Board also has a Board-ordered Assessment Report dated October 24, 2025, co- authored by Dr. Deep Jaiswal. The Reports contain brief accounts of S. (G.)’s personal, medical, and psychiatric backgrounds. Other documentary evidence before the Board is three Pre-hearing Conference Reports dated in June, July, and September 2025, the police Synopsis, the Criminal Information, and the transcript of the OCJ fitness trial.
S. (G.) had the assistance of a Punjabi interpreter during the Board hearing. He is not able to speak, read, or write in Punjabi due to his aphasia condition. He is also illiterate in English and Punjabi.
Index Offence
- The circumstances of the index offence are summarized as follows:
[The victim] advised police that between the dates of July 1, 2024 (when the family moved to the area) and yesterday’s date (September 19, 2024), she attended an address in the town of Adjala-Tossorontio where she had a dance party with friends in the basement of the residence. [The victim] advised that while playing with friends, the accused motioned for her to approach him, away from the other children. The accused put [the victim] on his lap and began touching her. [The victim] advised the accused put his hands inside her shirt where he touched her breasts and stomach. The accused then proceeded to place his hands down the front of [the victim’s] pants and underwear, where the accused then touched her vagina. (charges #1 and #2)
On September 20, 2024, the accused attended the Nottawasaga Detachment and turned himself in to police. S. (G.) was subsequently arrested and held for bail.
Criminal History
- There is no evidence of S. (G.) having a criminal history in India or Canada before the index offence. In the Hospital’s Assessment Report S. (G.)’s nephew indicated that he was not aware of S. (G.) having any history of sexual assault or abuse, as nothing of that sort was brought to his attention. The nephew indicated that the children of the family were not left alone with S. (G.).
Substance Use
- There is no history of misusing alcohol or other substances. S. (G.) drank alcohol in his past but has not done so for the last 24 years.
S. (G.)’s Personal and Psychiatric History
Before the Current Reporting Year
Personal History
Following the index offence S. (G.) was released from pre-trial detention on October 17, 2024. He is a 59-year-old man from India who first came to Canada on a visa in 2018. He has been married for some 37 years. He is currently in Canada on a visa obtained in 2021. He has three adult children and five grandchildren, three of whom live in Canada. At the time of the Hospital’s Assessment Report S. (G.) resided with his sister’s family.
S. (G.) attained an education in India at the grades three or four level. Before the stroke he could speak in Punjabi and would read the Punjabi newspaper, but he could not write in Punjabi. He is not able to speak or write in English. S. (G.)’s most recent employment was with a trucking business he owned. He eventually hired a driver and purchased three or four trucks but sold the business in 2017 and began visiting his family in Canada.
Review of S. (G.)’s Psychiatric History and Symptoms
The Hospital’s Assessment Report, dated October 24, 2025, indicates that beyond the psychiatric evidence contained in the Assessment Report by Dr. Mishra, dated March 29, 2025, there are no additions to S. (G.)’s psychiatric information. The Hospital’s Assessment Report relies on the contents of Dr. Mishra’s Report and collateral information and interviews with family members obtained by the Hospital.
S. (G.)’s son indicated that S. (G.) had no previous psychiatric consultations, no history of hospitalizations for mental health reasons and had never been prescribed psychotropic treatments. There was also no history of suicidal or self-harm behaviours.
The Hospital Report addressed S. (G.)’s circumstances after his surgery for the stroke, as reported by S. (G.)’s son, cited verbatim from the Report at page 7 as follows:
After few days of the surgery, everything got changed. He could not speak or communicate. Then he started eating very less, because they have changed his diet, they said no oily food and sugary things. It was pretty hard for him. He got pretty weak after the stroke. It took him five to six months to get back to his normal diet, he got adapted to this life.” S. (G.) maintained the ability to ambulate at the time, as his son stated, “He was able to walk. He was even walking in the hospital.
Post-surgery S. (G.) was prescribed aspirin and medications for diabetes and cholesterol.
Regarding S. (G.)’s post-surgery symptoms, for instance, S. (G.) demonstrated a basic understanding of simple commands such as requests to wave his hands and close his eyes. He was shown images used to represent the responses “yes” and “no.” While at first, he did not correctly identify the images that represented each response, when the responses represented by images were explained to him, he was able to identify the image that represented the “yes” and “no” responses.
S. (G.) was able to point to the image representing the response “no” when asked if he experienced a persistently depressed mood. He pointed to the response “yes” when asked if he had trouble falling asleep. He gestured that he ate two meals daily and pointed to the response “yes” when asked if he enjoyed listening to music, watching television and spending time with his family. He also pointed to the image representing the response “no” when asked if he experienced auditory hallucinations or delusions.
When asked leading questions he acknowledged experiencing suicidal thoughts but “denied any active suicidal plans or intent.” S. (G.) indicated that he was not experiencing self-harm, suicidal, violent, or homicidal thoughts.
S. (G.) was asked if he had been alone with any children in the past five months and he pointed to the image representing the response “no.” When asked if he was independent in his activities of daily living, he pointed to the image representing the response “yes.” But he pointed to the image representing the response “no” when asked if he did his own banking, grocery shopping or cooking.
Assessment of Fitness to Stand Trial
Dr. Mishra concluded that S. (G.) was able to understand the questions in the fitness assessment, if simplified for him and if asked with the assistance of a Punjabi speaking interpreter. He understood the charges he is facing, the plea options, the purpose of an oath, the roles of participants in a trial, the possible verdicts and their consequences and he demonstrated an understanding of the court proceedings.
Dr. Jaiswal referenced Dr. Mishra’s opinion at page 14 of the Hospital Assessment Report: “However, his ability to communicate regarding his legal matters with Counsel is difficult to assess accurately in an office setting with limited discussion regarding the legal process. This may prove to be a challenge as regards receiving information, understanding it accurately and instructing counsel.”
At page 8 of his Assessment Report, Dr. Mishra opined on what he sees going forward if Mr. S. (G.) is found unfit to stand trial and concludes:
If Your Honour determines that S. (G.) is Unfit to Stand Trial, he is unlikely to benefit from further treatment to restore fitness to stand trial, in the short-term. As he suffers from aphasia resulting from a stroke, speech and language therapy is often helpful over time to restore language functions. However, it has been almost 1-1/2 years since S. (G.) suffered the stroke, and there seems to have been very little if any improvement in his ability to speak. Thus, any improvement in his speech function is likely to be slow and protracted over time, even with treatment. However, this does not exclude recovery to the extent where his ability to communicate could be restored at least partially with treatment. An opinion from a Speech and Language Therapist could shed better light on this.
- With the aid of an interpreter in an interview on September 5, 2025, addressing S. (G.)’s understanding of his charges, Dr. Jaiswal made the following observations at page 15 of the Hospital’s Assessment Report:
In response to whether [the accusation] entailed a sexual assault accusation, S. (G.) gestured with his hands to indicate that he did not know. When asked if the accusation pertained to a child, he pointed to the image that represented the response yes. Additionally, some of his gestures suggested that he was aware that the accusation entailed some contact with a child (while seated, he placed his hand horizontally at a height about his head and gestured no, and subsequently placed his hand at a height below his head and then motioned his hand to indicate a touching or tapping form on contact). During a subsequent attempt to clarify if the accusation entailed touching a child, he shook his hands to gesture he didn’t know and pointed to the image that represented the response yes when asked if he could not recall details.
- Regarding questions about his defence lawyer and his role in a trial proceeding, Dr. Jaiswal reported the following at pages 15 and 16:
When asked if he had a lawyer, S. (G.) pointed to the image that represented the response yes. He pointed to the image representing the response no when asked if that lawyer was against him. Subsequently, when asked if that lawyer would help him, he pointed to the image representing the response yes. Similarly, when asked if that lawyer would defend him against the charges, he pointed to the image representing the response yes.
- As set out in the Hospital’s Assessment Report at pages 17 and 18, the following was observed at a Mental Status Assessment of S. (G.) on September 5, 2025:
His speech production was limited and presented as predominantly nonverbal. However, he could annunciate the words tea and water in Punjabi. He did demonstrate the ability to understand simple statements such as requests to close his eyes and wave his hands. Additionally, his non-verbal responses, including when presented with images, were not slowed. His affect was appropriately reactive with intermittent moments of being teary eyed when asked questions pertaining to the Court matters. His mood was not depressed. There were no violent, self-harm, suicidal, or homicidal thoughts, and no perceptual disturbances or delusions.
- Dr. Jaiswal further opined at page 19 of his Assessment Report on S. (G.)’s capacity to respond to more complicated questions:
However, he was unable to reliably communicate his decisions when presented with slightly more complex and ambiguous choices. Though a limited education level may have contributed to challenges in this regard, it is also likely that these difficulties flowed from the experience of expressive aphasia.
The Hospital’s Assessment Report at page 14 states: “At the time, from a psychiatric perspective, it was opined that S. (G.) presented as possibly fit to stand trial... on the balance of probabilities... However, this could be impacted on by his ability to communicate with counsel due to his stroke.”
The transcript of the OCJ fitness trial held on June 10, 2025, on pages 18 and 19, indicates that S. (G.) attended the Court on three previous occasions in June, July and September 2025 and presented as non-verbal. The Court found S. (G.) unfit to stand trial “primarily based on the concern about his inability to communicate with counsel in a meaningful way.”
Oral Evidence of Dr. Deep Jaiswal
By way of update, Dr. Jaiswal testified that, since the date of the Hospital’s Assessment Report S. (G.) underwent, psychological testing on November 4, 2025, with Dr. Percy Wright and Dr. Emily Pynoo. The testing was conducted in three areas of assessment.
The Test of Memory Malingering was used to assess effort and response credibility during memory assessment. Overall, the results did not show any evidence to suggest that S. (G.) was exaggerating his level of impairment.
The Comprehensive Test of Non-Verbal Intelligence, Second Edition, is a non-verbal measure of general intelligence designed to assess reasoning and problem-solving with minimal language demands, making it useful when verbal ability, language proficiency, hearing or speech is limited. S. (G.)’s overall score on this test was in the extremely low range. Dr. Jaiswal testified however that those results should be interpreted with extreme caution because lack of effort may have been a confounding factor.
The Socio-Sexual Knowledge and Attitudes Assessment Revised is a structured assessment of sexual knowledge, attitudes, and beliefs, most commonly used with individuals with intellectual disability or developmental disabilities. When this test was administered, S. (G.) declined to respond to some questions, appeared uncomfortable with the nature of some of the questions, and occasionally avoided eye contact with the female assessor appearing more comfortable with the male assessor. Dr. Jaiswal pointed out that some questions were not directly translatable to Punjabi. He observed that despite some limitations in the testing S. (G.) could, while viewing images, identify male and female anatomical parts, identify a range of sexual acts and when they were inappropriate, he could distinguish between good and bad touch.
S. (G.) was also asked questions similar to the Taylor test questions articulated by the Ontario Court of Appeal in R. v. Taylor (1992) 1992 CanLII 7412 (ON CA), 11 OR (3d) 323 (CA). Dr. Jaiswal testified that S. (G.) gave appropriate responses and demonstrated a basic understanding and some flexibility in understanding nuance in the questions.
In sum Dr. Jaiswal testified that S. (G.) was unlikely to be malingering with respect to cognitive impairment. He could discern or display nuanced knowledge around appropriate and inappropriate behaviour. On the Taylor test questions he performed consistently with previous assessments conducted by him and other clinicians.
Dr. Jaiswal adopted his opinion as stated at page 15 of the Hospital’s Assessment Report where he opines: "Any improvement in his speech function is likely to be slow and protracted over time, even with treatment. However, this does not exclude recovery to the extent where his ability to communicate could be restored at least partially with treatment. An opinion from a Speech and Language Therapist could shed better light on this.”
In answer to an inquiry about S. (G.)’s responses to complex or ambiguous questions during the assessment, as referred to on page 19 of his Assessment Report, Dr. Jaiswal provided an explanation. He testified that during the assessment he presented S. (G.) with images of court settings and when there were multiple images S. (G.) had difficulty knowing whom the accused was and who was testifying. Dr. Jaiswal further explained that due to S. (G.)’s speech limitations it was difficult for him to identify S. (G.)’s understanding of the images and to know how additional information could be provided so he could give appropriate responses.
Dr. Jaiswal added that the clinical team wants to observe S. (G.)’s response to Speech and Language Therapy to determine his prognosis. He explained that the main focus of treatment to restore fitness would be on speech therapy combined with fitness education. Dr. Jaiswal stated that to date he is not apprised of the availability of a speech therapy facility and indicated he was uncertain whether this would be available.
The Board raised a question about the possibility of S. (G.) deciding to testify in court and about the barriers the Crown and defence lawyers would have in formulating questions. The concern was whether S. (G.) would have the ability to respond appropriately when questions might be nuanced, complex or ambiguous, as they can be in the legal setting of a court.
Dr. Jaiswal agreed this could pose a barrier. He referred to the psychological assessment results that show the difficulty S. (G.) exhibited in responding to complex and ambiguous questions and his difficulty in identifying S. (G.)’s understanding of the questions in order to improve on the questions.
In answer to a question about why a speech therapist has not been retained up to the present, Dr. Jaiswal stated that he did not know how to approach obtaining that assessment. He added that he was also awaiting the results of the psychological assessments to get a fuller picture of Mr. S. (G.)’s condition, and he further stated that speech therapy would be the next step. On a question about funding for a speech therapist and the uncertainty of retaining one, Dr. Jaiswal indicated that whoever at CAMH is responsible for investigating the availability of a speech therapist will look into funding and whether the Hospital has funding available.
On questioning by the Board on a diagnostic point, Dr. Jaiswal confirmed that S. (G.)’s incapacity does not emerge from either a major mental illness or, according to the psychological testing, from cognitive impairment. He agreed that speech therapy would be useful in developing tools and questions that could assist in improving his speech and providing a better understanding for assessors of the effect of his aphasia on his speech.
Dr. Jaiswal was also asked by the Board about S. (G.)’s uncomfortable posture when responding to questions during the Socio-Sexual Knowledge and Attitudes Assessment testing when he exhibited signs of discomfort with the questions especially from the female assessor. The Board’s question was, in interpreting S. (G.)’s reactions, whether thought was given to possible cultural factors that might have underlay his reactions. Dr. Jaiswal indicated that the assessors did acknowledge the possible role of cultural factors.
The Parties’ Position
The parties were unanimous in the view based on the evidence presented that S. (G.) remains unfit to stand trial.
There was a focus in submissions on the condition regarding S. (G.)’s contact with children. The condition of particular concern as set out in the Hospital’s Assessment Report at page 1 states: “Refrain from having any contact, direct or indirect, with minors unless in the company of staff or an approved person”.
S. (G.)’s counsel requested that S. (G.) be permitted to live in the community in the family home. S. (G.) has been residing with his two adult sons and their wives and other family members who live in the same house. Each of the sons has small children – one son has children ages two-and-a-half months old and two years old, and the other son has two daughters, one seven-years-old and the other two-and-a half years old.
The Crown accepted the Hospital’s position agreeing that a detention order is the appropriate disposition provided there is an amendment to the contact condition, that it be re-worded as, “S. (G.) not be in the presence of a child under 16 years of age except in the presence or company of staff or the approved person.”.
The Board’s Conclusions
Overview
Based on the evidence before us the Board accepts the joint position that S. (G.) remains unfit to stand trial pursuant to s. 672.48 of the Criminal Code and as defined by s. 2.
The Board finds that the contact condition should provide that S. (G.) not be in the presence of any person under the age of 16 years unless in the direct company of hospital staff or an approved person.
Fitness To Stand Trial
The Law
The Board is required to decide whether at the time of the hearing S. (G.) is fit to stand trial as defined by s. 2 of the Criminal Code.
Section 2 defines unfit to stand trial to mean unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so in view of, in particular, whether the person is unable to: (a) understand the nature or object of the proceedings, (b) understand the possible consequences of the proceedings, or (c) communicate with counsel.
The Supreme of Canada (the Court) in the recent R. v. Bharwani, 2025 SCC 26 decision further elucidated and expanded on the Court of Appeal’s determination on fitness to stand trial and what is required of an accused’s ability to establish their fitness as contemplated by s. 2 of the Criminal Code.
The Ontario Court of Appeal in Bharwani, 2023 ONCA 203 (CA) held that the accused must: (a) have a reality-based understanding of the nature and object of the proceedings; (b) understand the possible consequences of the proceedings; and (c) have the ability to make decisions, though are not required to have the capacity to engage in analytic thinking in that the accused need not be able to act in their own best interests.
The Supreme Court agrees substantially with the fitness to stand trial test articulated in R. v. Taylor, (1992) 1992 CanLII 7412 (ON CA), 59 O.A.C. 43 (CA), and as elucidated by the Court of Appeal in Bharwani, subject to certain elaborations and clarifications. The Court observed that the Court of Appeal allotted most of its analysis to the capacity threshold in terms of what it means to “conduct” a defence while there was relatively little concentration on what “‘a defence’ actually entails.”: [Bharwani, at para. 50]. The Supreme Court focused on what the accused’s right to full answer and defence means.
Any mention of Bharwani hereafter in this decision is a reference to the Supreme Court of Canada decision.
The Court went on to explain that “to determine what capacity threshold Parliament intended, it is helpful to canvass the decisions and actions in a ‘defence’ that an accused must be capable of executing or instructing counsel to execute”: [Bharwani, at para. 55].
The Supreme Court outlined examples of some of the options an accused has available to choose from in conducting a criminal defence. The accused is required to turn their mind to certain decisions they must make such as: whether to enter a plea, electing the mode of trial (whether they chose a jury or judge-alone trial), whether to testify in their own defence and whether to select or discharge counsel or choose to represent themselves.
The Court pointed out however that conducting a defence involves more than decisions on those matters. Conducting a defence encompasses “an accused’s capacity to make full answer and defence and their right to be physically and mentally present at trial, which in turn reflects basic principles of fairness in criminal law”: [Bharwani, at para. 60]. The right to full answer and defence is an assiduously guarded Charter-protected fundamental principle of a fair trial. While both prongs of this right are equally protected, “full answer” takes on special importance when an accused lacks capacity in speech and writing production compounded by a need for translation from another language to English.
The Court highlighted that “the fitness to stand trial test is contextual, as the inquiry focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract”: [Bharwani, at para. 65]. This means there is no one-size-fits-all or standardized approach to determining fitness to stand trial and capacity to conduct a defence. Assessments of capacity to make decisions are required to be made in the context of the particularities of each case.
The Court pointed to a further area of required understanding that is part and parcel of the right to make full answer and defence. An accused must understand disclosure.
The right to full answer and defence includes the right to receive disclosure from the Crown, before trial, of all relevant, non-privileged information in its possession or control. The right to full answer and defence rings hollow if an accused learns of the Crown’s evidence for the first time in the courtroom. To conduct a defence, an accused must therefore understand the concept of disclosure: [Bharwani, at para. 69].
- The Supreme Court concludes that the purpose of the definition of “unfit to stand trial” supports an understanding 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: [Bharwani, at para. 77].
The Board’s Analysis
This case offers a rather novel circumstance. S. (G.) does not present with a major mental illness like schizophrenia or a delusional disorder. He suffers from a mild cerebrovascular neurocognitive disorder (expressive aphasia) that impacts aspects of his cognitive ability. Mr. S. (G.) lacks the ability to speak and write in Punjabi and English and is functionally illiterate in both languages. He relies on a Punjabi interpreter to receive English communications in Punjabi. His education level was restricted to obtaining a grade three or four education in India. As Dr. Jaiswal explains, the speech limitation is a residual sequelae of the stroke he suffered in October 2023.
The Hospital’s Assessment Report at page 19 describes his condition as follows:
According to the DSM V, the core feature of a neurocognitive disorder is acquired cognitive decline in one or more cognitive domains. This includes the domain of language. Individuals with mild neurocognitive disorder have preserved independence, although there may be subtle interference with function or a report that tasks require more effort or take more time than previously. Of note, the distinction between major and mild neurocognitive disorder is arbitrary, and the disorders exist along a continuum. Precise thresholds are difficult to determine. With respect to the vascular nature of etiology, it must be determined that cerebrovascular disease is the dominant pathology that accounts for the cognitive deficits.
Dr. Jaiswal explains in the Report that S. (G.)’s main limitation is with respect to language. While his capacity to understand speech and to receive speech remains intact, his speech production is limited. It is Dr. Jaiswal’s opinion that S. (G.)’s limited education has rendered him functionally illiterate. In considering his fitness to stand trial S. (G.)’s speech limitation has to be viewed in conjunction with the limitations in his ability to write in Punjabi and English and his illiteracy.
Considering the definition of fitness to stand trial at sections 2(a) and (b) of the Criminal Code, the question is whether S. (G.) is able to understand the nature or object of the proceedings and whether he understands the possible consequences of the proceedings.
At pages 19 and 20 of the Hospital’s Assessment Report Dr. Jaiswal concludes the following from the assessments conducted on September 5 and October 1, 2025:
During the assessment of fitness to stand trial, S. (G.) demonstrated an understanding that he was accused of behaviours entailing some form of physical contact with a female minor. In this context, he discerned and, through yes/no or multiple-choice image-based responses, communicated that the accusation did not involve theft and that the alleged victim was not an adult or a male. He also understood that the Judge made decisions pertaining to the outcome of his case. He was aware that individuals at Court may be asked to take an Oath and that it was inappropriate to lie in Court.
S. (G.) was able to make and communicate decisions when presented with simple unambiguous image-based choices. However, he was unable to reliably communicate his decisions when presented with slightly more complex and ambiguous choices. Though a limited education level may have contributed to challenges in this regard, it is also likely that these difficulties flowed from the experience of expressive aphasia.
Dr. Jaiswal observed that the trial is expected to involve communicating complex and nuanced decisions and, for that reason, the expressive aphasia is likely to affect his ability to communicate his decisions to counsel or the court, and affect his ability to meaningfully participate in the proceedings. He concluded that in this context, on balance, S. (G.) is likely unfit to stand trial from a psychiatric perspective.
Looking at the question of complex, nuanced and ambiguous questions and concepts, the Board considered the information garnered from one of the tests where Dr. Jaiswal presented S. (G.) with images of court settings. And when multiple images were shown S. (G.) had difficulty knowing whom the accused was and who was testifying. There is also the possibility that the compounding factor will emerge at trial, that was evidenced in the Socio-Sexual Knowledge and Attitudes Assessment, where some questions and concepts were not directly translatable to Punjabi.
It is a barrier to a positive fitness assessment that Dr. Jaiswal had difficulty identifying what Mr. S. (G.) understood of the images and difficulty knowing how the test could be improved to make it comprehensible to S. (G.) in order to elicit appropriate responses. What is demonstrated here, in the Board’s view, are the limitations of binary yes/no or multiple-choice image-based testing in S. (G.)’s circumstances and the restrictions to its usefulness in testing on subject matter involving complex, ambiguous and nuanced concepts such as those that are intrinsic to the criminal judicial process.
The testing tool employed by Dr. Jaiswal was able to elicit correct responses to some basic questions such as regarding the offences he was charged with, the age and gender of the accused, the basic role of the judge in making decisions, the role of an oath and the importance of telling the truth.
However, S. (G.)’s correct responses to those questions, in the Board’s view, demonstrate a mere rudimentary understanding of only limited aspects of the criminal court process. An acceptable understanding requires “an ability to understand the available options and their consequences, and to select between those options when making decisions”: [Bharwani, at p. 77]. The Supreme Court also observed that, “A defence requires taking affirmative actions and making deliberate decisions. At a minimum, this includes those actions and decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence”: [Bharwani, at p. 56].
Securing S. (G.)’s right to full answer and defence would require devising novel solutions that are not based in theoretical or abstract ideas. Thinking about solutions has to be grounded in the concrete realities of what is required of an accused in court and the criminal process. An accused must have “a reality-based understanding” of the proceedings and the options available to him. This means, as postulated by the Supreme Court, an understanding that, “the fitness to stand trial test is contextual, as the inquiry focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.”
The Board finds that S. (G.) fails to meet the requirements of subsections 2(a) and (b) of the Criminal Code in that it is not apparent from the evidence that S. (G.) understands, beyond a rudimentary level, the nature or object of the proceedings or the possible consequences of the proceedings.
The Board considered subsection 2(c) of the Criminal Code. As the Supreme Court instructs “an accused must have the capacity to intelligibly communicate with the court, as well as counsel, since a defence invariably requires informing both of the decisions one has made”: [Bharwani, at para. 70].
S. (G.) faces an obstacle that most accused do not. There is a clear question here as to whether or not having the capacity to speak or write in Punjabi or English renders S. (G.) incapable of intelligibly communicating with counsel and the court. As Dr. Mishra’s words, cited earlier, point out, “This may prove to be a challenge as regards receiving information, understanding it accurately and instructing counsel.” On the question of capacity the Supreme Court held, “To determine what capacity threshold Parliament intended, it is helpful to canvass the decisions and actions in ‘a defence’ that an accused must be capable of executing or instructing counsel to execute”: [Bharwani, at para. 55].
There are suggestions by Dr. Mishra and Dr. Jaiswal that language and speech therapy might be useful in at least partially restoring S. (G.)’s language. But they cautioned that progress would be slow. And currently there is no information before the Board on the availability of this therapy for S. (G.). At this stage there is tentative evidence by Dr. Jaiswal at page 14 of the Hospital’s Assessment Report, quoting Dr. Mishra’s opinion:
Given adequate time and the use of interpretation, it is possible that he could participate meaningfully in court proceedings. He has a reality-based understanding of the court proceedings. However, his ability to communicate regarding his legal matters with Counsel is difficult to assess accurately in an office setting with limited discussion regarding the legal process. This may prove to be a challenge as regards receiving information, understanding it accurately and instructing counsel.
There is no information before the Board that confirms that speech and language of therapy would be effective in S. (G.)’s particular case or that communication tools exist or could be developed to address S. (G.)’s particular barriers in the near future. Further it is not evident at this point when this therapy will be accessible to S. (G.) if it would be available within the upcoming reporting year.
It is not often the case in trials where there are such fundamental impediments to an accused communicating with counsel and the court. S. (G.) can receive communications from counsel with the assistance of an interpreter. In the absence of any specialized communication tools, he cannot communicate to counsel in speech or writing which is necessary for him to be capable of executing or instructing counsel to execute something in response to his instructions.
There are particular concerns in S. (G.)’s case, when considering the trial process, where his inability to communicate will impact his right to full answer and defence; for example, if he decides to exercise his other Charter-protected right to testify on his own behalf. In this eventuality S. (G.) would have to possess the capacity to communicate with counsel and give instructions to prepare for his testimony on the stand.
As the Supreme Court emphasizes there must consideration of whether an accused has the capacity to intelligibly communicate with both the court and counsel. Applied to the particularities of S. (G.)’s case, for example, regard must be had to whether communication tools can be made comprehensible to and usable not only by S. (G.), but also by the judge and/or jury members, defence counsel and the Crown in order for the participants in the trial to understand S. (G.)’s impediments and how he will participate in the proceeding. S. (G.) must be able to respond intelligibly to his counsel’s and the Crown’s questions and be clearly understood from the witness stand. He would have to have the capacity “to make full answer.” It is apparent that the binary yes/no or multiple-choice image-based questioning method is inadequate to assist with the frequent complexity and nuance involved in questioning in an adversarial criminal proceeding.
Instructing counsel takes place throughout the criminal process including in the courtroom at counsel table when extemporaneous considerations arise in a defendant’s mind, and they need to promptly instruct counsel on a matter. Defendants writing notes to counsel or speaking in dulcet tones to instruct counsel at counsel table occur with regularity throughout trials. From a pragmatic perspective, in this scenario it would be truly a challenge to ensure the protection of S. (G.)’s ability to instruct counsel.
For all the reasons stated the Board concludes that S. (G.) does not meet the requirements of section 2(c) of the Criminal Code.
Based on the Assessment Reports by Dr. Mishra and Dr. Jaiswal and the other evidence filed, the Board concludes under subsections 2(a), (b) and (c) of the Criminal Code, that at the time of the hearing, S. (G.) is unfit to stand trial.
Conclusion
In the result the Board finds S. (G.) is unfit to stand trial and that the necessary and appropriate disposition is detention at the Forensic Service at CAMH with privileges up to living in the community in approved housing.
The Board finds that the contact condition should provide that S. (G.) not be in the presence of any person under the age of 16 years unless in the direct company of hospital staff or an approved person.
Regarding the reporting clause recommended by the Hospital, which requires S. (G.) to report not less than once every four weeks, the Board agrees with Dr. Jaiswal that the treatment team should maintain contact with S. (G.) and his family and attend at his home to ensure his compliance with the disposition conditions and to assess whether his accommodation is suitable from a risk mitigation perspective.
DATED this 22nd day of January, 2026, at the City of Toronto, in the Toronto Region.
The Hon. B. Allen Legal Member
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Office of the Registrar Ontario Review Board