Re: Malcolm Burke
ORB File No: 7310
Hearing held on: Thursday, March 26, 2026
Place of hearing: Centre for Addiction and Mental Health Via Zoom Videoconference
Pursuant to: Section 672.81(2.1) of the Criminal Code
Before: Alternate Chairperson: Mr. J. Goldenberg Members: Dr. P. Prendergast Dr. G. Nexhipi Ms. A. Israel Mr. T. Wall
Parties Appearing: Accused: Malcolm Burke Counsel: Mr. D. Medd
The person in charge of hospital: Counsel: Mr. J. McIntyre
Attorney General of Ontario: Counsel: Mr. D. Brandes
REASONS FOR DECISION
(Dated May 21, 2026)
Mr. Burke is presently subject to a Disposition of the Ontario Review Board (the “ORB”) dated November 7, 2025. The Disposition directed Mr. Burke to be detained at the Centre for Addiction and Mental Health (“CAMH”) and with privileges of living in the community in approved accommodation. The panel understands that Mr. Burke has been living in the community for approximately the last four years.
The panel further understands that Mr. Burke had been returned to hospital on three or four occasions since his initial transfer to the community.
By letter dated February 12, 2026, the manager of the Office of the Person in Charge (“OPIC”) wrote to the ORB and advised that “On February 4, 2026, Mr. Burke was admitted on an inpatient basis. Mr. Burke is currently detained on the FGUC at this time.”
As a result of that notice, the ORB convened a hearing on Thursday, March 26, 2026, and conducted a Restriction of Liberty hearing. This hearing was conducted virtually.
Position of the Parties
At the outset of the hearing, the parties were canvassed as to the position they were taking at this hearing.
Mr. McIntyre appeared for CAMH. He advised of the hospital position that the return to hospital was warranted and that Mr. Burke’s ongoing stay in hospital represents the least onerous and least restrictive decision available to the hospital. The panel notes that Mr. Burke continues to be an inpatient at the General Forensic Unit at CAMH.
Mr. Brandes appeared for the Attorney General. Mr. Brandes supports the hospital’s position, namely that the return to hospital was warranted and that Mr. Burke’s ongoing stay in hospital is the least onerous and least restrictive decision available to the hospital having regard to public safety.
Mr. Medd appeared for Mr. Burke. It is Mr. Medd’s position, on behalf of his client, that the return to hospital was not warranted and what flows from that position is that Mr. Burke’s ongoing stay in hospital is not the least onerous and least restrictive position available to the hospital.
Evidence at Hearing
The ORB admitted into evidence the hospital letter of February 12, 2026, the ORB response letter on February 12, 2026, the Restriction of Liberty Report dated March 10, 2026, and as well, the Hospital Report from Mr. Burke’s last annual hearing dated October 9, 2025.
In addition to the documentary evidence, the ORB heard from Dr. Igoumenou. Dr. Igoumenou has been following Mr. Burke since approximately December 2024. She accepts the contents of the Hospital Report and the contents of the Hospital Report from Mr. Burke’s last annual hearing.
The doctor was asked if there were any updates. The doctor noted that there were updates. The doctor noted that as with most inpatients, DASA scores are conducted on a daily basis. The panel understands that DASA is an acronym for Dynamic Appraisal of Situational Aggression. This is a measurement of a patient’s potential risk. There are only three possible scores: 0, 1 or 2. Dr. Igoumenou noted that on February 27, Mr. Burke’s score was 1. On March 8, his score was also 1. On March 9, his score was 2 and yesterday, March 25, his score was again 2.
Any positive score is of concern to the clinical team. Dr. Igoumenou put it that the expectation is that patients should score 0 and any positive score is of great concern to the clinical team.
The doctor acknowledged that the decision to return Mr. Burke to hospital was made either on February 4 or February 3. The actual readmission took place on February 4. Dr. Igoumenou noted that Mr. Burke has been living on his own in the community for a considerable period of time. His residence is completely independent in that there is no supervision whatsoever at his residence.
The decision to return Mr. Burke to hospital came as a culmination to Mr. Burke becoming much less reliable in terms of attending to meet with the doctor or the forensic case manager and as well much less reliable in attending to hospital to receive his injectable medication. Mr. Burke’s difficulty with attending for meetings increased significantly starting from about October 2025. Dr. Igoumenou noted that traditionally Mr. Burke was not diligent in attending all of his meetings, but his indifference increased dramatically starting in October 2025. Mr. Burke did attend a meeting on November 25 and appeared frustrated and appeared to be concerned that “people were talking behind my back”. At a meeting he did attend on December 23, 2025, Mr. Burke was significantly more guarded and made it clear that he did not trust the clinical team.
Mr. Burke would frequently cancel appointments with the doctor or the clinical team and frequently would reschedule such appointments. Mr. Burke had a scheduled meeting on January 20 on which he was to meet with the doctor and also receive his injectable medication. That got changed at Mr. Burke’s request to January 27. On January 27, he cancelled his appointment and again asked that it be rescheduled. Dr. Igoumenou noted that in fact he did show up three days later in order to receive his injectable medication. We note from the ROL Report the following:
“Several dynamic risk factors were also present during this period, including symptoms of illness, ongoing use of cannabis, and, until November 14, 2025, positive UDS for cocaine, stress around finances/getting a job, stress around having access to his son, isolation, and suspiciousness about people in his support network.”
Mr. Burke was admitted to CAMH emergency department under a Form 49 on February 4, 2026. Subsequently on February 4 he was transferred to a General Forensic Unit. On that occasion Mr. Burke expressed surprise about being returned to hospital. The Hospital Report indicates he was “dismissive of any concerns regarding his cannabis use and his cocaine positive UDSs.” Dr. Igoumenou noted in her evidence that Mr. Burke claims that somehow the positive cocaine results were inaccurate. He states that he never used cocaine and “it’s because of my girlfriend.” Mr. Burke also confirmed that he uses “the highest potency cannabis he could get.”
Dr. Igoumenou acknowledged that Mr. Burke’s housing is still available to him and that there is no risk of Mr. Burke losing his housing.
In response to a question from hospital counsel, Dr. Igoumenou stated her opinion that Mr. Burke is not yet ready to be returned to the community. The clinical team remains concerned about the deterioration of Mr. Burke’s mental status.
Dr. Igoumenou noted that at Mr. Burke’s own request he was started with olanzapine. Mr. Burke remains agreeable to receiving injectable medication and the olanzapine. The hospital is also sensitive to the need for Mr. Burke to be involved in culturally appropriate programs and/or activities.
Dr. Igoumenou responded that, were Mr. Burke to be discharged today, he would immediately resume his cannabis use. Apparently on a previous occasion after being returned to the community, Mr. Burke started using cannabis within one week.
Dr. Igoumenou described Mr. Burke’s mental status as “fragile.”
Mr. Medd suggested to the doctor that there is a long history of Mr. Burke missing and rescheduling appointments. Dr. Igoumenou acknowledged that but noted starting in approximately October of 2025, there were many more occasions when Mr. Burke requested to reschedule his appointments.
Again, in response to a question from Mr. Medd, Dr. Igoumenou acknowledged that on at least four occasions Mr. Burke has asked the doctor to re-examine his capacity to make treatment decisions.
Dr. Igoumenou acknowledged that in hospital Mr. Burke frequently asks that he provide samples with a view of showing a reduction in his level of cannabis.
In response to a question from a panel member, Dr. Igoumenou stated her opinion that Mr. Burke is incapable of making treatment decisions. She advised that the Substitute Decision Maker is a cousin of Mr. Burke.
Finally, in response to a question from a panel member, Dr. Igoumenou stated her opinion, and the opinion of the clinical team is that Mr. Burke is not yet ready to be returned to the community. She noted that the clinical team had applied for Level 3 passes for Mr. Burke in early February, but the request was denied by OPIC because of the positive tests for the presence of cannabis. She indicated, however, the hope that Mr. Burke could attain Level 3 passes as soon as possible, start building up some structure in the community and that he might well be ready to be returned to the community at some point over the next three or four weeks.
No other evidence was heard at this hearing.
Submissions
Mr. McIntyre asked the panel to accept the doctor’s evidence. He asked the panel to accept that there was an escalation of Mr. Burke’s conduct regarding frequently rescheduling meetings with the doctor. Mr. McIntyre stressed the importance of the positive DASA results and noted the doctor’s evidence that hopefully Mr. Burke will be able to return to the community in the next three or four weeks.
Mr. Brandes, on behalf of the Crown, joined in Mr. McIntyre’s submissions. Mr. Brandes stressed that yesterday, March 25, Mr. Burke’s DASA score was 2. Mr. Brandes submits we should accept the evidence that Mr. Burke is not yet ready to return to the community.
Mr. Medd submitted that the return to hospital simply was not warranted and as well, Mr. Burke’s ongoing stay in hospital is not the least onerous and least restrictive decision. Mr. Medd suggested that Mr. Burke had gained some insight into the dangers of the use of cocaine and that despite the DASA scores, Mr. Burke has not acted out in a physical manner since his return to hospital.
Findings of the ORB
The ORB accepts the evidence of Dr. Igoumenou, and the evidence contained in the Hospital Report. We accept that the return to hospital was absolutely warranted. Mr. Burke’s pattern of rescheduling appointments frequently had increased to the point where a return to hospital was absolutely warranted. As indicated, we accept that evidence. The panel notes the evidence of the expectation that a patient should not test positive on the DASA test. We are satisfied that Mr. Burke’s ongoing stay in hospital is in fact the least onerous and least restrictive decision available to the hospital. The doctor is sensitive to Mr. Burke’s cultural background and indicated that the clinical team will follow-up with a need to assist Mr. Burke in this regard.
In the result, we find the return to hospital was warranted and his ongoing stay in hospital is the least onerous and least restrictive decision available to the hospital.
DATED this 21st day of May, 2026, at the City of Toronto, in the Toronto Region.
Mr. J. Goldenberg Alternate Chairperson
__________________ Office of the Registrar Ontario Review Board