B. (A. R.) (Re), 2026 CanLII 51042

Re: B. (A. R.)

ORB File No: 4536 Hearing held on: Wednesday, April 22, 2026 Place of hearing: Brockville Mental Health Centre Via Zoom Videoconference

Pursuant to: Section 672.81(2.1) of the Criminal Code

Before: Alternate Chairperson: Mr. C. Flanagan Members: Dr. R. Sheppard Dr. L. Lightfoot Ms. A. La Viola Ms. R. Chopra

Parties Appearing: Accused: B. (A. R.) Amicus Curiae: Mr. M. Davies The person in charge of hospital: Representative: Dr. J. Gray Attorney General of Ontario: Counsel: Ms. C. Breault

*Pursuant to section 110(1) of the Youth Criminal Justice Act, no person shall publish the name of the accused, or any other information, if such publication would identify the accused as a person who was dealt with as a young person under the Youth Criminal Justice Act or the former Young Offenders Act.

REASONS FOR DECISION

(Dated May 25, 2026)

OVERVIEW

1B. (A. R.) was found not criminally responsible on account of mental disorder on July 20, 2006, in Youth Court, for the offence of robbery using a firearm, contrary to the Criminal Code. He is currently subject to a disposition of the Ontario Review Board, dated September 17, 2025. The disposition detains him at the Brockville Mental Health Centre – Secure Forensic Unit, with privileges to live in the community of Eastern Ontario in accommodations approved by the person in charge.

2The Board received notice on March 11, 2026, indicating that B. (A. R.) had been readmitted to hospital on March 4, 2026, for a period greater than seven days, requesting that a hearing be held to review the restriction of his liberty.

PRELIMINARY ISSUE

3Mr. Davies, appearing as Amicus Curiae, was concerned that proceeding with the restriction of liberty hearing could prejudice B. (A. R.)’s standing in the Court of Appeal for Ontario (an appeal set to be heard sometime in May 2026), suggesting that if B. (A. R.) did not avail himself of the opportunity to ask the Board to revisit his entire disposition during this hearing, he might later face arguments that his appeal for an absolute discharge was moot. Amicus noted that there was no updated Hospital Report for the hearing. He argued that B. (A. R.) should have a full report both to address the restriction of liberty and to advance an argument for an absolute discharge.

4Despite the concerns raised by Amicus, B. (A. R.) argued that in his view, the Board should proceed with the hearing. B. (A. R.) stated that he did not agree with the administrative reasons for restrictions placed on his liberty, or the lack of an updated Hospital Report, and he asserted that the appellate court would still have an obligation to address his Charter rights issues, in any event. He explicitly confirmed that he wished to proceed with the hearing that day, notwithstanding the upcoming appeal and the absence of an updated written report.

5The Board ruled to proceed with the hearing, the reasons for which will be addressed further in these Reasons.

ISSUES

6The Board was asked to review the readmission period that had triggered the notice provisions under s. 672.56(2) of the Criminal Code. The issue was whether the restriction of liberty was necessary and appropriate initially and throughout its duration, according to s. 672.81(2.1) of the Criminal Code. At the time of the review, B. (A. R.)’s initial readmission on March 4, 2026, was no longer ongoing. He had transitioned to independent living in the community on April 1, 2026.

7At the outset of the hearing, Dr. Gray, as representative for the hospital did not take an initial position, explaining that the restriction of B. (A. R.)’s liberty occurred as a result of arguments between B. (A. R.) and the staff at the community Forensic Intensive Treatment Team (“FITT”) house – where B. (A. R.) had been transitioned to initially – and that B. (A. R.) had lost a newly leased apartment (alternative housing secured as a result of the arguments at the FITT house), due to subsequent arguments with the new landlord.

8Counsel for the Attorney General also deferred her position, noting that the absence of a formal clinical report made it difficult to form an informed position until the oral evidence had been heard in full.

9On the other hand, B. (A. R.) representing himself, assisted by Amicus, maintained a firm opposition to the readmission, arguing that there were no valid clinical grounds for his return to the hospital, characterizing the event as a response to administrative or staffing issues rather than a shift in his mental health status, nor that he represented a significant threat to public safety.

FINDINGS

10At the conclusion of the hearing, the Board found that restricting B. (A. R.)’s liberty beginning on March 4, 2026, was necessary and appropriate initially and throughout its duration. In the circumstances, preventative measures were necessary as the least intrusive option available to manage increasing risk to public safety. As a result, he was readmitted to hospital and shortly afterwards transitioned from the hospital back to an alternate community setting on Bartholomew Street on April 1, 2026.

BACKGROUND

11The Hospital Report from the Brockville Mental Health Centre, dated August 27, 2025, was entered as an exhibit at the hearing. The following background information, including the events surrounding the 2005 index offence, is summarized here as follows.

12B. (A. R.) is now 38 years old. He reportedly had over 50 contacts with police as a youth, including multiple assaults against his father and property damage. Between 1999 and the index offence in 2005, his psychiatric history was marked by many hospital admissions. Beginning with an initial evaluation following a suicide attempt, his clinical course over this period involved severe emotional dysregulation, self-harm, and aggression primarily directed toward his father. Throughout these years, the report indicates depressive symptoms, post-traumatic stress features, borderline cognitive and personality traits, and side effects from early medication trials leading up to the index offence.

13On April 19, 2005, B. (A. R.) entered a variety store and approached the victim and her son. He wore green army fatigues. He pointed a silver handgun at the victim, asking for all her money. The victim refused, and there was a struggle. A witness appeared and called 9-1-1. Police attended and B. (A. R.) was arrested. Police seized the firearm, a 9mm semi-automatic handgun with an empty magazine. B. (A. R.) did not have a licence, registration, or authorization to be in possession of the handgun.

14B. (A. R.)’s current diagnoses are Post Traumatic Stress Disorder (by history), Persistent Depressive Disorder (by history), Cluster B Personality Disorder (antisocial and/or borderline personality disorder), History of Pedophilic Disorder, Remote History of Cannabis Use Disorder, and Alcohol Use Disorder. He is currently capable of consenting to psychiatric treatment, and he is also capable of managing his financial affairs. He receives financial support from the Ontario Disability Support Program.

15B. (A. R.) has been under the jurisdiction of the Board for approximately 21 years. His placement in the various psychiatric hospitals has changed over time between maximum and medium security based on his behavioural risk profile.

16In September 2010, shortly after being discharged from hospital to transitional community housing, B. (A. R.) threatened his community nurse with a knife. Police apprehended him, and he was returned to Ontario Shores Centre for Mental Health, resulting in charges for threatening death and weapons dangerous.

17In 2017, escalating aggression led to B. (A. R.)’s transfer from Ontario Shores to the Waypoint Centre for Mental Health Services, reflecting ongoing behavioural instability requiring a highly secure hospital setting.

18Later in 2017, he was transferred from Waypoint to St. Joseph’s Healthcare in Hamilton. In 2021, while at St. Joseph’s Healthcare, B. (A. R.) was convicted of possessing child pornography and received a 12-month conditional sentence followed by three years of probation.

19B. (A. R.) was transferred to the Brockville Mental Health Centre on March 30, 2023, following a disposition order from the Board. The transfer was prompted by a treatment impasse at St. Joseph’s Healthcare – stemming from his difficulty engaging in clinical care and ongoing interpersonal conflicts and formal complaints involving staff – along with his formal request to be moved to the Brockville hospital setting.

20In 2023, after B. (A. R.)’s annual hearing, the Board ordered an updated sexual behaviours assessment. Dr. Corona was B. (A. R.)’s attending psychiatrist at the time, and due to certain demands made by B. (A. R.), which could not be accommodated, the assessment did not take place.

21In March 2024, B. (A. R.) filed a lawsuit against Dr. Corona. Subsequently, Dr. Gray took over his care. Dr. Gray completed the sexual behaviours assessment, and in his opinion, B. (A. R.) should not be permitted to take on volunteer or employment opportunities with access to underaged females.

EVIDENCE AT THE HEARING

22Dr. Gray testified that B. (A. R.) had been discharged on a leave of absence on December 2, 2025, to a 24-hour supervised residence – the FITT house – located on hospital property. Dr. Gray confirmed that the FITT house is operated by the hospital, and although the treatment team makes placement decisions, the authority to admit or readmit an individual rests with the person in charge of the hospital. While B. (A. R.) was initially an active participant at the FITT house, conflicts developed due to interpersonal friction with staff and co-residents.

23Dr. Gray noted B. (A. R.)’s complaints were based on hygiene and fire safety concerns, specifically regarding messy fridges and lit cigarettes in the gazebo. He stated that although the complaints were not delusional, the extent to which B. (A. R.) complained, often raising his voice, caused significant stress to staff and the other residents.

24As a result of the increasing arguments at the FITT house, around February 2026, B. (A. R.) wanted to leave the FITT house and sought alternative housing. He independently secured a community apartment and signed a lease for March 1, 2026, which the hospital approved. However, the landlord rescinded the offer after a dispute over the move in date, where B. (A. R.) sent emails threatening legal action under the Residential Tenancies Act. Dr. Gray believed that these emails were not threatening in a criminal way, but the landlord was put off, and she refused to rent the apartment to him.

25This culminated in a conference on March 4, 2026, where the treatment team was informed that the FITT house staff were opposed to B. (A. R.) remaining at the residence. The treatment team determined that there were no other viable housing options for B. (A. R.) at that time.

26Dr. Gray testified that the use of a local community shelter was explored as an alternative accommodation. However, the hospital could not approve a shelter placement, as it presented unacceptable safety risks. Dr. Gray indicated that B. (A. R.)’s potential homelessness – stemming from the failed lease and the FITT house staff’s refusal to continue the placement – could lead to stress and subsequent verbal harassment or aggression in the community. As a result, B. (A. R.) was readmitted to the Secure Forensic Unit at the Brockville Mental Health Centre on March 4, 2026.

27Dr. Gray conceded there was no change in B. (A. R.)’s psychiatric status, nor any threat of physical violence for several years. Further, he noted that B. (A. R.) had demonstrated significant independence by securing his own housing and finances.

28Dr. Gray stated that the current risk assessment is based almost entirely on personality pathology, specifically that B. (A. R.)’s level of verbal aggression and harassing behaviour has the capacity of resulting in serious psychological harm to others, rather than physical danger.

29In addition, Dr. Gray clarified that while B. (A. R.)’s complaints may have been legitimate, he agreed that B. (A. R.)’s confrontational communication style created an unsustainable living environment, and that the potential for psychological harm to both co-residents and staff was escalating. Dr. Gray agreed that the interpersonal dynamic at the FITT house could be characterized as a ‘toxic environment’ as a result of B. (A. R.)’s behaviour. This atmosphere was driven by B. (A. R.)’s frequent and vocal opposition to the hygiene and smoking behaviours of the two co-residents who suffered from negative symptoms of schizophrenia.

30Regarding the co-residents, FITT house staff reported that they were feeling stressed by being constantly the target of B. (A. R.)’s complaining and yelling. While Dr. Gray clarified that the situation did not lead to the other co-residents mentally decompensating, he also acknowledged that allowing such a constant stressor to continue could have risen to the level of psychological harm.

31In response to the constant complaints, and the untenable living environment reported by staff at the FITT house, the treatment team instituted a ‘three strikes rule’. Under this administrative measure, after three incidents of verbal harassment or verbal aggression, B. (A. R.) would be readmitted to the hospital. Ultimately, when B. (A. R.)’s independent community housing fell through, the hospital prioritized the psychological safety and mental health of the collective environment at the FITT house over B. (A. R.) remaining at the transitional home.

32Following his readmission to hospital, B. (A. R.) quickly secured another apartment, which was approved by the hospital, and he was discharged from the hospital to an independent community living setting on Bartholomew Street on April 1, 2026. Dr. Gray noted that B. (A. R.) had demonstrated significant independence by securing his own housing and finances.

33Finally, a concern was raised regarding B. (A. R.)’s 2021 conviction related to child pornography, and what controls were in place to monitor this behaviour. Dr. Gray explained that in practical terms, the hospital does not monitor B. (A. R.)’s internet use, as it is extremely difficult to do so effectively in an independent community setting.

34B. (A. R.) testified on his own behalf, explaining that he suffers from post-traumatic stress disorder, cluster B personality traits, and has a hearing impairment and speech impediment. He stated that his tendency to raise his voice is an adaptation to his environment and his impairment, rather than an indication of clinical risk or aggression. He argued that his complaints were a legitimate exercise of his rights and that his readmission was the result of administrative and staffing issues rather than any threat to public safety.

SUBMISSIONS

35Dr. Gray simply submitted that he had already explained the circumstances surrounding the admission during his testimony. He rested his position on the evidence provided earlier in the hearing regarding the decision to bring B. (A. R.) back into the hospital due to the breakdown of his housing situation at the FITT house.

36Counsel for the Attorney General submitted that the hospital’s actions were appropriate and represented the least restrictive option available at the time. She characterized B. (A. R.)’s stay at the FITT house as unsuccessful due to the toxic environment he created through his aggressiveness directed toward staff and co-residents. She argued that because the Board had previously determined his transition should be slow and structured, releasing him into the community without an approved housing plan would have posed a significant risk to public safety.

37In his final submission, B. (A. R.) argued that the system’s jurisdiction should only apply when an actual criminal offence is imminent or has been committed. He maintained that there were absolutely no grounds for a finding of significant threat. He asserted that his readmission was based on non-clinical reasons and administrative bureaucracy rather than a genuine risk to public safety.

38Amicus challenged the public safety basis for the restriction of liberty, arguing that the homelessness scenario was a fantasy because the hospital always had the option to keep him at the FITT house. He emphasized that there was no evidence of physical or verbal threats to staff, only hearsay regarding stress levels. He argued that stress does not equate to serious psychological harm as required by the Criminal Code. He concluded that since B. (A. R.) did not constitute a physical threat, the restriction was unnecessary, and the disposition should be revisited to consider whether B. (A. R.) remains a significant threat at all.

ANALYSIS AND CONCLUSION

(a) Preliminary Issue

39At the outset of the hearing, Amicus submitted that the Board should not proceed because the disposition might prejudice an appeal currently before the Court of Appeal for Ontario. The Board does not accept that submission. In R. v. Kahsai, 2023 SCC 20¹, the Supreme Court of Canada confirmed that amicus is appointed to assist the court and does not have authority to control the conduct of the proceeding or to override the expressed wishes of a capable accused. The accused retains the right to decide how the matter should proceed, and amicus cannot act in a manner that contradicts those instructions.

40Further, the Court of Appeal in Kazi (Re), 2025 ONCA 375², reaffirmed that the Board’s statutory mandate continues notwithstanding parallel appellate proceedings, and that only a formal stay issued by the Court of Appeal can interrupt the Board’s jurisdiction. No such stay has been granted, and the concern raised by Amicus about potential prejudice to the pending appeal is speculative and does not displace B. (A. R.)’s stated wish to proceed. In these circumstances, the Board was required to discharge its statutory obligations and continue with the hearing.

(b) Significant Increases in Restrictions on Liberty

41The authority to increase the restrictions on the liberty interests of a person found not criminally responsible is delegated to the person in charge of the hospital, pursuant to s. 672.56(1) of the Criminal Code. This authority is not unrestrained and hospital decisions to increase restrictions on the liberty interests of detained persons under the Board’s authority are subject to review. The Ontario Court of Appeal outlined in Campbell (Re), 2018 ONCA 140³, that hospitals must make certain to stay within “… an envelope set with the major preoccupation of liberty in mind and the utmost liberty compatible” given all the circumstances. When hospitals decide to restrict liberty interests, the Board must review that decision and determine whether it was necessary and appropriate.

42To achieve these ends, there are two steps the Board must keep in mind in its approach. First, the assessment of the liberty status before the increase in restrictions, and second, the liberty status after the restrictions were imposed. The test to be applied to significant increases in the restriction of liberty is the same as that required for dispositions, whether the restriction was necessary and appropriate, considering issues of public safety, while protecting individual liberty rights.

43As affirmed in Kazi, these hearings serve as a ‘final liberty safeguard’ to ensure that hospital decisions with serious ramifications for liberty are examined ahead of the annual review.⁴

(c) Application of the Test

44B. (A. R.) is subject to a detention order under his current disposition, which was confirmed by the Board at his last annual review on September 3, 2025. The detention order reflects the operational requirement that B. (A. R.)’s reintegration into the community must occur with ongoing hospital oversight, which include terms requiring the hospital to approve his accommodation when living in the community. A few months later, the hospital approved his transition from hospital to the FITT house, and he was living there from December 2, 2025, to March 4, 2026, when he was readmitted to hospital.

45B. (A. R.)’s existing liberty norm at the time of readmission was his residence and community access via the FITT house. His readmission to the Secure Forensic Unit at the Brockville Mental Health Centre constitutes a significant departure from that liberty status, triggering the notice and review requirement under s. 672.56(2) of the Criminal Code.

46Applying the Campbell framework, considering the necessity and appropriateness of the restrictions placed on B. (A. R.), the Board has evaluated the circumstances surrounding the readmission and the impact his behaviour had on the therapeutic environment and the safety of others.

47It is important to note that while administrative readmissions and rules such as the FITT house ‘three strikes rule’ are permissible and provide the hospital with operational flexibility to manage daily operational decisions, they cannot be used to circumvent the safeguards that any increase in restrictions must be the least restrictive alternative consistent with public safety. The hospital must ensure that the application of administrative rules does not override the overarching requirement of s. 672.54 of the Criminal Code.

48The decision to readmit B. (A. R.) was driven by a housing breakdown resulting from his ongoing and escalating interpersonal friction at the FITT house. While there was no clinical decompensation, or change in B. (A. R.)’s mental status, the placement at the FITT house had become an unsustainable and toxic living environment. B. (A. R.) exhibited a pattern of escalating verbal aggression and complaints directed at staff and co-residents, resulting in an unsustainable living situation. The Board also notes that the resulting stress affected the co-residents, who were particularly vulnerable, suffering from negative symptoms of schizophrenia.

49The Board recognizes that a real risk of harm to members of the public must be serious in nature – going beyond the merely trivial or annoying. In this case, the evidence establishes a pattern of sustained and escalating interpersonal conflict that caused significant distress to vulnerable co-residents. B. (A. R.)’s manner of communication created an untenable living environment that posed an unacceptable risk capable of escalating into more severe threats. The Board finds that this rose to the level of a real risk of psychological harm, particularly to those vulnerable persons at the FITT house.

50In addition, serious psychological harm must be evaluated against B. (A. R.)’s history of volatility in community placement. Specifically, the 2010 incident in which B. (A. R.) threatened a community nurse with a knife when living in transitional housing. This shows the potential for escalation. His verbal altercations and confrontational behaviours can rapidly escalate into physical threats and violence. Public safety remains the paramount consideration of the Board. Particularly, in this case, the protection of public includes the psychological safety of the staff and co-residents living at the FITT house.

51The treatment team’s application of a ‘three strikes rule’ was a permissible and appropriate administrative measure. Rather than operating as a punitive mechanism, it functioned as a structured, preventative intervention designed to manage the escalating conflict and to reduce the risk of serious psychological harm to vulnerable co-residents and preserve the therapeutic environment. This administrative action falls within the hospital’s delegated authority.

52The Board accepts that the measures taken by the hospital were within the permissible framework, imposing restrictions that were necessary in the circumstances. In response to the breakdown of both the FITT house placement and the lack of an alternative housing plan (after the lease fell through), B. (A. R.) was left without any approved housing option. It was at this point that the treatment team implemented readmission to the hospital, until such time as an alternative placement could be approved because otherwise releasing him into the community without an approved plan would have violated the terms of his disposition.

53Given the breakdown of the FITT house placement, the failed lease, and the absence of any immediate, approved alternative housing plan, continued detention at the Secure Forensic Unit was necessary and appropriate. The Board finds that this measure was required to maintain the safety of the public, and manage the risk, until such time that a suitable community placement could be arranged.

54In conclusion, the specific circumstances of this case are consistent with the principles articulated in Campbell. The Board is satisfied that the initiation and duration of the seclusion period under review, was aligned with the legal requirement to prioritize public safety, while undertaking the least intrusive options available. Following B. (A. R.)’s return to hospital, the treatment team worked with him to find, and to approve alternative accommodation within a relatively short period of time. The decision to readmit B. (A. R.) was a necessary and appropriate protective response to the breakdown of his approved accommodation and the development of an unmanageable living environment, rather than a punitive measure.

55While respecting the safeguarding of liberty interests and the requirement that restrictions on an individual’s liberty norm reflect the least intrusive means possible, the Board is satisfied that maintaining public safety necessitated the temporary restriction on B. (A. R.)’s liberty interests. Furthermore, the swift transition from hospital to an independent community setting on Bartholomew Street on April 1, 2026, demonstrates that the hospital’s action remained within the permissible operational envelope, striking the proper balance between individual liberty and the protection of the public.

Footnotes

1. 1Kashai at paras. 4, 6-7, 8-10. (Note: All references cited to)
2. 2Kazi (Re) at paras. 3-5, 7.
3. 3Campbell at paras. 59-60, 64
4. 4Kazi at para. 24, citing Heinekamp (Re), 2024 ONCA 183, at para. 25, citing Campbell, 2018 ONCA 140, at para. 64.