Re Kenneth White, 2026 CanLII 53885

Re: Kenneth White

ORB File No: 8819

Hearing held on: Tuesday, May 12, 2026

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

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

Before:

Alternate Chairperson: Mr. J. Weinstein Members: Dr. P.N. Wright Dr. R. Kunjukrishnan Mr. E. Siebenmorgen (by video conference) Ms. Betsy Little

Parties Appearing:

Accused: Kenneth White (by video conference) Counsel: Mr. S.F. Gehl

The person in charge of hospital: Counsel: Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Ms. K.A. Dalrymple

REASONS FOR DISPOSITION

(Dated June 3, 2026)

Introduction:

1. On June 26, 2025, Mr. Kenneth White was found unfit to stand trial, on charges of dangerous driving causing bodily harm and fail to stop at an accident resulting in bodily harm, both contrary to the Criminal Code of Canada (“Criminal Code”).

2. The Court did not make a disposition and ordered that Mr. White appear before the Ontario Review Board (the “Board”) for an initial Disposition, pursuant to s. 672.47(1) of the Criminal Code.

3. On May 12, 2026, the Board convened a hearing at the Southwest Centre for Forensic Mental Health Care, St. Thomas (“Southwest”) to make an initial Disposition.

4. Mr. White appeared by video conference and was represented by his counsel, Mr. S. Gehl.

5. An Out of Custody Assessment Report, dated November 5, 2025 (“Assessment Report”), was entered as Exhibit 1.

6. In accordance with s. 672.48(1) of the Criminal Code, the Board must decide whether Mr. White is unfit to stand trial on the day of the hearing, within the meaning of s. 2 of the Criminal Code. Specifically, is Mr. White unable, on account of mental disorder, to understand the nature of and the possible consequences of the proceedings and to meaningfully communicate with counsel? If Mr. White is found fit, he must be sent back to court. If he is found unfit, the Board must make a Disposition that is necessary and appropriate, considering the criteria set forth in s. 672.54 of the Criminal Code.

7. For the reasons set out below and based on the evidence before us, the Board has found that Mr. White is unfit to stand trial. The necessary and appropriate Disposition is a Conditional Discharge, requiring him to reside at a long-term care (“LTC”) facility in Southwestern Ontario, in addition to the other terms set out in our formal Disposition.

Current Psychiatric Diagnosis:

8. Major Neurocognitive Disorder

Outstanding Charges

9. Full details of the Outstanding Charges are set out in the Hospital Report. The following is a summary:

“Kenneth White faces two criminal charges stemming from an incident on August 19, 2024, in Wallaceburg, Ontario:

1. Dangerous Operation Causing Bodily Harm (Section 320.13(2) of the Criminal Code)

Kenneth White operated a motor vehicle (a grey Dodge Ram pick-up truck) in a manner dangerous to the public, resulting in bodily harm to a pedestrian, The incident occurred in a construction zone where the victim was struck in the head by the passenger side mirror of White's vehicle.

2. Fail to Stop at Accident Resulting in Bodily Harm (Section 320.16(2) of the Criminal Code)

Details: After the collision, Kenneth White failed to stop, provide his name and address, or offer assistance to the injured party, as required by law. He assessed the damage to his vehicle and then drove away from the scene.”

Criminal Offence History

10. The panel lacked a full criminal offence history and counsel for the Attorney General agreed to provide one to the Board before the next hearing, to help the next panel make a decision whether to recommend a stay of the outstanding charges. Counsel did advise that the only record of which she was aware was some fines for provincial offences.

Psychiatric History

11. Mr. White’s psychiatric history is set out in detail in the Assessment Report. His history can be summarized as follows:

a) Mr. White had no documented psychiatric history in his medical records. However, according to his daughter, he had a longstanding history of anxiety and panic symptoms, as well as general paranoia, since the mid-1980s, following a motor vehicle accident involving a motorcyclist. He experienced a transient depressive episode related to financial stress and alcohol use, during which he expressed suicidal ideation, but did not seek professional help. Instead, he attended Alcoholics Anonymous and relied on family support for his recovery.

b) Over the past few years, Mr. White developed progressive memory decline, which worsened significantly after a stroke in 2023 and further deteriorated following the Outstanding Charges, in August 2024.

c) He was subsequently diagnosed with dementia (major neurocognitive disorder) and admitted to long-term care. There is also a distant history of alcohol use disorder, which he reportedly overcame in 1996. His psychiatric history is further complicated by cognitive impairment, requiring ongoing supervision and support.

Background

12. Mr. White’s background is summarized in the Assessment Report and Dr. Komer’s Report for his fitness hearing at court, and may be further summarized as follows:

a) Mr. White is 72 years old, divorced and a member of the Walpole Island First Nations. He currently resides at the Banwell Gardens Care Centre in Windsor, an LTC facility, on a locked floor.

b) Mr. White attended residential schools during childhood, completed most of high school, left to help his mother with her mental health issues, and later attended a welding program at Fanshawe College. He worked as a welder, roofer, painter and factory labourer. He last worked in 2003 and stopped because of a leg injury.

c) Mr. White has multiple chronic conditions, significant functional impairment requiring long-term care, and a distant history of alcohol use disorder.

Position of the Parties

13. Counsel for the hospital, for the Attorney General and for Mr. White, all agreed that he is unfit to stand trial and that the necessary and appropriate Disposition is a Conditional Discharge. Counsel for the hospital and for the Attorney General requested that the Conditional Discharge contain a term requiring Mr. White to abstain from non-medical use of alcohol or drugs or any other intoxicant and to submit samples of his urine or breath. Counsel for Mr. White advised that he agreed with all the terms proposed by the hospital for a Conditional Discharge except for the inclusion of the abstention and submit clauses. He maintained that these clauses were neither necessary nor the least onerous and least restrictive.

Evidence at the Hearing

14. The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Ardani. Dr. Ardani authored the Assessment Report and testified as follows:

a) He was the assessing psychiatrist and authored the Assessment Report.

b) He obtained Mr. White’s historical information primarily from Mr. White’s daughter, Ms. King, because Mr. White was unable to provide a reliable history.

c) He diagnosed Mr. White with a major neurocognitive disorder. This disorder significantly impairs his cognitive functioning, which is reflected in his Mini-Mental State Examination. Dr. Ardani administered the Montreal Cognitive Assessment (MoCA), resulting in a score of 15 out of 30. This indicated moderate cognitive impairment, which is consistent with Dr. Komer’s assessment.

d) Mr. White’s cognitive decline began prior to 2023 and worsened following a stroke that year. By the summer of 2024, his daughter observed that Mr. White could no longer live independently.

e) Mr. White is unable to retain new information and his ability to recall some past information is deteriorating. His diagnosis of neurocognitive disorder is permanent and progressive. His cognitive impairment is untreatable, and his medications address only his physical health issues. He has no insight into his condition.

f) Mr. White has resided in a LTC facility since July 2024. He cannot live independently, manage his finances, relocate or make decisions about his care. He ambulates poorly while using a walker.

g) Mr. White’s risk is adequately managed in the LTC facility.

h) The HCR20 assessment indicates that Mr. White is a low risk as long as he remains residing in his current LTC facility, which is supervised 24 hours a day.

i) Mr. White has a remote history of alcohol use disorder, but reportedly he has not consumed alcohol since 1996.

j) Mr. White is unlikely to access alcohol or drugs in his current placement. Random testing is recommended only because of the lack of information about the beliefs or behaviours of family members, not because of any evidence of current use.

k) Mr. White’s fitness was evaluated twice, most recently on November 4, 2025. Given the nature of Mr. White’s neurocognitive disorder, no improvement should be expected, and further decline is anticipated.

l) Mr. White could not meet any of the functional requirements of fitness.

i. He was unable to recall the incident that gave rise to the charges and provided inconsistent or fabricated information. In his second assessment, Mr. White denied any legal involvement altogether.

ii. He has only a vague awareness of the role of the judge and cannot explain the roles of defence counsel or Crown counsel nor distinguish between them.

iii. He does not have a reality-based understanding of the purpose of the proceedings.

iv. He could not identify plea options without prompting and, even when provided examples, he could not apply the information to his own case. Mr. White could not understand the consequences of a guilty finding.

v. He does not understand the meaning of taking an oath or the importance of telling the truth.

vi. Mr. White cannot rationally communicate or instruct counsel. Dr. Ardani had difficulty communicating with Mr. White, even with his daughter present.

vii. Mr. White cannot retain information long enough to comprehend it, use it intelligently or communicate it meaningfully.

viii. He cannot meaningfully participate in any aspect of the legal process, because of profound deficits in memory, comprehension, reasoning and communication.

m) Given the progressive and irreversible nature of Mr. White’s neurocognitive disorder Mr. White’s unfitness is likely permanent.

15. In response to questions from counsel for Mr. White, Dr. Ardani testified:

a) It is unlikely that Mr. White would be able to appear as a witness or present any form of defence.

b) Mr. White’s profound cognitive impairment prevents him from retaining information, understanding legal concepts or applying information to his own circumstances.

c) Collecting a urine sample would be difficult because Mr. White does not understand what is being asked of him and is often unwilling, or unable, to cooperate. Although obtaining urine samples is not harmful, it is intrusive and challenging for someone with Mr. White’s level of cognitive impairment.

d) Mr. White does have an Indigenous background; however, his permanent unfitness and severe cognitive decline limit the usefulness of additional cultural or rehabilitative assessments, such as a Gladue Report, or of a cognitive assessment of risk.

16. In response to questions from the panel, Dr. Ardani testified:

a) There is no realistic possibility of Mr. White transitioning out of a locked LTC facility.

b) Given Mr. White’s cognitive deficits, he is not a candidate for a less secure placement. The recommendation for random testing was based not on evidence of substance use, but on a lack of information about the beliefs or behaviours of certain family members. He acknowledged the same lack of information could justify not recommending testing and deferred to the Board’s discretion.

c) Mr. White has expressed no desire to leave his current placement. His daughter, who is his primary support, is satisfied with his current placement.

d) In view of the opinion that Mr. White does not represent a significant threat to the safety of the public, it is Dr. Ardani’s intention, following the issuance of the Board’s initial Disposition, to request an early hearing with a recommendation for a stay of the criminal proceedings.

17. No other evidence was called.

Analysis and Conclusions

Fitness to Stand Trial

18. The first issue for the Board to decide is whether Mr. White remains unfit to stand trial.

Applicable Law

19. The Supreme Court of Canada addressed the fitness test most recently in R v Bharwani, 2025 SCC 26 (“Bharwani”). In this decision, the Supreme Court emphasized the following with respect to the fitness test:

a) Fitness to stand trial does not require an accused to make decisions in his or her best interests. Instead, “it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder.”¹

b) The accused is fit to stand trial if (s)he can: “make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so”² and “intelligibly communicate these decisions to counsel or the court.”³

c) Conducting a defence involves: “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.”⁴

d) The “capacity” required to make these decisions includes: “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.”⁵

e) “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.”⁶

f) The fitness to stand trial test is “contextual,” and the inquiry: “focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.”⁷

g) The same test for fitness to stand trial applies to all accused, whether they are represented by counsel or not.⁸

The Court further stated in Bharwani, paragraph 67:

“The text of the statutory definition of “unfit to stand trial” provides some guidance on the requisite capacity threshold that an accused must possess. The definition notes “in particular” that an accused is unfit if they are unable to (1) understand the nature or object of the proceedings, (2) understand the possible consequences of the proceedings, or (3) communicate with counsel. The use of “or” between these requirements suggests that if the court is satisfied that the accused is unable to meet one of them, they are unfit to stand trial, as they lack the capacity to “conduct” a defence.”

Determination on Fitness

20. Having heard and considered all the evidence and submissions from the parties, the Board agrees with the joint submission that Mr. White is unfit to stand trial. Mr. White is unable to: understand the nature and object of the proceedings; understand the possible consequences of the proceedings; communicate meaningfully with counsel; or meaningfully participate, and instruct counsel, in a criminal proceeding. Mr. White’s mental health symptoms cannot be described as transient.

21. Mr. White’s mental health disorder does compromise his ability to conduct a defence, and it would impair his understanding of reality when making, or communicating, decisions in his defence.

Necessary and Appropriate Disposition

22. The Board finds that the necessary and appropriate Disposition in the circumstances is a Conditional Discharge.

23. The Board agrees with counsel for Mr. White that it would not be appropriate to include an abstain or submit clause in this case. The doctor’s evidence is purely speculative. Mr. White’s alcohol use is historical. It is unlikely that he will have access to alcohol at his LTC home. These clauses are not appropriate in Mr. White’s case and they are onerous. In particular, requiring him to submit urine samples for analysis would require him to engage in a process whose purpose he cannot understand. It is difficult to conceive that this would be anything other than distressing for him.

24. The Board also notes that, according to the Overall Assessment of Risk in the Assessment Report, Mr. White is unfit to stand trial and is likely permanently so, considering the rapid deterioration of his cognitive function. Moreover, his current personal, professional supports, as well as his living situation, cause him to not meet the criteria for significant threat to public safety. Mr. White’s risk factors are generally historical, and they can be managed in the community, if he remains in a 24/7 supervised accommodation. In the absence of a positive finding that Mr. White represents a significant threat, there is no justification for any restrictions upon his liberty beyond those inherent in a Conditional Discharge. An Absolute Discharge is, it must be remembered, not available in cases of unfitness to stand trial.

25. In consideration of all the evidence, submissions of the parties and criteria set forth in s. 672.54, the paramount consideration being the safety of the public, in addition to the mental condition of Mr. White, his reintegration into society and his other needs, the necessary and appropriate Disposition is a Conditional Discharge.

DATED this 3rd day of June 2026, at the City of Toronto, in the Region of Toronto.

Mr. J. Weinstein Alternate Chairperson Office of the Registrar Ontario Review Board

Footnotes

1. 1Bharwani, supra, at para. 6.
2. 2Ibid.
3. 3Ibid at para. 77.
4. 4Ibid at para. 6.
5. 5Ibid.
6. 6Ibid.
7. 7Ibid at para. 65.
8. 8Ibid at para. 82.