Re: Justin Berry-Gowan
ORB File No: 8003
Hearing held on: Tuesday, May 12, 2026
Place of hearing: St. Joseph’s Healthcare Hamilton, West 5th Campus 100 West 5th Street, Hamilton, Ontario
Pursuant to: Sections 672.81(1) and 672.48(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. S. Clapp Members: Dr. J. Kis Dr. G. Nexhipi Ms. N. Nathanson Mr. S. Doherty
Parties Appearing:
Accused: Justin Berry-Gowan Counsel: Mr. A. Confente
The person in charge of hospital: Counsel: Mr. S. O’Brien
Attorney General of Ontario: Counsel: Mr. B. Adsett
REASONS FOR DISPOSITION
(Dated June 4, 2026)
Introduction:
On December 21, 2021, Justin Berry-Gowan was found unfit to stand trial on charges of robbery and assault with a weapon, contrary to the Criminal Code. He is currently subject to a Disposition of the Ontario Review Board (“ORB” or the “Board”) dated May 29, 2025, whereby he is detained at the Forensic Psychiatry Program at St. Joseph’s Healthcare Hamilton, West 5th Campus (“SJHCH” or the “hospital”) with privileges up to and including living in the community of Southern Ontario in approved accommodation. He is also required to refrain from having weapons in his possession, and refrain from contact or communication with the victim of the alleged index offences.
On May 12, 2026, a panel of the Board convened at SJHCH to review Mr. Berry-Gowan’s fitness to stand trial and his Disposition pursuant to sections 672.48(1) and 672.81(1) of the Criminal Code. Mr. Berry-Gowan attended the hearing with his counsel, Mr. Confente.
The Hospital Report dated April 10, 2026 was marked as Exhibit 1. A Social Work Update dated May 11, 2026 was marked as Exhibit 2. In addition to the documentary evidence, Mr. Berry-Gowan’s attending psychiatrist, Dr. Shawn Baldeo, gave evidence.
The issues to be determined at the hearing were whether Mr. Berry-Gowan continues to be unfit to stand trial in accordance with section 2 of the Criminal Code, and if so, what is the necessary and appropriate Disposition taking into account the factors set out in section 672.54 of the Criminal Code.
Positions of the Parties:
At the outset of the hearing, the parties were asked for their initial without prejudice positions. On behalf of the hospital, Mr. O’Brien took the position that Mr. Berry-Gowan remained unfit to stand trial, and that a continuation of the existing Detention Order was necessary and appropriate. Mr. Adsett supported the position of the hospital on behalf of the Attorney General.
Mr. Confente did not take a position as he was unable to obtain instructions.
Findings:
- For the reasons that follow, the panel found that Mr. Berry-Gowan remains unfit to stand trial and that the necessary and appropriate Disposition, which is also the least onerous and least restrictive in the circumstances, is a continuation of the existing Detention Order.
Alleged Index Offences:
- The circumstances of the alleged index offences are set out at pages 3-4 of the Hospital Report, but are summarized concisely in last year’s Reasons for Disposition as follows:
With respect to the July 28, 2020 charge for robbery, it can be summarized as follows: Mr. Berry-Gowan was involved in a robbery of a male who was unknown to him. His participation in the robbery was confirmed by police via video surveillance and association with his co-accused. The victim was stabbed in the arm by Mr. Berry-Gowan’s co-accused with a knife. Mr. Berry-Gowan was later arrested at his residence without issue.
With respect to the January 9, 2021 charge of assault with a weapon, it can be summarized as follows: Mr. Berry-Gowan was involved in a heated verbal exchange with the victim, a co-resident at his Victoria Ave. residence. The exchange escalated to the point where Mr. Berry-Gowan picked up a nearby chair and assaulted the victim across the legs, below the knee. The victim did not sustain any injuries. The police were called to the residence and informed that Mr. Berry-Gowan has recently discontinued his medications and become increasingly aggressive over the past week.
Background:
Mr. Berry-Gowan is currently 32 years old. His personal history is outlined in the Hospital Report in detail, and was summarized by this writer in last year’s Reasons for Disposition (“Reasons”) as follows. Mr. Berry-Gowan was born in Brantford, Ontario and was raised primarily by his father and grandmother. The Children’s Aid Society was involved with the family. Mr. Berry-Gowan completed grade 12 by the age of 21, and was involved in specialized classes with an independent education plan.
Mr. Berry-Gowan’s overall intellectual functioning was described as being well below expectations for his age. He was supported by various community organizations over the years, and lived in group homes. He moved to a residential care facility in May 2016.
Mr. Berry-Gowan has no history of alcohol or substance use.
Mr. Berry-Gowan’s biological mother died in 2024, however he had not had any contact with her since he was an infant. He continues to receive the support of his father.
Criminal History:
- Mr. Berry-Gowan does not have a criminal record; however, he had previous contacts with police due to behavioural outbursts often resulting in violent actions.
Psychiatric History:
Mr. Berry-Gowan’s psychiatric history was summarized by this writer in last year’s Reasons as follows. Prior to the alleged index offences, Mr. Berry-Gowan was diagnosed with Autism Spectrum Disorder and Intellectual Disability. He was supported by a community psychiatrist as part of the Developmental Dual-Diagnosis Program at SJHCH where his medications and behaviours were monitored. Mr. Berry-Gowan also received weekly personal support care.
The Hospital Report provided descriptions of Mr. Berry-Gowan’s behavioral outbursts, which led to property destruction, banging his head against walls, and throwing items with force (chairs and tables), and stated the following (at page 6):
“Previous records indicated that prior to his outbursts he had complained of hearing the voices of children and loud noises. They identified triggers such as: being told no; having to wait; being touched; transitions from one activity to another; being asked to do something he did not want to do; loud environments; being talked to excessively or attempts to reprimand him; and changes to his schedule. The report also indicated Mr. Gowan could engage in physical aggression involving pushing others with force and the intent to have them fall to the ground. The report advised triggers for this behaviour may include: Mr. Gowan attempting to leave an area and feeling blocked; or feeling that someone was invading his personal space. Mr. Gowan disclosed that when angry he has punched holes in the walls of his lodging home and has pulled the fire alarm multiple times to cover his screaming or yelling when upset.”
Mr. Berry-Gowan did not have any psychiatric admissions prior to the alleged index offences, other than a visit to the emergency department in December 2019 as a result of a cut to his finger following an incident at his group home where he punched a window in frustration.
Following his arrest for the alleged index offences, Mr. Berry-Gowan continued to live in the community in his supported residence. Assessments regarding fitness to stand trial were conducted in October and November 2021 on an outpatient basis. Mr. Berry-Gowan’s initial ORB hearing occurred in April 2022 and he received a Conditional Discharge.
Mr. Berry-Gowan was admitted to SJHCH as a voluntary patient in September 2022 after it was determined that his residence was no longer suitable for him. The forensic treatment team wanted to get a better understanding of Mr. Berry-Gowan’s mental status, including his sensory sensitivities, and transition him to a more appropriate residential care facility. The Hospital Report stated that he was discharged back to live in the community at Olga Stella Manor in March 2023. He was readmitted in August 2023 due to behavioural concerns, including arguments with other residents and aggression towards property. Mr. Berry-Gowan was discharged back to Olga Stella Manor on two more occasions in 2023, but it was ultimately decided that he would not return there, and he has remained an inpatient at SJHCH since then. Mr. Berry-Gowan’s Disposition was changed from a Conditional Discharge to a Detention Order in 2024.
During his time under the jurisdiction of the Board, it has been noted that Mr. Berry-Gowan has significant cognitive deficits, slow speech, and poor hygiene. He can become overstimulated, and believes co-patients are calling him names. His insight is limited. He also has sensory issues with water and loud noises, and believes medications are “good” or “bad” based on their colour and shape. It was also noted that Mr. Berry-Gowan communicates best through writing.
The Hospital Report stated that Mr. Berry-Gowan had been intermittently assessed regarding his fitness to stand trial since coming under the jurisdiction of the Board, and was consistently found unfit based on his inability to demonstrate a clear understanding of court proceedings, and his inability to effectively communicate with counsel.
The Hospital Report stated that Mr. Berry-Gowan’s current diagnoses are: Autism Spectrum Disorder (“ASD”); Intellectual Disability (“ID”); Excoriation Disorder; and Specific Phobia (dogs). Mr. Berry-Gowan is incapable of consenting to treatment and managing his finances. The Public Guardian and Trustee is his substitute decision-maker for both treatment and finances.
Evidence at the Hearing:
The Hospital Report stated that Mr. Berry-Gowan’s mental status remained unchanged this reporting year; however, there was an increase in outbursts and aggressive behaviours including property destruction as outlined in the Notable Incidents section of the Hospital Report. Mr. Berry-Gowan was not responsive to typical de-escalation strategies and his behaviours often led to security being called for assistance. There were times this year when he also required seclusion.
A seclusion exception plan was created and implemented for Mr. Berry-Gowan this year. This allows for the brief use of seclusion (i.e. under 4 hours) when other de-escalation techniques fail, without triggering normal seclusion procedures. This allows Mr. Berry-Gowan to attend a private, secluded, and quiet place where he can settle with reduced external stimuli around him. He is also permitted to have specific items to help him relax, including markers and paper.
Mr. Berry-Gowan attended several community outings this year, and it was noted that engagement in recreation and leisure has a positive impact on decreasing his challenging behaviours and supporting his emotional regulation. Mr. Berry-Gowan also had several successful day passes with his father.
The Hospital Report stated that Mr. Berry-Gowan remains unfit to stand trial, and stated the following (at page 44):
“Throughout the reporting period, Mr. Berry-Gowan has sporadically been assessed regarding his comprehension of his forensic patient status, court proceedings, and the potential consequences of legal verdicts. During the most recent assessment, and similar to previous assessments, Mr. Berry-Gowan demonstrated an inability to identify the professionals involved in court proceedings (judge, Crown Attorney, defense counsel). When these roles were explained to him, he appeared unable to grasp the concepts presented, with Mr. Berry-Gowan often expressing uncertainty or disinterest. Efforts to evaluate his understanding through written expression were hindered by his limitations in expressive language. Consequently, Mr. Berry-Gowan has not demonstrated a clear understanding of court proceedings or consequences during this reporting period. Additionally, his ASD and Intellectual Disability impair his ability to communicate effectively with counsel.”
- A significant development very recently occurred in Mr. Berry-Gowan’s case, and this is outlined in the Social Work Update dated May 11, 2026. Mr. Berry-Gowan’s Social Worker, Ms. Karen Durocher, had identified a suitable housing opportunity for Mr. Berry-Gowan earlier this year with a Developmental Services of Ontario (DSO) housing provider called CHOICES. Unfortunately, following a number of meetings and a tour of the facility, funding for the placement was not available. However, Ms. Durocher was recently advised that the funding was now available and it is hoped that Mr. Berry-Gowan will be able to transition there in July of this year. The Social Work Update stated the following about this housing opportunity:
“The CHOICES home is funded through the Developmental Services of Ontario (DSO). The home is located in rural Dundas, Ontario. The home houses 5 individuals, including Mr. Berry-Gowan, all with significant developmental delays. Staffing is at minimum 3 staff on site 24-7. Mr. Berry-Gowan will have his own private space, including a bedroom, living area and bathroom. This will provide him with a private space when overstimulated. Mr. Berry-Gowan has free access to the entire home, but other residents cannot enter his private space. All his meals are cooked on site, and his medication is administered. All his personal care needs are attended to by the staff. The home has its own vehicle, and he can access the community with staff frequently. This home is MAG locked, and Mr. Berry-Gowan cannot exit the home on his own.
This opportunity is specifically geared to individuals who like Mr. Berry-Gowan have intensive needs and behaviours that require specialized and individualized care plans to allow them to safely live in the community with a high degree of quality of life. The treatment team believes that Mr. Berry-Gowan can have enduring success with this opportunity.”
Dr. Baldeo testified that he has been Mr. Berry-Gowan’s attending psychiatrist since July 2024, and reiterated the comments outlined above in relation to Mr. Berry-Gowan’s mental status and behaviours this year, as well as the conclusion that he is unfit to stand trial.
Dr. Baldeo had last assessed Mr. Berry-Gowan’s fitness to stand trial approximately three weeks ago, and he explained that numerous methods and modalities are used given Mr. Berry-Gowan’s Intellectual Disability and expressive limitations. He testified that Mr. Berry-Gowan has difficulty answering basic questions. Dr. Baldeo has agreed to continue on as Mr. Berry-Gowan’s out-patient psychiatrist and will see him intermittently. He will continue to provide information and test his abilities around fitness; however, cognitive improvement has not been seen thus far. Dr. Baldeo testified that the question as to whether Mr. Berry-Gowan is permanently unfit remains an issue. It is possible that improvements may be seen in the new community environment, so he wants to wait for that. Having said that, Dr. Baldeo acknowledged that Mr. Berry-Gowan is likely permanently unfit.
Dr. Baldeo testified that the CHOICES housing update is significant. He acknowledged that the hospital is not the best environment for Mr. Berry-Gowan given the level of stimulation and the unit layout. Dr. Baldeo expects and hopes that Mr. Berry-Gowan will thrive in the specialized DSO housing. The plan is to transition Mr. Berry-Gowan there over the next few months, and the treatment team will work with the CHOICES team to ensure that successful practices to manage Mr. Berry-Gowan’s behaviour at SJHCH can be translated to CHOICES effectively. Dr. Baldeo testified that it is crucial that the Detention Order be kept in place during this transition in the event that there are challenges and readmission to hospital is required.
Dr. Baldeo testified that Mr. Berry-Gowan has a history of aggression stemming from his ASD and Intellectual Disability. These behaviours have continued in the secure and supported environment of the hospital. Mr. Berry-Gowan has very little insight into his mental illness and requires intensive supports with respect to regulation of his environment and medications.
Analysis and Conclusions:
Based on the Hospital Report and the evidence of Dr. Baldeo, the panel found that Mr. Berry-Gowan remains unfit to stand trial when considering section 2 of the Criminal Code and the relevant case law. In assessing fitness, the panel considered the recent case of R. v Bharwani, 2025 SCC 26. To be fit to stand trial, an accused must be able to make reality-based decisions in the conduct of their defence and intelligibly communicate these decisions to counsel or the court. This requires 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.
Mr. Berry-Gowan has diagnoses of Autism Spectrum Disorder and Intellectual Disability that cause cognitive impairments, expressive communication difficulties, and behavioural symptoms. Despite extensive education, Mr. Berry Gowan does not have a reality-based understanding of the nature or object and/or consequences of the legal proceedings. He is unable to make reality-based decisions and intelligibly communicate these decisions to counsel or the court, nor is he able to meaningfully participate in the court process. While Dr. Baldeo wants to see whether the new living environment changes any of this, it is likely that Mr. Berry-Gowan is permanently unit to stand trial.
The panel concluded that a continuation of the existing Detention Order was the necessary and appropriate, and least onerous and least restrictive Disposition for Mr. Berry-Gowan at this time. The oversight and intensive supports of the Forensic Psychiatry Program and the ORB continue to be crucial in managing Mr. Berry-Gowan’s risk of aggression. This is especially so given that Mr. Berry-Gowan will be transferring to new housing in the coming months. It is certainly hoped that all will go smoothly with this transition, and it appears that the treatment team is doing everything that they can to enable this. However, in the event that there are challenges and readmission to hospital is required (as has happened in the past with transitions for Mr. Berry-Gowan) a Detention Order is required.
The panel was impressed with the treatment team’s significant and intensive efforts to secure appropriate and specialized housing for Mr. Berry-Gowan, and is very hopeful that Mr. Berry-Gowan will thrive there.
DATED this 4th day of June 2026, at the City of Toronto, in the Toronto Region.
Ms. S. Clapp Alternate Chair
Office of the Registrar Ontario Review Board