Re Jude Kanikkai, 2026 CanLII 53917

Ontario Review Board

Re: Jude Kanikkai

ORB File No: 6927

Hearing held on: Wednesday, May 6, 2026

Place of hearing: Centre for Addiction and Mental Health

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. G. Beasley

Members: Dr. Y. Alstishe Dr. L. Leong Ms. J. Ferguson Mr. W. Apted

Parties Appearing:

Accused: Jude Kanikkai Counsel: Mr. J. Halberstadt

The person in charge of hospital: Counsel: Ms. M. Warner

Attorney General of Ontario: Counsel: Mr. D. Brandes

REASONS FOR DISPOSITION

(Dated June 3, 2026)

Introduction

1. On March 16, 2016, Jude Kanikkai was found unfit to stand trial on charges of repeatedly communicating directly or indirectly with person, and assaulting a peace officer, all contrary to the Criminal Code, (the “Code”).

2. Mr. Kanikkai is currently subject to a Disposition of the Ontario Review Board, (the “Board”) dated, May 12, 2025, detaining him at the Forensic Service of the Centre for Addiction and Mental Health (“CAMH” and/or the “hospital”) with discretionary privileges up to and including living in the community in 24 hour a day supervised accommodation approved by the person in charge.

3. On May 6, 2026, the Board convened a hearing pursuant to s. 672.48(1) and s. 672.81(1) of the Code to review Mr. Kanikkai’s Disposition. Mr. Kanikkai was present and represented by counsel. A Tamil interpreter was also present to assist Mr. Kanikkai if required, but the hearing proceeded without the necessity of his assistance.

4. The issues before the Board are whether Mr. Kanikkai remains unfit to stand trial, and if so, what is the necessary and appropriate disposition to manage that his risk to the public having regard to the criteria set out in s. 672. 54 of the Code.

5. At the commencement of the hearing, the parties present jointly submitted that Mr. Kanikkai remains unfit to stand trial and that there should be no change to his current Disposition.

6. For the reasons that follow the Board finds that Mr. Kanikkai remains unfit to stand trial and that there be no change to his current Disposition.

Evidentiary Record

7. Dr. Igoumenou co-authored the Hospital Report dated April 21, 2026, Exhibit 1, and testified on behalf of the hospital. No other evidence was adduced at the hearing.

Background

8. Mr. Kanikkai’s personal and psychiatric history, including the details of his mental disorder and treatment since being found unfit to stand trial are described in detail in the Hospital Report. Briefly, Mr. Kanikkai is 52 years of age, married with one adult son. He has been living in the community since April 2021. He currently resides at Shepherd Lodge, in 24 hour supervised long term care housing. He is financially supported by the Ontario Disability Support Program.

9. Consistent with the last reporting year, Mr. Kanikkai is seen monthly by his forensic outpatient case manager, and Dr. Igoumenou, who became his treating psychiatrist in January 2025. He is incapable of making either treatment or financial decisions. Mr. Kanikkai’s wife, the primary victim of the index offence provides substitute consent for treatment. The Public Guardian and Trustee is his substitute decision maker with respect to financial affairs.

10. Mr. Kanikkai’s current diagnoses include psychotic disorder due to a medical condition (temporal lobe epilepsy), alcohol use disorder, in remission in a controlled environment, and major neurocognitive disorder, secondary to multiple etiologies (alcohol use, seizure disorder and query traumatic brain injury).

Alleged Index Offences

11. The alleged index offences occurred over a four-month period in 2015, from June through October.

12. The following summary is taken from the most recent Hospital Report:

Alleged Offences:

1. Criminal Harassment 264(2)(B)CCC, (June 16 – June 26, 2015)

2. Enter Premises where Entry Prohibited, (June 19 & June 25, 2015) - Provincial Offence

3. Intoxicated in a Public Place, (June 26, 2015) – Provincial Offence

4. Assault Police Officer 271(A)CCC, (October 22, 2015)

Criminal Harassment: June 16 – June 26, 2015

According to the Toronto Police Service Narrative Text Hardcopy dated June 27, 2015, Mr. Kanikkai and the victim met in 2001 and were married through an arranged marriage. They had one 9-year-old child in common. In 2006, Mr. Kanikkai was in a car accident and became dependent on painkillers and alcohol. In the beginning of 2012, he and his wife separated and had an “on and off” relationship as Mr. Kanikkai tried to achieve sobriety. There was an open file with Toronto Children's Aid after Mr. Kanikkai’s arrest in 2011 for a domestic related assault.

On June 26, 2015 police were called to attend 1 Firvalley after another apartment tenant called stating that Mr. Kanikkai was on the 5th floor, drunk and refusing to leave. He was known by tenants in the building due to his loud and obnoxious behaviour when intoxicated and had previously been seen attempting to get into his estranged wife’s apartment. He had been previously trespassed by both police and Toronto Community Housing from the property.

Police arrived and located Mr. Kanikkai intoxicated in the hallway of the 7th floor. He was placed under arrest for provincial related charges (See Provincial Synopsis) and brought to 41 Division to prevent the repetition of the offence and for the safety of the victim.

Police returned to Mr. Kanikkai’s wife’s apartment shortly after and an audio and written statement was taken. She advised that on June 16, 2015 she told Mr. Kanikkai that he was not welcome in her apartment as she wanted to ensure the safety of her son. Mr. Kanikkai continued to attend her apartment, usually wanting money and food and a place to stay. On June 16, 2015, he attended her apartment three times, and was repeatedly encouraged to leave. On June 17, 2015, he was located outside the apartment building by Toronto Community Housing and was removed from the property. Again, on June 17, his wife returned home from the school in the afternoon and Mr. Kanikkai was waiting for her under a tree outside of the apartment building. She did not speak to him and immediately left the area to go to a friend’s place. On June 18, 2015, Mr. Kanikkai attended the apartment and she immediately called police. On June 21, 2015, he attended the apartment door. Toronto Housing was contacted. On June 25, 2015, he attended the apartment again and Toronto Housing was contacted again. On June 26, 2015 he attended the apartment door and she did not answer. Police were called to attend.

Mr. Kanikkai was charged with harassment based upon the above information.

Assault Police Officer: October 22, 2015

According to Toronto Police Service Narrative Text Hardcopy, on October 22, 2015, Mr. Kanikkai was arrested under the Mental Health Act and transported to the Rouge Valley Centenary Hospital for an assessment. While waiting at the hospital with the officers, he spoke randomly to the other patients in that area and became increasingly agitated. He repeatedly asked the officers to kill him and began yelling obscenities. An officer attempted to locate a private room for him during this waiting period, but was not successful. Mr. Kanikkai indicated that he wanted to leave and stood up in an attempt to leave the emergency area. One of the officers asked him to sit down and as he sat, Mr. Kanikkai kicked the officer in the right leg with his right leg. Mr. Kanikkai was restrained to prevent a continuation of the assault and was subsequently arrested for the assault.

Fitness

13. The following with respect to fitness in the past reporting year was set out in the Hospital Report:

Mr. Kanikkai has continued to reside at Shepherd Village (long-term care facility) in Scarborough. He was overall compliant with his medication, and he did not use any alcohol or drugs over the reporting period. There were no incidents of aggression or violence reported. There were no re-admissions to hospital. He reported to his case manager once a month and met with Dr. Igoumenou once a month.

Mental health summary

Mr. Kanikkai’s mental health remained stable throughout the reporting year. He continued to communicate to the FOPS team that he could hear conversations outside his room or on television, the content of which was previous conversations he had with his friends or the treating team.

He remains unfit to stand trial. When his fitness was assessed in January 2026 and April 2026, Mr. Kanikkai did not recall the details of the index offence. When explained, he would ask whether he was assaulted and whether alcohol and cocaine could cause this (meaning the assault). He did not understand his diagnosis, the symptoms, or why he had to take medication. He did not understand the roles of a Judge, the prosecution, and defense counsel. He could not explain what guilty and not guilty meant, and could not instruct counsel. He had a limited understanding, even when the court process was explained to him.

Mr. Kanikkai continued to ask about working and driving, or who hit him on his head repeatedly. He could not fully understand the limitations he has due to his medical condition.

Mr. Kanikkai has been encouraged to participate in activities offered through Shepherd Village. There was no staff support available to get him involved in activities in the community or volunteer/ work programs.

Physical health summary

Mr. Kanikkai is seen by the geriatric psychiatrist Dr. Barsky. His health issues include Seizure Disorder (temporal lobe epilepsy; followed by neurologist Dr. Lena at CAMH), hyperammonemia, cirrhosis/Liver disease, Wilson’s Disease (no treatment required), history of HTN, dyslipdemia, pre-diabetes, hypomagnesemia, urinary issues, severe OSA (diagnosed during admission in May 2019. A sleep study was completed. He refused CPAP despite several attempts). Mr. Kanikkai’s physical health has been stable throughout the reporting year.

Substance use summary

There has been no substance use over the reporting year.

Concerning behavior summary

There have been no concerning behaviors in the reporting year.

Self-care/ADL summary

Mr. Kanikkai takes care of his personal self-care. Shepherd Village staff support and assist him with his physical and mental health needs.

Social support

Mr. Kanikkai’s social support included his wife and son. He visited home consistently on weekends. His wife received OPIC approval as an approved person on April 3, 2023. His son continued studying mechanical engineering at the Toronto Metropolitan University.

Overall strengths

1. External supports. Mr. Kanikkai has lived for the last five years in a locked, high-support nursing home. He received great support from his family. His overnight weekend visits were successful.

2. No problem behaviour despite ongoing symptoms of illness.

3. Substance use: abstinent in a controlled environment.

Salient challenges

Mr. Kanikkai has had limited engagement in any structured activities. Limited treatment response and poor insight into his diagnoses, care needs and potential risks.

Emerging treatment goals

The team will continue to encourage Mr. Kanikkai to participate in activities at Shepherd Village and explore other community options for him.

MENTAL STATUS EXAMINATION (April 2026)

Mr Kanikkai is a 52-year-old man of Sri Lankan origin. He was seen online via Webex, with Ms. Laticia DiBernardo (Case Manager). He was at his supported accommodation. He was pleasant and appropriate in interaction and appeared to be comfortable. We had a good rapport. He maintained good eye contact, and no abnormal behaviours were observed. His speech was his usual in terms of volume and rate, but rather repetitive and poor in terms of content and spontaneity.

Mood: reported feeling 'I am good, thank you for asking' and objectively he was euthymic with reactive affect.

Thought/perception: no evidence of formal thought disorder. He reported long-term hallucinatory experiences associated with the TV, or Mr. Kanikkai speaking with others on the phone. "Me and my friends talk, same thing hear outside the door...saying same thing...not now but early'.

He continued having limited insight and judgement.

His cognition remained poor.

Re-offence Scenario

Mr. Kanikkai has limited ability to care for himself and is unable to manage his medications due to his cognitive deficits. Without appropriate treatment and supervision, he would likely stop taking his medications, leading to increased seizure activity and psychotic symptoms. This could lead to disorganized and violent behaviour, similar to his previous aggression when he was markedly unwell. He may also begin using alcohol again, which would further destabilize his mental state and increase his risk of violence.

PSYCHIATRIC IMPRESSIONS AND RECOMMENDATIONS

Fitness to Stand Trial

Mr. Kanikkai’s fitness to stand trial was most recently assessed in April 2026. He was aware that he was facing criminal charges. He forgot what his charges were, but was able to accept that one of his charges was related to assaulting a police officer, and one was related to his wife. He usually understood the meaning of an oath and was aware that people were not permitted to lie in a courtroom and could be punished for doing so. He did not know his plea options. He was not able to state the potential consequences of being found guilty and not guilty.

Overall, Mr. Kanikkai’s responses have remained the same compared to last year’s reporting period. Despite having a very rudimentary understanding of the nature and object of the courtroom proceedings and of the potential outcomes, he remains unfit to stand trial from a psychiatric perspective, given his very significant cognitive impairment, which renders him unable to retain and use the information he would require to instruct counsel and to mount a defence on his behalf. Given the irreversible nature of his cognitive impairment, Mr. Kanikkai is likely permanently unfit.

Team Review of Recommendation

The clinical team held an Annual Planning Conference on March 10, 2026, and were unanimous in their opinion that the appropriate recommendation was for no change to Mr. Kanikkai’s disposition. The team discussed whether a Conditional Discharge could be recommended, but felt that Mr. Kanikkai remained with poor insight into his needs, and regularly requested to go home to his wife’s residence, even though his wife would be unlikely to care for him, attend to all of his activities of daily living, and manage risk issues while caring for her son and while working.

The team was in agreement that Mr. Kanikkai may be able to safely travel to Sri Lanka, with a stopover in Europe, under the supervision of his wife, for up to 4 weeks, with an itinerary approved by the Person in Charge.

14. Dr. Igoumenou, his treating out-patient psychiatrist for the past year and a half gave oral evidence at the hearing. She testified that there have been no changes in Mr. Kanikkai’s presentation in the past year, that he experienced a couple of seizures, that there were no incidents of aggression or violence and no substance use.

15. Dr. Igoumenou testified that she assessed Mr. Kanikkai’s fitness in January and April of 2026 and found him unfit on both occasions. Dr. Igoumenou gave evidence that, despite explaining the court process, its procedures and his role to Mr. Kanikkai, he was unable to retain the information. Further, in the April assessment, Mr. Kanikkai was unable to remember the details of the index offence or who is present at a trial. After prompting, Mr. Kanikkai was able to say articulate the role of the judge but did not understand the meaning or consequences of a guilty or a not guilty plea and wasn’t able to provide clear answers regarding his ability to instruct counsel. Dr. Igoumenou testified that she does not expect any of these deficits to change over time.

16. Dr. Igoumenou testified that, in her clinical opinion, Mr. Kanikkai continues to meet the significant threat threshold based on a review of the risk assessment tools as well as his psychopathology. Dr. Igoumenou testified that apart from the historical factors, there are clinical factors, being his insight deficits, his cognitive deficits, his ongoing symptoms and his management issues, even when on a detention order. Mr. Kanikkai continues to struggle with stress and coping, has a very rare mental health condition secondary to an organic issue, being psychosis secondary to the temporal lobe dysfunction and epilepsy. Dr. Igoumenou added that although currently abstinent, Mr. Kanikkai used alcohol for many years.

17. Dr. Igoumenou gave evidence that Mr. Kanikkai cannot function on his own, needs a lot of support from trained caregivers and doesn’t participate in any programming, either behavioural, social or substance use related. Dr. Igoumenou testified that Mr. Kanikkai has a permanent placement in a long-term care facility that is locked 24/7 and caters to people with physical and mental health issues. She added that he requires assistance to take his medications and assist with the tasks of daily living, including hygiene and housekeeping.

18. Dr. Igoumenou testified that Mr. Kanikkai doesn’t understand the ORB or its involvement in his life and he frequently asks if he can go to live with his wife and son, which option is not viable given his high care needs. Mr. Kanikkai also expresses a desire to work and drive a car, neither of which is a possibility for him as a result of his epilepsy and cognitive issues.

19. Dr. Igoumenou testified that Mr. Kanikkai is seen by the outpatient team regularly, that he currently takes about 25 pills per day, but that he doesn’t like to take pills and would not take them if he had a choice. Dr. Igoumenou added that Mr. Kanikkai does not retain a lot of the information provided to him by the treatment team and suggested that he might retain 10 – 20% of the information provided, especially with respect to the index offence and fitness, and that Mr. Kanikkai regularly mixes up his accident with court proceedings and whether or not he was the victim.

20. Dr. Igoumenou testified that, with respect to emerging treatment goals, the team will encourage him to participate in programs and activities in the residence. Mr. Kanikkai has expressed an interest in English language lessons, but unfortunately, they are not available given his current housing.

21. Dr. Igoumenou testified that Mr. Kanikkai has expressed the desire to work, which is being explored, but that he could participate in recreational activities such as cards, music, and so on at his residence.

22. In response to a question about his visits with his wife and son, Dr. Igoumenou testified that his wife is always present and that she communicates well with the treatment team.

23. In response to a question about Mr. Kanikkai’s ongoing hallucinations, Dr. Igoumenou testified that after Mr. Kanikkai has had an actual conversation with someone, he hears that conversation again later, but this doesn’t seem to trouble or upset him, and he ignores it. Dr. Igoumenou added that the treatment team has had difficulty optimizing Mr. Kanikkai’s medication regimen given the organic cause and the other medications he takes for his physical needs, and for these reasons, no steps have been taken regarding the ongoing residual symptoms of his mental illness.

24. In November 2025, a hearing was held pursuant to s. 672.33 of the Criminal Code of Canada and a prima facie case established against Mr. Kanikkai. Counsel for the Attorney General informed the panel that the charges against Mr. Kanikkai remain outstanding and that sufficient evidence can be adduced to put Mr. Kanikkai on trial.

Final Submissions

25. The hospital submitted that the evidence is clear that Mr. Kanikkai remains unfit and is likely permanently unfit as a result of his inability to retain and understand information, including the index offence, necessary to meaningfully participate in the trial process and instruct counsel. The hospital also submitted that the significant threat threshold has clearly been met given that without the current level of support Mr. Kanikkai receives, he would likely stop taking his medications, decompensate and violence would likely result. Counsel for the hospital submitted that the least onerous, least restrictive and most appropriate order is a continuation of the current detention order without amendment.

26. Counsel for both the Crown and Mr. Kanikkai agreed with the hospital’s position and therefore a joint submission was made to the Board.

Analysis and Conclusions

27. For many years, the assessment of an accused to stand trial has utilized what became known as the Taylor Test, often summarized as the “limited cognitive capacity test.” The test was essentially a series of questions about the role of the parties to the trial, the meaning of an oath and the potential consequences. In 2023 the Ontario Court of Appeal released a decision of a panel of five judges in R. v. Bharwani 2023 ONCA 203. This decision was in turn appealed to the Supreme Court of Canada which released its judgment in R. v. Bharwani, 2025 SCC 26 on July 25, 2025. In upholding the decision of the OCA, Justice O’Bonsawin, writing for the majority in a 6:3 decision stated:

6I disagree. As I will explain, an accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes 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. The capacity required to make those decisions is 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. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. 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.

And in summary:

77To conclude, the text, statutory context, and purpose of the definition of “unfit to stand trial” support an interpretation 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.

28. Having considered all of the evidence and the joint submission presented by the parties, the Board finds that Mr. Kanikkai remains unfit to stand trial and is likely permanently unfit. The Board also finds that, based on the evidence, the threshold of significant risk has been met. In the circumstances, we also find that there should be no change to the current Disposition.

29. In coming to this conclusion, the Board has considered its responsibility pursuant to s. 672.54 of the Code to make a disposition that is the least restrictive, least onerous and necessary and appropriate in the circumstances, taking in to account the paramount consideration of the safety of the public, the mental condition of the accused, his reintegration into society, and his other needs.