Re H. (A.), 2026 CanLII 56704

Re: H. (A.)

ORB File No: 6980

Hearing held on: Monday, May 4, 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. Alatishe

Dr. L. Leong

Ms. J. Ferguson

Mr. W. Apted

Parties Appearing:

Accused: H. (A.)

Counsel: Mr. N. Xynnis (by Zoom)

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

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

*Pursuant to s. 672.501(1) of the Criminal Code, the Ontario Review Board prohibits the publication, broadcasting, or other transmission of any information that could identify a victim in this matter or a witness who is under 18 years of age.

REASONS FOR DISPOSITION

(Dated June 12, 2026)

Introduction

1. On June 29, 2016, the accused, H. (A.), was found unfit to stand trial on charges of failing to comply with a probation order (x2), assault, indecent acts, indecent exhibition, and vagrancy by gaming or crime and has no lawful profession, all contrary to the Criminal Code of Canada. By reason of a Disposition of the Ontario Review Board (“ORB”), dated May 13, 2025, H. (A.) was ordered to be detained at the Forensic Service of the Centre for Addiction and Mental Health, Toronto (“CAMH”). His Disposition included privileges up to residing in the community in 24-hour a day supervised accommodation approved by the person in charge.

2. On May 4, 2026, the ORB convened a hearing at CAMH for the purpose of the annual review of H. (A.)’s Disposition pursuant to ss. 672.48(1) and 672.81(1) of the Criminal Code. H. (A.) was in attendance at the hearing and represented by counsel, Mr. Xynnis. Mr. Xynnis was permitted to appear using Zoom technology. Ms. Meaney, Student-at-Law, appeared on behalf of the hospital and Mr. Brandes, on behalf of the Attorney General of Ontario.

Alleged Index Offences

3. The alleged index offences occurred on three dates in 2016. The facts underlying the fail to comply charges and the vagrancy charge are best explained by a chronology of events from October 2015 to April 2016.

The charges of fail to comply with probation are based on a probation order that was issued on October 2, 2015. following H. (A.)'s conviction on charges of assault and fail to comply with probation. That probation order included terms that he report as required and that he keep the peace and be of good behaviour.

Between November 9, 2015, and January 21, 2016, H. (A.) failed to report to his probation officer as required. This failure was the basis of the first alleged index offence of fail to comply with probation. The hospital report details attempts made to contact him during the period covered by the charge, namely, November 5, 2015, to January 21, 2016. A warrant on this charge was issued on February 8, 2016.

In the meantime, on January 27, 2016, H. (A.) was sitting behind the victim on a TTC streetcar. She could hear him mumbling and when she looked behind, he spat upon her back and into her hair. The streetcar operator was notified, and H. (A.) was arrested. This incident resulted in the alleged index offence of assault and second alleged index offence of fail to comply with probation relative to its term that he keep the peace and be of good behaviour. Following his arrest on those charges he was released on a recognizance. However, he then failed to attend court on those January 27 charges. In the result, a bench warrant was issued on February 5, 2016.

On March 5, H. (A.) was arrested on that bench warrant, released on a recognizance the next day but then failed to attend court on March 7 as scheduled with respect to those charges. In the result, on March 7 another bench warrant was issued.

On April 12, 2016, H. (A.) was again arrested on a bench warrant while being investigated for his behaviour. Although the report does not say so he presumably was again released on a recognizance because five days later, on April 17, he was arrested in what was then Ryerson University on the last three of the alleged index offences, namely indecent act, indecent exposure, and vagrancy.

More particularly, on April 17, 2016, at the Ryerson University Student Learning Centre, H. (A.) was observed by security officers to be standing on the top of the stairs leading into the learning centre, which was in clear view of an intersection on busy Yonge Street. H. (A.) began to lift his shirt and expose his chest and stomach area, then while speaking to random students he pulled down his pants and exposed his penis, and then with his pants down and genitals exposed, he began to jump up and down in an effort to attract as much attention as possible.

Current Diagnoses

4. Current diagnoses are taken from the Hospital Report dated March 30, 2026:

Schizoaffective Disorder (bipolar type);

Intellectual Developmental Disorder (moderate).

Position of the Parties

5. At the outset of the hearing Ms. Meaney submitted that H. (A.) remains unfit to stand trial and that the necessary and appropriate disposition was the continuation of the current Detention Order without amendment. Mr. Brandes and Mr. Xynnis supported the submission of the hospital.

Evidence

6. The evidence on behalf of the hospital was presented by Dr. Arnold, a resident in psychiatry working under the supervision of Dr. Wilkie. Dr. Arnold was the co-author of the Hospital Report which was entered as an exhibit at the hearing. Dr. Arnold stated that she had become involved in H. (A.)’s outpatient care on July 1, 2025. Dr. Arnold testified that the past reporting year had been a difficult one for H. (A.), resulting in a readmission to the hospital in July of 2025 as a result of inappropriate behaviour at the group home where H. (A.) was residing. Dr. Arnold said that the admission itself had been challenging and that H. (A.)’s behavioural incidents had increased during his stay in the hospital. The team were able to put together a behavioural support plan for H. (A.).

7. Dr. Arnold stated that the treatment team were fortunate in being able to locate a new residence for H. (A.) at META. This was a high support residence with more staff than H. (A.)’s previous accommodation. There were four staff in the home 24 hours a day, seven days a week. H. (A.) had 1:1 staff support at the residence. H. (A.) was discharged to the new residence on October 6, 2025. Dr. Arnold stated that the transition from the hospital to the new residence was not without difficulties. There were a number of incidents of aggressive and inappropriate behaviour involving both staff and co-residents at the home. Dr. Arnold said that H. (A.) has a very low frustration tolerance and is triggered if he does not believe that his 1:1 staff is paying attention to him. He can also become upset if he does not like the activity in which he is engaging. As a result of the early difficulties at the home more staff training was provided to assist in his workers being able to feel safe in managing H. (A.)’s outbursts.

8. Dr. Arnold said that H. (A.) has responded well to a support plan which involves a token economy. H. (A.) is provided rewards for prosocial behaviour in the form of tokens. He can then exchange the tokens for other activities at the group home that he enjoys. H. (A.) is involved in a number of day programs both at the home and at Variety Village.

9. Dr. Arnold was asked when she last assessed H. (A.)’s fitness to stand trial. She stated that this was done two weeks ago and on the day of the hearing. H. (A.) has no understanding of the charges against him. When asked about the role of his lawyer he engages in conversation unrelated to his charges. He does not know the role of the parties to the court process and becomes agitated when asked questions about the trial. Dr. Arnold stated that in her opinion H. (A.) has no reality-based understanding of the proceedings and could not meaningfully communicate with counsel. Dr. Arnold said that as a result of H. (A.)’s underlying cognitive disability and his major mental illness, he is permanently unfit to stand trial. Dr. Arnold stated that in her opinion H. (A.) continues to represent a significant threat to the safety of the public. Even while receiving medication, and the support of the hospital and the treatment team and the staff at his residence, H. (A.) is prone to sexual misbehaviour and physical aggression involving both staff and co-residents. In the event that H. (A.) were not under the jurisdiction of the ORB, then he would likely stop taking his medication and his risk to both strangers and workers would increase.

10. Mr. Brandes did not have any questions for Dr. Arnold.

11. Mr. Xynnis did not have any questions for Dr. Arnold.

12. In response to questions from the Board, Dr. Arnold stated that the same staff that was attacked by H. (A.) continues to work with him at the home. There were no criminal charges as a result of the incidents at the home. Dr. Arnold said that until the end of March, H. (A.) had the benefit of a 2:1 staff ratio. However, the funding for the extra staff person ended and he has received 1:1 care since. There is no time limit for H. (A.) to remain in his current residence. Dr. Arnold confirmed that the use of the token economy has been very successful in helping manage H. (A.)’s behaviour both in the hospital and in the community.

13. No further evidence was called at the hearing.

Submissions

14. All counsel reiterated the submissions made at the outset of the hearing that H. (A.) remains unfit to stand trial and that the necessary and appropriate disposition was a continuation of the current Detention Order without amendment.

Analysis and Disposition

15. 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 five-justice panel 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.

16. The panel is unanimous in accepting the joint submission of the parties. As set out in the Hospital Report and the evidence of Dr. Arnold, H. (A.) represents a significant challenge to the treatment team and to those charged with managing him safely in the community. As a result of a combination of his cognitive limitations and his major mental illness, H. (A.) represents a significant threat to the safety of others. Although as yet unproven, the allegations in the index offences demonstrate that his unwanted touching and other problematic behaviours often have sexual themes. Even with the benefit of 1:1 staff accompaniment, it is clear that in some situations, particularly at night, it is difficult to monitor H. (A.)’s behaviours. This is highlighted by the evidence of his unwanted intrusions and sexual harassment of one of his co-residents at his former residence.

17. The Board is unanimous in accepting the opinion of Dr. Arnold and the hospital that H. (A.) is unfit to stand trial and this is likely a permanent condition. H. (A.) was unable to demonstrate that he understood the nature or object of the proceedings or the possible consequences of the proceedings and is likely unable to meaningfully participate in the proceedings or communicate with counsel. H. (A.) continues to require 24-hour a day, seven day a week supervised accommodation with individualized attention from highly trained supervising housing staff. The Board is unanimous in finding that in considering the provisions of s. 672.54 of the Criminal Code, the necessary and appropriate disposition is a continuation of the current Detention Order without amendment.

DATED this 12th day of June, 2026, at the City of Toronto, in the Region of Toronto.

Mr. G. Beasley

Alternate Chairperson

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Office of the Registrar

Ontario Review Board