Re: Jonathan Rubio
ORB File No: 8656
Hearing held on: Monday, May 4, 2026
Place of hearing: Centre for Addiction and Mental Health
Pursuant to: Section 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: Jonathan Rubio Counsel: Mr. F. Bernhardt
The person in charge of hospital: Counsel: Ms. M. Warner
Attorney General of Ontario: Counsel: Mr. D. Brandes
REASONS FOR DISPOSITION
(Dated June 12, 2026)
Introduction
On October 28, 2024, the accused, Jonathan Rubio, was found not criminally responsible on account of mental disorder on charges of possession of a loaded restricted firearm, possession of a firearm while prohibited, and failure to comply with probation, all contrary to the Criminal Code of Canada. By reason of the Disposition of the Ontario Review Board (“ORB”) dated May 7, 2025, Mr. Rubio was ordered to be detained at the Forensic Service of the Centre for Addiction and Mental Health (“CAMH”) Toronto, with privileges up to and including residing in the community in accommodation approved by the person in charge.
On May 4, 2026, the ORB convened a hearing at CAMH for the purpose of the annual review of Mr. Rubio's Disposition pursuant to s. 672.81(1) of the Criminal Code. Mr. Rubio was in attendance at the hearing and represented by counsel, Mr. Bernhardt. Mr. Brandes appeared as counsel for the Attorney General of Ontario and Ms. Warner as counsel for CAMH.
Index Offences
- The circumstances of the index offences are as follows:
“1. On September 27,2023, the accused's mother attended 23 Division with a Mental Health Act - Form 2 - Order for Examination, ordering police officers to take the accused into custody and have him assessed by a physician.
Officers attended his last known address and found the scene full of broken glass and smeared blood throughout. A search for the accused began as officers were concern for his well-being. With the help of the accused's family, officers were able to locate the male outside 42 Rexdale Boulevard, in the City of Etobicoke.
The accused was acting erratically and not making sense when speaking with officers. He claimed to be an FBI agent and began resisting as officers were apprehending him under the strength of the Mental Health Act - Form 2.
The accused was placed in handcuffs and officers performed a pat down search. As officers patted him down, the accused stated that he had a gun on him. Officers continued searching the male and found that the male had a shoulder holster inside of his blazer jacket. Officers located 2 fully loaded magazines, in magazine pouches on the left side of the holster, underneath his left arm.
A loaded black 9 mm Walther Creed handgun was located on the right side of the holster.
The accused was also carrying a pair of handcuffs, 3 knives, and a small walkie talkie radio.
The accused was subsequently placed under arrest, read his rights to counsel, and transported to 23 Division to be held pending a Show Cause hearing.
At the time, Mr. Rubio was bound by a probation order made on November 7, 2022, by the Honourable Justice Colvin that prohibited him from possessing weapons. He was also bound by a weapons prohibition order made on February 22, 2018, by the Honourable Justice Ready.
By way of background, Mr. Rubio was convicted for Assault and received a 10-year firearms prohibition, signed on February 22, 2018. Additionally, he received probation as a result of charges of Mischief and Fail to Comply with Undertaking, which started on November 7, 2022. He was bound by several conditions, including one that prohibited the possession of any weapons.”
Current Diagnoses
- The current diagnosis taken from the Hospital Report as follows:
Schizophrenia;
Cannabis Use Disorder;
Alcohol Use Disorder.
Criminal Record
- According to police records:
| Date | Charges / Convictions | Disposition |
|---|---|---|
| 2012-08-02 | Assault | Suspended Sentence, probation 15 months discretionary prohibition 5 years |
| 2018-01-10 | Fail or Refuse to Provide Sample | $1200, prohibited from operating a motor vehicle for 12 months |
| 2018-02-22 | Assault | 45 days intermittent, probation 12 months, discretionary weapons prohibition 10 years |
| 2022-10-17 | 1) Operation of a Conveyance While Impaired to Any Degree 2) Operation of a Conveyance While Prohibited |
30 days, probation 12 months, prohibited from operating a motor vehicle for 12 months |
Mr. Rubio was also subject to a Probation Order starting from November 7, 2022, for offences of Mischief Under $5000 and Fail to Comply with Undertaking, committed on September 25, 2022. Mr. Rubio recalled that he got into a car accident around 15 or 16, which was a drinking and driving incident. This was shortly after he obtained his license and he was charged and lost his license. As an adult, his first brush with the law involved a domestic dispute and driving under suspension. He had been to jail six or seven times altogether, with the longest time being three months for the current charges.
Background and Personal History
Mr. Rubio's personal history is extensively reviewed in the Hospital Report which was filed as an exhibit at the hearing. Accordingly, there will be no reference to the details in these Reasons. By way of background, Mr. Rubio was born and raised in the Toronto area. He has three younger sisters and a younger brother. Mr. Rubio states that he was raised primarily by his mother. Mr. Rubio's father left the family home when Mr. Rubio was about 13 years of age. Mr. Rubio stated that he was not very close with his father. Mr. Rubio describes his childhood as “good” and said that he was very active in sports including soccer and basketball. He denied ever having either physical or emotional abuse at the hands of his parents.
Mr. Rubio completed his grade 12 education at a Catholic high school in Toronto. He stated that he did not get into trouble in high school, was never bullied or engaged in bullying, and had grades mostly in the 70s with higher marks in both English and physical education. He held a part-time job during his final year of school and also participated in a co-op program at a stock brokerage which resulted in an employment offer when he graduated. He attended Trios College for Web Enterprise and Mobile Programming and obtained employment in that field when he graduated. During this time, his father was convicted of criminal offences and sentenced to five years in jail. This resulted in a stressful situation before his sentencing which continued until he was finally released from jail. Mr. Rubio stated that having lost his employment due to the stressful situation at home, he worked at a number of different warehouses and had a forklift driver’s license.
Mr. Rubio reported having been in three meaningful relationships with women. The first was during and immediately after high school and ended in a domestic dispute. Mr. Rubio began his relationship with his current partner approximately five years ago. They have three children together and his partner has three children from a previous relationship. His partner states that prior to his arrest on the index offences, Mr. Rubio struggled with alcohol use and would frequently engage in binges which resulted in him ending up in jail. He has a history of cocaine abuse. Since his release from custody on the index offences in December of 2023, she states that “he parents better”. She denies that Mr. Rubio had ever been violent with her or her children although they have witnessed his anger outbursts.
Psychiatric History
Mr. Rubio's history of treatment for mental health issues is set out in the Hospital Report. He has had a number of short admissions to hospital under the Mental Health Act (“MHA”).
Mr. Rubio reports that he began using cannabis when he was in grade 8 and used it more regularly from grade 9 onwards. He continued to use cannabis as an adult up to the day before his arrest on the index offences. Mr. Rubio reports that he had a similar pattern of use with alcohol. He reported consuming alcohol every weekend, either a 26-ounce bottle of liquor or 24 bottles of beer. This continued until shortly after he graduated from Trios College when he began to drink less. Mr. Rubio felt that alcohol was the most problematic substance in his life.
Position of the Parties
- At the outset of the hearing Ms. Warner submitted that in the opinion of the treatment team and the hospital, Mr. Rubio continues to represent a significant threat to the safety of the public and that the necessary and appropriate disposition is a continuation of the current Detention Order without amendment. Mr. Brandes stated that the Attorney General supports the submission of the hospital. Mr. Bernhardt submitted that while Mr. Rubio concedes that he continues to represent a significant threat to the safety of the public, the necessary and appropriate disposition should be a Conditional Discharge.
Evidence
The evidence on behalf the hospital was presented by Dr. Kravtsenyuk, the author of the Hospital Report, which was filed as an exhibit. Dr. Kravtsenyuk stated that she has been Mr. Rubio's most responsible physician since May of 2025. By way of update, Dr. Kravtsenyuk stated that Mr. Rubio now resides in the community with his partner and their children. She stated that Mr. Rubio has done very well over the past few months. Dr. Kravtsenyuk stated that Mr. Rubio had a difficult start to the past reporting year. He had just begun to work with Dr. Kravtsenyuk and her treatment team and found it difficult to share with them difficulties he was having with his peer group and with cravings for substances. As a result of the difficulties, Mr. Rubio was readmitted to the hospital in June of 2025. Dr. Kravtsenyuk stated that to his credit, Mr. Rubio then began to be more cooperative with the treatment team and agreed to a change in his medication from oral medications to a long-acting injection (“LAI”). He also expressed a commitment to being abstinent from substance use which had formed part of his difficulties at the start of the year.
Since his discharge from the hospital in July of 2025, Mr. Rubio has been more open and willing to engage with the treatment team. Dr. Kravtsenyuk stated that Mr. Rubio has done well since the discharge. Mr. Rubio had been residing in the community with his mother but has since moved in to live with his partner and their children. He has committed to a lifestyle which is more oriented to his family. His new residence was approved by his community worker. Mr. Rubio still visits with his mother.
Dr. Kravtsenyuk said Mr. Rubio's main activity is looking for employment in the community. He is participating in a training program which is designed to assist him in finding options for employment.
Ms. Warner asked Dr. Kravtsenyuk about the recommendation for a detention order. Dr. Kravtsenyuk stated that this is based upon the totality of her review of the clinical information available to her along with Mr. Rubio’s circumstances in the past reporting year. She stated that he has only recently come under the jurisdiction of the Ontario Review Board for offences which occurred as a result of his untreated major mental illness and substance abuse issues. Dr. Kravtsenyuk characterized the early part of the reporting year as a “rocky start to the year.” Dr. Kravtsenyuk said that the team could support a conditional discharge but at this time would need to see a more sustained period of stability and treatment along with abstinence from substance use. Dr. Kravtsenyuk stated that when Mr. Rubio was readmitted to the hospital in June of 2025, this could not have been accomplished utilizing the MHA. Dr. Kravtsenyuk said that when Mr. Rubio decompensates, he develops an underlying paranoia which significantly increases his risk to the safety of the public. However, the signs of his decompensation are subtle and would not be apparent to any observers. Dr. Kravtsenyuk also stated that it was important that the treatment team have the ability to approve Mr. Rubio's accommodation in the community.
Mr. Brandes asked Dr. Kravtsenyuk to expand on the difficulties presented by reliance on the MHA to bring Mr. Rubio back into the hospital when necessary. Dr. Kravtsenyuk reiterated that Mr. Rubio presents with very subtle symptoms of his illness. These gradually evolve over time. Mr. Rubio finds it difficult to disclose or discuss his paranoia and delusions with the treatment team. Without timely intervention the increase in his symptoms creates a risk to the safety of the public. Dr. Kravtsenyuk was asked about the timeline for Mr. Rubio obtaining the support of the treatment team for a recommendation for a conditional discharge. Dr. Kravtsenyuk stated that it would be a full reporting year with ongoing stability and complete abstinence from substance use.
In response to questions for Mr. Bernhardt, Dr. Kravtsenyuk confirmed that Mr. Rubio had been readmitted to the hospital from June 18 to July 9, 2025. His medications were changed from oral antipsychotics only to a long-acting injectable medication (“LAI”), supplemented by oral medications. Dr. Kravtsenyuk agreed that Mr. Rubio has said that he is motivated by the positive changes which have come from this change and he derives a very positive value from the medication regimen. Dr. Kravtsenyuk agreed that prior to his readmission to hospital, Mr. Rubio had tested positive for alcohol, marijuana, and cocaine. He has not had any positive test results since his discharge in July. Dr. Kravtsenyuk agreed that Mr. Rubio has made his partner his “social life” now. When asked about Mr. Rubio's insight, Dr. Kravtsenyuk said that he has completed a relapse prevention program which she believes he has internalized. All of his UDS samples have been negative since discharge.
The treatment team have a positive relationship with Mr. Rubio's family and his partner attends meetings along with Mr. Rubio. Dr. Kravtsenyuk agreed that there have been no reports of violence to the public in the past reporting year.
Mr. Bernhardt suggested that Mr. Rubio had voluntarily returned to the hospital after speaking to the treatment team about his positive UDS tests in May of 2025. Dr. Kravtsenyuk did not agree with this suggestion. She stated that Mr. Rubio returned to the hospital only after there had been extensive negotiations to convince him to come back in. Mr. Rubio had been very difficult to contact, and it was some time before he eventually agreed to the readmission. Mr. Bernhardt asked Dr. Kravtsenyuk if there was anything to dispute Mr. Rubio's contention that the positive test results came from one “excessive” party. Dr. Kravtsenyuk stated that it was difficult to understand exactly the source of the positive test results. Mr. Bernhardt asked if there was any evidence of delusional or psychotic behaviour at the time of Mr. Rubio's admission to the hospital in June of 2025. Dr. Kravtsenyuk answered that in her opinion, because of the timely intervention of the treatment team, Mr. Rubio had not yet begun to exhibit psychotic behaviour. Dr. Kravtsenyuk reiterated that because of the ability to intervene in a timely fashion the risk to public safety was sufficiently mitigated. Dr. Kravtsenyuk did agree with Mr. Bernhardt's suggestion that since his discharge in July of 2025, there has been nothing in terms of negative behaviours or use of substances and in fact, there are many positive things to say about Mr. Rubio. Dr. Kravtsenyuk did state that many of the positive comments Mr. Bernhardt made about Mr. Rubio are “the results of the timely intervention of the treatment team.”
Dr. Kravtsenyuk was asked by a member of the Board if in her opinion Mr. Rubio would voluntarily come into the hospital if asked under the terms of a conditional discharge. Dr. Kravtsenyuk said that if Mr. Rubio were abstinent from substance use and not experiencing any symptoms then it is likely that he would in fact voluntarily return to the hospital. Dr. Kravtsenyuk stated it would be challenging in the event of substance use with underlying symptoms. Dr. Kravtsenyuk said that Mr. Rubio's insight has improved in the past year since his discharge from the hospital. Mr. Rubio puts a lot of work into remaining abstinent and certainly cares very much about his family and this motivates him to understand his treatment. At the present time Mr. Rubio is seen by his community worker every week and by Dr. Kravtsenyuk on a monthly basis either virtually or in person.
A Board member asked Dr. Kravtsenyuk if Mr. Rubio’s symptoms would be recognizable by his partner were he to decompensate. Dr. Kravtsenyuk said that if these symptoms were intense, then yes, but the more subtle developing symptoms which Mr. Rubio experiences would be difficult for her to recognize. When asked about the recommendation for a conditional discharge, Dr. Kravtsenyuk stated that in the opinion of the treatment team there needs to be a further 12-month demonstration of stability and abstinence. A Board member suggested to Dr. Kravtsenyuk that in reviewing the Hospital Report for the past reporting year it was “a tale of two patients.” Dr. Kravtsenyuk agreed that there was a significant difference between Mr. Rubio's presentation prior to his readmission to the hospital and his discharge on LAI medications in July. While acknowledging Mr. Rubio's success since his discharge, Dr. Kravtsenyuk stated that given all of the information available to her for the past year she did not accept that the MHA would be sufficient to manage the risk to the safety of the public at this time.
Dr. Kravtsenyuk agreed that Mr. Rubio had been residing in the community prior to the finding of not criminally responsible in October of 2024. After the NCR finding was made, Mr. Rubio was again released to reside back in the community. Dr. Kravtsenyuk agreed also that other than the time that Mr. Rubio spent detained in the hospital during the ROL, he has resided in the community the entire time period that he has been under the jurisdiction of the ORB. Dr. Kravtsenyuk stated that although there were no incidents of overt violence while Mr. Rubio was living in the community, the ROL was conducted with the belief that Mr. Rubio's risk to the safety of the public had increased. Dr. Kravtsenyuk did agree that the ROL itself could be characterized as “a complete success.” Dr. Kravtsenyuk was asked about the need to specify an address in the event that the decision of the Board was a conditional discharge disposition. She did agree that if that was the outcome of the hearing, then specifying the address would give the treatment team confidence that Mr. Rubio would not relocate to an address which would otherwise not be approved. Finally, Dr. Kravtsenyuk agreed that in the event of a conditional discharge disposition the treatment team would have the ability to increase the frequency of random UDS samples, if necessary, in order to monitor substance, use which she stated was a precursor to a decompensation in Mr. Rubio's mental status.
In response to questions from Ms. Warner in re-examination, Dr. Kravtsenyuk stated that she did not have any direct evidence as to whether or not Mr. Rubio was noncompliant with his oral antipsychotic medications in May of 2025, prior to his readmission to the hospital. She stated that at the time of his readmission Mr. Rubio would not have met the requirements under the MHA to be admitted on a Form 1.
No further evidence was called at the hearing.
Submissions
In her submissions, Ms. Warner acknowledged the success which Mr. Rubio has demonstrated since his discharge from the hospital in July of 2025 following the ROL. However, she submitted that the Board should pay close attention to the circumstances surrounding the ROL and the risk which Mr. Rubio presented and the tools necessary to return him to the hospital. During May and the early part of June of 2025, Mr. Rubio engaged in substance use over a number of weeks. As set out in the Hospital Report, this resulted in his disengagement from cooperation with the treatment team. Ms. Warner noted that Mr. Rubio was living with family members at the time and there were no reports from the family to the treatment team about his substance use. Ms. Warner stated that at that time, in the opinion of the treatment team, there was an insufficient basis to utilize the MHA to readmit Mr. Rubio to the hospital. Ms. Warner asked the Board to review the Hospital Report which outlined difficulties in both 2020 and 2022 when the family had made attempts to have Mr. Rubio admitted to the hospital which were unsuccessful. Ms. Warner also made reference to portions of the Hospital Report which detailed the attempts made by Mr. Rubio's family in the weeks prior to the commission of the index offences to have him admitted to hospital but being again unsuccessful in any kind of sustained admission. Ms. Warner said that in Mr. Rubio's particular circumstances, the MHA is not sufficient to protect the safety of the public. Ms. Warner submitted that only a detention order could provide the robust tools needed to protect the safety of the public for the upcoming reporting year.
Mr. Brandes adopted the submissions of the hospital. He submitted that although it was tempting to “feel good” about the significant progress Mr. Rubio has demonstrated, it was premature to consider a conditional discharge disposition at this time.
Mr. Bernhardt submitted that the index offences occurred in September of 2023, and Mr. Rubio was found NCR in October of 2024. With the exception of the period of the ROL, Mr. Rubio has been in the community the entire time and there have been no further incidents of violence occurring. Mr. Bernhardt adopted a Board member’s characterization as a “tale of two patients” and that Mr. Rubio at this time represented the better of those two patients. Mr. Bernhardt submitted that it was not the MHA which was required to have Mr. Rubio agree to readmission to the hospital but rather the use of a telephone. Mr. Bernhardt submitted that the necessary and appropriate disposition was a conditional discharge.
Analysis and Disposition
- The threshold issue for the panel to determine is whether or not Mr. Rubio continues to represent a significant threat to the safety of the public. The “significant threat” standard is an onerous one. There must be both a likelihood of a risk materializing and the likelihood that serious harm will occur. An accused is not to be detained based on mere speculation; the Board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the accused to deny them an absolute discharge. As set out in Winko (1999] 1999 CanLII 694 (SCC), 2 S.C.R. 625) the threat must be:
(1) More than speculative in nature and must be supported by the evidence;
(2) Significant in the sense of there being a real risk of physical or psychological harm to individuals in the community and in the sense that this potential harm must be serious; and
(3) The conduct creating the harm must be criminal in nature.
As stated by McLachlin, J. (as she then was) at para. 69
“it is for the court or Review Board, acting in an inquisitorial capacity, to investigate the situation prevailing at the time of the hearing and determine whether the accused poses a significant threat to the safety of the public. If the record does not permit it to conclude that the person constitutes such a threat, the court or Review Board is obliged to make an order for unconditional discharge.”
- The Ontario Court of Appeal re-emphasized the onerous test in Re: Gibson 2022 ONCA 527, per Lauwers J.A. at para. 9:
Huscroft J.A. said in Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 17, that “the ‘significant threat’ standard is an onerous one”. He added that “[t]he board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.” Mere speculation is insufficient. See also, Sim (Re), 2020 ONCA 563, at paras. 63-65, per Strathy C.J.O., Marmolejo (Re), 2021 ONCA 130, 155 O.R. (3d) 185, per Tulloch J.A., at paras. 33-37.
At the outset of the hearing, the Board was presented with a joint submission with respect to significant threat. All parties agreed that Mr. Rubio continues to represent a significant risk to the safety of the public and is therefore not entitled to consideration of an absolute discharge. The Board is unanimous in accepting this joint submission as well founded on the evidence in the Hospital Report and the viva voce evidence of Dr. Kravtsenyuk. As set out in detail in the Hospital Report, Mr. Rubio has a history of physical violence and substance use. While suffering from active symptoms of psychosis, he has experienced auditory hallucinations and paranoid delusions upon which he has acted. Were Mr. Rubio to resume substance use and/or discontinue his antipsychotic medication it is likely that his paranoia would cause him to act out in circumstances similar to the index offences resulting in psychological harm to others and potentially serious physical harm. The Board takes note of the fact that when Mr. Rubio commenced using substances in May and June of 2025, he began to disengage from cooperation with the treatment team and ultimately, although reluctantly, agreed to readmission to the hospital. The Board is unanimous in accepting the evidence of Dr. Kravtsenyuk that this “timely intervention” was necessary given the significant risk which Mr. Rubio posed to the safety of the public.
Having made the finding that Mr. Rubio is a significant threat, the Board is obliged to consider the provisions of s. 672.54 of the Criminal Code in crafting the necessary and appropriate disposition for the upcoming reporting year. The paramount concern of the Board in drafting this disposition is the safety of the public, but there must also be consideration given to Mr. Rubio's reintegration into the community and his other needs. Counsel for the hospital and the Crown submitted that the necessary and appropriate disposition was a continuation of the current detention order without amendment. Mr. Bernhardt submitted that the necessary and appropriate disposition which was also the least onerous and least restrictive was a conditional discharge. All counsel acknowledged that with the exception of the period of the ROL, Mr. Rubio had resided in the community since the commission of the index offences without any further incidents of violence or threats.
The core of Ms. Warner's submission in support of the continuation of the detention order is that utilization of the MHA has been demonstrably unsuccessful in either admitting or detaining Mr. Rubio in hospital in the past. Ms. Warner relies upon the opinion of Dr. Kravtsenyuk that Mr. Rubio's decompensation in mental status as a result of either substance use or noncompliance with antipsychotic medications is very subtle with no overt signs of psychosis and that the MHA would not be sufficient to readmit him to hospital in spite of the increased risk to the safety of the public. Ms. Warner also relies on the evidence that the treatment team require the ability to approve Mr. Rubio's residence in order to safeguard the safety of the public. Mr. Brandes supports the submissions of the hospital and further submits that given Mr. Rubio's recent history, in particular his readmission in May of 2025, that it is premature at this time to consider the less effective disposition of a conditional discharge. Mr. Bernhardt submits that in the event of a conditional discharge disposition, the treatment team do not need to have reliance upon the MHA as Mr. Rubio has demonstrated that he will voluntarily return for admission to the hospital. In Mr. Bernhardt's submission, all that is needed is “a telephone.”
The Ontario Court of Appeal has recently addressed the longstanding issue of the interplay between the enforcement mechanisms found in a detention disposition and the ability of the hospital to readmit an accused to hospital either voluntarily or utilizing the MHA where that individual is bound by the terms of a conditional discharge disposition. In Ramos (Re), 2025 ONCA 820, the court reiterated that when the accused’s timely returned to hospital is a live issue in determining whether to order a conditional discharge or detention order, the Board must also consider whether the Criminal Code’s enforcement provisions in ss. 672.91 to 672.93 would adequately address public safety concerns in the event of a breach of a conditional discharge. Those provisions permit a Justice to order that an accused who breaches a term of a conditional discharge be detained in the hospital.
The issue of a detention order versus a conditional discharge was more recently before the court in Singh (Re) 2026 ONCA 331 which was released after Mr. Rubio's hearing was completed. As part of its decision in continuing a detention order for Ms. Singh, the Board in that case found that the provisions of the Mental Health Act would be insufficient to return Ms. Singh to the hospital quickly in the event of a deterioration in her mental status, nor did the panel believe that she would readmit herself voluntarily if she became psychotic. At paragraphs 8, 9 and 10 of the decision, the Court stated as follows:
“[8] This court has held that, where a conditional discharge has an air of reality, it must be considered: Collins (Re), 2018 ONCA 563, at para. 43. In Ahmadzai (Re), 2020 ONCA 169, this court set aside a detention order on the basis that the Board “gave no meaningful consideration to whether [the appellant’s] risk to the public could be managed under a conditional discharge”: at para. 24. In Ramos (Re), 2025 ONCA 820, 179 O.R. (3d) 126, this court held that where an appellant seeking a conditional discharge proposes safeguards such as a Young clause (by which the accused agrees to attend hospital and submit to assessment or readmission where required) and a treatment compliance obligation, the Board has to consider the proposal carefully. This means considering: (1) whether the evidence and treatment history supported the conclusion that the appellant would not voluntarily attend for treatment; and (2) whether the compulsory mechanisms proposed would not adequately ensure compliance. In that case, the Court held that Mr. Ramos’s history of compliance and voluntary readmission supported a conditional discharge. As to the mechanisms available to ensure compliance, the Court held that the Board erred by not considering the viability of the proposed conditions to address potential treatment refusal. The matter was remitted back to the Board for a new hearing. The Board was specifically directed to consider the effectiveness of a Young clause and treatment compliance condition, considering timelines, enforcement mechanisms, and the appellant’s treatment history.
9As this Court explained in Ramos, s. 672.93(2) of the Criminal Code “empowers courts to order re-confinement in hospital following a breach of conditional discharge … [this] ensures that compulsory readmission is available but subject to judicial authorization, thereby safeguarding liberty while maintaining accountability”: at para. 37. Whether such an order would be appropriate in the case of any particular NCR accused must be decided on the evidence. The Court in the case of Mr. Ramos was not in a position, on the record before it, to assess the nature of the NCR accused’s potential for decompensation – likely, unlikely, slowly, rapidly – and determine whether a Young clause could be judicially enforced on a timeline that would adequately safeguard the public interest. Accordingly, the matter was remitted for a new hearing to consider the question.
10The same result should obtain here. What was needed is a determination of whether a Young clause – together with the other proposed conditions – could practically and effectively address the risk to the public posed by a comparatively stable NCR accused who meets regularly with the treatment team, is compliant with anti-psychotic medication, whose symptoms are managed well with the current medication regime, and who has a commitment of continuing support from the treatment team. The Board would need to make this determination given the evidence of the nature of the appellant’s particular treatment history and likely clinical path to decompensation.”
No specific mention of the use of a Young clause was made in either the evidence or the submissions of counsel at the hearing. Mr. Bernhardt had submitted that in support of his submission that a conditional discharge was the necessary and appropriate disposition the Board should take note that Mr. Rubio did return to the hospital “voluntarily,” although with some necessity of negotiation in June of 2025 for the purposes of readmission. In her evidence, Dr. Kravtsenyuk agreed that Mr. Rubio did ultimately agree to come back to the hospital, but this was after a protracted period of negotiation between Mr. Rubio and the treatment team. The Board takes note that although Mr. Rubio may have returned to the hospital for the purpose of the readmission voluntarily, the readmission itself was under the terms of the Warrant of Committal and the Detention Order and could therefore scarcely be described as “voluntary.” The Board accepts Dr. Kravtsenyuk’s evidence that at the time of this readmission Mr. Rubio did not display any overt symptoms of his ongoing decompensation, there was no psychosis and, in her opinion, the provisions of the MHA would not have been sufficient to admit or detain Mr. Rubio in the hospital.
In paragraph 10 of Singh (Re), above, the Court states that as follows:
“what was needed is a determination of whether a Young clause - together with the other proposed conditions - could practically and effectively address the risk to the public posed by a comparatively stable NCR accused who meets regularly with the treatment team, is compliant with antipsychotic medication, whose symptoms are managed well with the current medication regime, and who has a commitment of continuing support from the treatment team”.
The Board is unanimous in finding that this description of factors to be considered could be an apt description of Mr. Rubio and his relationship with the treatment team. The Court then stated: “The Board would need to make this determination given the evidence of the nature of the appellant’s particular treatment history and likely clinical path to decompensation.”
- The original Young clause consisted of two conditions:
(i) upon notice by the person in charge of the hospital, would immediately submit to attendance and for readmission to hospital; and
(ii) upon the request of the hospital attend for psychiatric assessment, and upon notice of the person in charge, attend for admission to the hospital.
In Ramos at paragraph 10, the Young clause is framed as requiring an attendance for assessment, while at paragraph 31 it is described as addressing the risk of noncompliance with a “readmission order” without explaining what is meant by this phrase. In Singh at paragraph 5, the Court states “The Young clause would require that she attend at the hospital for assessment when requested by the hospital and admit herself to the hospital on request”. A refusal to either attend at the hospital or admit herself to the hospital would be in breach of the Disposition and the enforcement provisions of s. 672.93 of the Criminal Code could be used to obtain a judicial order for readmission.
The Board has carefully considered the factors set out in paragraph 10 of Singh, above, and “the balance of her particular treatment history and likely clinical path to decompensation”. The Board accepts without hesitation the evidence of Dr. Kravtsenyuk that both before and after the circumstances of the index offence, substance use and noncompliance with antipsychotic medication leads to a decompensation in Mr. Rubio's mental status and an increase in his risk to the safety of the public. However, the signs and symptoms are subtle and not accompanied by psychotic symptoms or behaviour which would meet the test of the MHA for readmission to hospital. Dr. Kravtsenyuk had the opportunity to see this firsthand when circumstances led to Mr. Rubio's readmission in June of 2025. The Board finds that although Mr. Rubio may have ultimately attended at the hospital voluntarily, his readmission was pursuant to the authority of the Detention Order. Given the direction to the Ontario Review Board from the Ontario Court of Appeal in both Ramos and Singh, the Board finds that the necessary and appropriate disposition which is at least onerous and least restrictive is a Conditional Discharge.
In order to protect the safety of the public which is the paramount concern as set out in s. 672.54 of the Criminal Code, the Board is unanimous in finding that the terms of the discharge should include a “Young clause.” However, the Board is unanimous in finding that the commonly used phrasing of the Young clause should be amended to create two distinct and unequivocal conditions. The first condition deals with attendance at the hospital and the second, admission to the hospital. Each of these are separate considerations and decisions to be made by the person in charge and the treatment team. Accordingly, the Board orders that the Conditional Discharge contain the following terms:
(i) the accused shall immediately attend at the hospital and participate in a psychiatric assessment if directed to do so by the person in charge or their designate;
(ii) the accused shall immediately comply with the direction to submit to admission to hospital from the person in charge of the hospital, or their designate, and shall remain hospitalized until discharged by the person in charge or their designate.
On the authority of both Ramos and Singh, failure to comply with either of these conditions will trigger the provisions of s. 672.93 of the Criminal Code which might potentially lead to a court ordered remission to hospital.
- The second argument made by Ms. Warner was that the treatment team needs the authority to approve Mr. Rubio's address in order to ensure the safety of the public and the community. This submission is supported by the evidence of Dr. Kravtsenyuk at the hearing. The Board is unanimous in finding that this concern can be addressed by a term of the discharge requiring Mr. Rubio to live at his current address. In the event that that address becomes either unavailable or unacceptable for any reason, either party can bring an application for an early review by the ORB.
DATED this 12^th^ 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