Re: Odean McFarlane
ORB File No: 4980
Hearing held on: Tuesday, May 19, 2026
Place of hearing: Waypoint Centre for Mental Health Care
Pursuant to: Sections 672.81(1), 672.81(2.1) and 672.81(3) of the Criminal Code
Before:
Alternate Chairperson: Mr. J. Weinstein
Members: Dr. W. Johnston Dr. G. Stones Ms. C. Murray Ms. K. Brisson
Parties Appearing:
Accused: Odean McFarlane Counsel: Mr. T. Plummer Amicus Curiae: Ms. C. Francis (via Zoom)
Person in charge of hospital: Counsel: Ms. J. Lefebvre
Attorney-General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DECISION
(Dated June 9, 2026)
Introduction:
On December 13, 2007, Mr. Odean McFarlane was found not criminally responsible on account of mental disorder, on a charge of assault, contrary to the Criminal Code of Canada (“Criminal Code”).
Mr. McFarlane is subject to the terms and conditions of a Decision and Disposition of the Ontario Review Board (the “Board”), dated November 6, 2023, which ordered that he be detained at the Waypoint Centre for Mental Health Care, High Secure Provincial Forensic Programs, Penetanguishene, Ontario (“Waypoint”).
Pursuant to s. 672.56(2) of the Criminal Code, Waypoint notified the Board, by letter dated November 20, 2023, that Mr. McFarlane’s liberty had been restricted. Mr. McFarlane was subject to a significant restriction of his liberties, specifically, a seclusion which commenced on November 2, 2023.
Mr. McFarlane was present at the hearing and was represented by his counsel, Mr. Tarique Plummer. Mr. McFarlane’s mother, and other family members, were also in attendance.
Ms. Christal Francis appeared as Amicus.
Mr. McFarlane is currently serving a custodial sentence, which is anticipated to be over on July 2, 2026, at which time he will be returned to Waypoint pursuant to the current detention order disposition
A Hospital Report, dated March 21, 2023 (the "Hospital Report"), was entered as Exhibit 1.
An Update to the Hospital Report, dated August 29, 2023 (“Update”), was entered as Exhibit 2.
A Restriction of Liberty Report, dated May 7, 2024 (“ROL Report”), was entered as Exhibit 3.
On May 19, 2026, the Board convened a hearing at Waypoint initially to conduct an annual review of the current Disposition, as well as the restrictions on Mr. McFarlane’s liberty, pursuant to s. 672.81(2.1) of the Criminal Code. Mr. McFarlane appeared for both his ROL hearing and Annual Hearing. The ROL hearing was completed and all parties agreed to a Decision in relation to the ROL being issued.
The next issue was the Annual Hearing.
Mr. McFarlane’s mental condition and risk to public safety was last assessed by the hospital in November 2023 prior to the accused being transferred to jail where he is currently serving a sentence following convictions on two counts of aggravated assault.
Mr. McFarlane was requesting an Absolute Discharge at the annual hearing or in the alternative a Conditional Discharge.
It was agreed by the parties and the panel that the annual review could not proceed as the accused’s mental condition and risk to public safety has not been assessed since November 2023. An assessment of the accused’s mental condition and risk, completed by a forensic psychiatrist, is required to make a disposition.
The parties agreed that a Pre-Hearing Conference (“PHC”) was necessary to determine the parameters of Mr. McFarlane’s assessment. The panel initially decided it would leave the parameters of Mr. McFarlane’s assessment, and whether it should be independent, to a PHC. After further consideration, the panel concluded that it should decide these issues and requested written submissions from the parties with respect to whether the assessment should be completed by a forensic psychiatrist not affiliated with Waypoint.
After reviewing the submissions of the parties, the panel determined that the assessment of the accused’s mental condition and risk shall be completed by a forensic psychiatrist affiliated with St. Joseph’s Healthcare Hamilton. Furthermore, a PHC shall be held following the Board’s receipt of the assessor’s report in order to schedule the accused’s next annual review hearing and determine the length of time required to hold the hearing taking into account the anticipated positions of the parties.
The following was ordered:
IT IS HEREBY ORDERED, pursuant to section 672.121(b)(ii) of the Criminal Code, that an independent assessment of the accused’s mental condition and risk to public safety be conducted by a forensic psychiatrist affiliated with St. Joseph’s Healthcare Hamilton. The assessor shall provide a written report to the Ontario Review Board by July 10, 2026, addressing the factors set out in section 672.54 of the Criminal Code and providing a recommendation as to the necessary and appropriate disposition;
IT IS FURTHER ORDERED that, upon receipt of the assessor’s report, the Board shall arrange a pre-hearing conference for the purpose of scheduling the accused’s review hearing pursuant to s. 672.81(1) of the Criminal Code.
When a hospital significantly restricts the liberty of an accused for more than seven days, it has an obligation, under s. 672.56(2)(b) of the Criminal Code, to provide notice to the Board, as soon as possible. Under s. 672.81(2.1), the Board is then required to convene an ROL hearing to review the hospital’s decision, also as soon as possible. Mr. McFarlane has been in custody since November 22, 2023. Various adjournments for multiple reasons happened, which now made this date necessary for the ROL hearing.
For the ROL, the issues at this hearing were:
a) Whether the decision made by the person in charge, to significantly increase the restriction of liberty on Mr. McFarlane, was warranted and necessary, as well as the least onerous and least restrictive option in the circumstances, at the time of its onset November 2, 2023; and
b) Whether it continued to be so until November 22, 2023.
- Counsel for the hospital, counsel for the Attorney General and counsel for Mr. McFarlane advised that this was a joint submission. All parties agreed that the initial restriction of liberty was necessary and appropriate, as was its continuation until November 22, 2023, at which time Mr. McFarlane was taken into custody.
Index Offence:
- The circumstances giving rise to the Index Offence are extracted from the Reasons for Decision and Disposition dated December 11, 2023:
“On July 18, 2005, while Mr. McFarlane was on probation for earlier offences, he confronted the female victim in her building’s laundry room. He did not know her. He punched her repeatedly in the face and head. She was 63 years old and weighed about 100 lbs. At the time, Mr. McFarlane was not compliant with his medication.”
Reasons for Restriction of Liberty:
- The Restriction of Liberty Report provides the reasons for the restriction of liberty, as to both its initiation and its continuation until November 22, 2023, as follows:
“On November 2, 2023, seclusion was initiated. At approximately 1000 hours, a co-patient returned to the unit and began heading back to their room. Mr. McFarlane was observed to come behind them and aggressively hit them two times in the right side of the head. Mr. McFarlane then stood over the co-patient for a few seconds, and once hearing the Code White had been activated, returned to his room, and slammed the door. A seclusion order was obtained from the duty doctor. Staff attempted to speak with Mr. McFarlane however he refused to communicate with them and placed blankets over his head.
On November 22, 2023, Mr. McFarlane was assisted to attend his bail hearing on the program IPAD with the wireless headphones; this was in relation to the outstanding charges of: Assault and Assault with a Weapon (August 21, 2023), and Aggravated Assault (November 2, 2023) . Later that afternoon, the Program Director attended Mr. McFarlane’s door to inform him of his pending discharge and remand to the Central North Correctional Centre (CNCC). At approximately 1650 hours, six Waypoint staff in personal protective equipment, four OPP officers from the Emergency Response Team, two clinical managers, and the program director attended Mr. McFarlane’s door; leg irons and handcuffs were applied, and he was escorted to the lower sally port for discharge. Mr. McFarlane was cooperative and selectively mute after the restraints were applied; he walked cooperatively to the elevator and from there, to the lower sally port without speaking to the escorting staff. Upon physical search at the lower sally port, a small white pill of Lurasidone 40mg, was found in his pocket. From the lower sally port, Mr. McFarlane was transferred into the custody of the OPP from Waypoint at approximately 1705 hours.”
Evidence at the Hearing:
- The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Ismail, who appeared by Zoom. He testified as follows:
a) Mr. McFarlane had caused a severe assault on a co-patient, resulting in a subdural hemorrhage to the victim, requiring helicopter transfer to Toronto Western Hospital and ICU care.
b) At the outset of the Restriction of Liberty, the clinical team did not know whether the assault was driven by his bipolar disorder, personality traits, or other factors. Because of this uncertainty, the treatment team assessed a risk of imminent reoccurrence of violence and determined that seclusion was required to maintain safety.
c) While Mr. McFarlane was in seclusion, he made multiple threats to staff, threw unknown fluids, banged on the door, and was highly agitated.
d) Mr. McFarlane refused medication repeatedly, and staff were only able to administer it after many hours of persuasion.
e) Mr. McFarlane exhibited paranoid and persecutory delusions while he was in seclusion.
f) A room search was conducted during the restriction of liberty and located a sharpened plastic object hidden in the seams of Mr. McFarlane’s blanket. This item was concerning because it could have been used as a weapon, particularly given Mr. McFarlane’s recent, serious assault.
g) The ROL ended on November 22, 2023, when Mr. McFarlane was arrested for the assault on the co-patient.
h) He has had no contact with Mr. McFarlane since his arrest.
i) The November 2, 2023, aggravated assault caused a life-threatening, and permanently life-altering, brain injury to the victim. The assault involved a powerful blow delivered from behind.
j) The ROL Report indicates that Mr. McFarlane never expressed any regret for the assault, and the treatment team could not identify any triggers for it.
- No other evidence was called.
Analysis and Conclusions:
The Board agrees that a restriction of liberty has taken place, pursuant to the decision of the Ontario Court of Appeal in R v MLC (2010 ONCR 843), as well as R v Campbell (2018 ONCA 140).
The evidence before us is that the initial restriction of liberty was necessary and appropriate for public safety, because of the severe assault on a co-patient.
Dr. Ismail’s evidence establishes that the restriction of liberty, from November 2 to November 22, 2023, was necessary because of imminent risk of serious violence, active psychotic symptoms, weapon making behaviour, threats, agitation, and medication refusal. The ROL was required to maintain safety in the context of a recent catastrophic assault and ongoing behavioural instability.
Based on the evidence before us, the Board has concluded that the hospital’s decision to significantly restrict Mr. McFarlane’s liberty, by placing him in seclusion from November 2 to November 22, 2023, was warranted and necessary for the safety of the public.
DATED this 9th day of June 2026, at the City of Toronto, in the Region of Toronto.
Mr. J. Weinstein
Alternate Chairperson
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Office of the Registrar
Ontario Review Board