Re: D.H.
ORB File No: 3136
Hearing held on: Wednesday, September 24, 2025
Place of hearing: Waypoint Centre for Mental Health Care
Pursuant to: Section 672.48(1) and 672.81(1) of the Criminal Code
Before:
Alternate Chairperson: Ms. T. Mann
Members: Dr. K. Hand
Dr. G. Kerry
Ms. A. Laviola
Ms. R. Chopra
Parties Appearing:
Accused: D.H.
Counsel: Ms. C. Whillier
The person in charge of hospital: Representative: Ms. T. Newman
Attorney General of Ontario: Counsel: Ms. J. Armenise
REASONS FOR DISPOSITION
(Dated January 13, 2026)
Introduction:
On May 11, 2000, the accused D.H. was found unfit to stand trial on charges of sexual assault and sexual interference, contrary to the Criminal Code of Canada (the “Criminal Code”). Mr. D.H. is currently subject to a conditional discharge Disposition Order of the Ontario Review Board (“ORB” or “the Board”) dated September 3, 2024, which includes terms requiring him to reside at P[...] Road, Collingwood, Ontario, refrain from direct contact with children under 16 years of age unless supervised by staff of Waypoint Centre for Mental Health Care (“Waypoint” or “the Hospital) or the group home where he resides, and to remain within the residence and grounds of P[...] Road unless accompanied by staff or person approved by the person in charge of the Hospital for purposes to education, recreation and socialization.
On September 24, 2025, the Board convened to review the issue of whether Mr. D.H. remains unfit to stand trial and if so, what Disposition is necessary and appropriate to manage his care within the context of the relevant statutory framework. Mr. D.H. was present and represented by his counsel, Ms. Whillier. Several group home and treatment team members also present at the hearing to support Mr. D.H..
For the reasons set out below and based on the expert opinions and evidence before it, the Board found that Mr. D.H. remains unfit to stand trial and that his care should continue to be managed upon the terms and conditions of a conditional discharge Disposition upon the following terms and conditions:
(a) Live in the catchment area of Waypoint Centre for Mental Health Care, in 24-hour supervised accommodation, approved by the person in charge;
(b) Report to the person in charge of Waypoint or their designate, not less than once per month;
(c) Refrain from direct contact with children under 16 years of age, unless supervised by Waypoint staff or staff of the group home where he resides;
(d) Remain within the residence and grounds of his approved accommodation, unless accompanied by staff or person approved by the person in charge, for purposes of education, recreation and socialization, and
(e) If arrested for a breach of his Disposition, may be delivered to Waypoint.
- The Board declined a request by the Hospital to extend the time for holding Mr. D.H.’ next annual review to 24 months.
Alleged Index Offences:
- The circumstances giving rise to the alleged Index Offences are taken from the Reasons for Disposition dated October 4, 2024, as follows:
On February 13, 2000, at approximately 4:00 p.m. D.H. was at his residence located at [address redacted]. D.H. has Down's [sic] syndrome and lives with his mother, [name redacted] and his sister, [name redacted]. [His sister] has a 3 1/2 yr old son [name redacted], who also lives in the residence.
D.H. had [the child]in his bedroom closet. Both had their pants and underwear down to their ankles. D.H. put [the child’s] penis in his mouth and sucked. D.H. then touched and licked [the child’s] bum. [Mr. D.H.’ mother] heard the closet door shut and at that time looked and found them sitting with their pants down facing each other. The above was reported to the Children's Aid Society and Police. As a result, D.H. was arrested for Sexual Assault and Sexual Interference.
Background:
Mr. D.H. is currently 45 years of age. His psychosocial history has been set out in the Hospital Report dated August 25, 2025, which was filed as an exhibit at this hearing and need not be repeated in detail here. Of note, the Hospital Report contains information up to and including July 29, 2025.
Briefly, Mr. D.H. was diagnosed at birth with Down Syndrome and his early years were marked by a number of surgeries, including heart surgery, associated with it. At age 5, he underwent an assessment of his intellectual functioning which, using the nomenclature of the day, placed him in the moderate range of mental retardation. He attended public school, with educational supports and accommodations to meet his special needs.
Sexually inappropriate behaviour had become evident by the time Mr. D.H. was 17. Identified problems included fondling himself and masturbating in public, inappropriate sexual behaviours with male and female classmates in school and during school outings, as well as inappropriate sexual behavior with an animal. One of the incidents involved his being found in the school gym change room just as he was about to perform a sexual act on a male peer. (The Hospital Report states that it was not clear from the history whether these incidents were in elementary or high school.) A referral in or around 1997 to York Central Hospital's Behaviour Management Services for assessment resulted in the development of a sex education curriculum and changes to the way in which Mr. D.H. was supervised.
Notwithstanding these initiatives, Mr. D.H. continued to engage in sexually inappropriate behaviours which ultimately led to police involvement. In February 1998, he pleaded guilty to charges of sexual assault and sexual interference involving a 4-year-old male neighbour. Mr. D.H. was then sentenced to a one-year period of probation and a condition requiring him to participate in assessment, therapy and counseling. The assessment indicated that Mr. D.H. had difficulty discriminating between age groups, was "at risk for inappropriate partner selection" and in need of sex education, including a focus on boundaries, relapse prevention, age discrimination training and close supervision.
Progress Under the Jurisdiction of the Board Since Last Reviewed:
Mr. D.H. has never lived independently and has resided in an E3 Community Services Housing group home for nearly 25 years. This placement provides Mr. D.H. with 24-hours a day/7 days per week "eyes on" supervision. A door chime alerts staff when Mr. D.H. leaves his bedroom; staff supervision is utilized in the home’s common areas. There is one female resident living in the home; the five (5) other residents – including Mr. D.H. – are male.
Mr. D.H. continues to live a busy life with staff and co-residents. In the past review period, he attended a number of community performances and events, such as simulated skydiving. A trip to Canada’s Wonderland is planned and Mr. D.H. is very much looking forward to this. He continues to have access to Passport (DSO) funding to subsidize his participation in leisure activities. Currently, efforts are being made to find a “day program” for Mr. D.H. to increase the support and structure available to him while he engages in community-based activities. Passport funding will assist with this.
For the most part, Mr. D.H. gets along well with his co-residents, and he demonstrates positive behaviour. Sometimes he can be defiant with staff and has verbal outbursts towards them. He has verbally aggressed with peers and there have been instances of environmental aggression also. Following these episodes, Mr. D.H. is often remorseful and apologetic.
Mr. D.H. still needs a high degree of supervision to pre-empt what the Hospital Report describes as his “opportunistic nature”; that is, his tendency to quickly spot opportunities where he can engage in sexual behaviours with others whether such opportunities are consensual or not. When in the community, Mr. D.H. is either accompanied by staff in small groups or supervised on a one-to-one basis. In other words, he is never left alone.
Despite the high degree of supervision to which Mr. D.H. is subject, in July 2025 he kissed a female resident of another group home. Investigation revealed that the activity was consensual by both parties. There have been no further incidents reported and the female in question has a new “boyfriend”. Mr. D.H. appears to have taken this development in stride.
According to the Hospital Report, Mr. D.H. does have some understanding of the fact he has to stay away from children as he will cover his face when children appear on television. However, vigilant supervision continues to be necessary particularly when he is in the community.
Mr. D.H. enjoys visiting with his mother who lives with his aunt and her two children. His visits only occur when the children are not present as his mother and aunt understand the seriousness of the situation. The also appreciate they are unable to replicate the level of support and supervision Mr. D.H.’ needs to keep him from sexually offending against others.
Mr. D.H. continues, as he has for the last several years, to strive for more independent in his medication administration. He helps with chores at the residence, earning positive feedback from staff. He independently manages his CPAP machine. He likes to help out with chores.
Mr. D.H. presents as well-groomed. His affect is typically bright, and he says he is happy. He engages well with clinical and group home staff as well as others involved in his care. However, more recently, Mr. D.H. has had bouts of crying in the evening lasting from a few minutes to several hours with no obvious trigger. He becomes easily upset and misperceives information or situations. At times he displays irritability and can become verbally reactive when upset. Mr. D.H. finds ORB hearings to be stressful and worries that he will be admitted to hospital.
Mr. D.H.’ diagnoses are identified at p. 1 of the Hospital Report as Down Syndrome, Mild Intellectual Disability and Mild Cognitive Impairment. Mr. D.H. continues to be incapable of consenting to treatment and his mother acts as his substitute decision maker (“SDM”). With support, he is adherent to his medication regimen and his ORB disposition.
Position of the Parties:
At the commencement of the hearing, all parties were canvassed as to their initial without prejudice recommendations to the Board. Ms. Newman for the Hospital, Ms. Armenise for the Attorney General and Ms. Whillier for Mr. D.H., joined in recommending that Mr. D.H. be found unfit to stand trial. They concurred in recommending that the necessary and appropriate Disposition is continuation of the terms and conditions of his current conditional discharge Disposition, including the change from a specified address on P[…] Road to 24/7 supervised accommodation in the catchment area of Waypoint. The parties diverged on the recommended change to Mr. D.H.’ review period from every 12 months to 24 months. The Hospital and the Attorney General were aligned with the request; Ms. Whillier indicated Mr. D.H.’ preference for the review period to remain once in every 12 months. At the conclusion of the hearing, the Hospital representative and the Crown were not opposed to a yearly annual review.
Counsel for the Attorney General, Ms. Armenise, confirmed that on July 18, 2024, Mr. D.H. had attended before the Honourable Justice Meijers to speak to the status of his outstanding criminal charges. The outcome of that court attendance confirmed there remains a prima facie case against Mr. D.H. The matter of a prima facie case will be addressed again prior to July 18, 2026.
Evidence:
The Board had available to it the documents forming the Record, the Hospital Report dated June 11, 2024, and the viva voce evidence of Dr. P. Ismail. Dr. Ismail confirmed that he had read the Hospital Report and agreed with its contents, including that Mr. D.H. remains unfit to stand trial and that he poses a significant threat to the safety of the public. Dr. Ismail endorsed the analysis of significant threat contained at pp 67 – 69 of the Hospital Report.
Dr. Ismail advised the Board that Mr. D.H. has had a pretty good year overall. The major presenting issue is Mr. D.H.’ cognitive decline. In 2023, Mr. D.H. participated in the Montreal Cognitive Assessment (“MoCa”) and received a score of 15. In January 2025 he underwent a geriatric psychiatric assessment, including the MoCa, in which he scored 131. The assessment resulted in formal diagnosis of mild cognitive decline, most likely of the Alzheimer's type, and recommended that a different type of supported housing be considered in the future, if his cognitive decline progresses.
In Dr. Ismail’s opinion, Mr. D.H. remains unfit to stand trial as a result of intellectual disability secondary to Down syndrome and that he does not anticipate Mr. D.H. will ever become fit to stand trial. Moreover, it is highly unlikely he will develop full insight into his cognitive limitations or understand the risk of sexual violence, including its attendant emotional or psychological harm, he poses to others. Moreover, he does not appreciate the need for continuous supervision.
The Hospital Report contains the following analysis of Mr. D.H.’ fitness to stand trial (at p 69):
Mr. D.H. is deemed unfit to stand trial as he is unable to engage with the Taylor Competency Test, which assesses an individual’s capacity to understand legal proceedings, communicate with counsel, and participate meaningfully in their defense. This incapacity is further underscored by the criteria outlined in R v Bharwani, which require an accused to have a reality-based understanding of the nature and object of the proceedings, comprehend the potential consequences, and make informed decisions about their defense. Given his diagnoses of Down syndrome and intellectual disability, Mr. D.H. lacks the cognitive faculties necessary to fulfill these requirements. He cannot grasp the legal concepts involved, evaluate the options for his defense, or communicate effectively about his choices. Consequently, applying the standards from R v Bharwani, Mr. D.H.’ condition renders him permanently unfit to stand trial, as he is unable to meet the essential legal standards of understanding and participation required for competency.
Given that the assessment of fitness to stand trial must be current to the date of the hearing, Dr. Ismail was asked to assess Mr. D.H.’ fitness. Mr. D.H. became anxious this meant he had done something wrong and might be admitted to hospital. With gentle, caring support from clinical and group home staff present at the hearing with him, as well as his lawyer, Mr. D.H. was able to participate in the assessment. The hearing was stood down to allow time for Dr. Ismail to conduct the fitness assessment. The hearing reconvened in a matter of minutes, and Dr. Ismail was able to confirm his opinion that Mr. D.H. remained unfit to stand trial as of the date of the hearing and would remain so in the future.
As for the assessment of significant threat, the Hospital Report outlined the following risk factors of note (at pp 67-68):
Mr. D.H. carries a longstanding diagnosis of Down Syndrome and moderate intellectual disability, now compounded by a progressive cognitive decline consistent with mild neurocognitive disorder, most likely Alzheimer’s pathology. This constellation of impairments contributes to significant limitations in judgment, impulse control and insight…The January 2025 geriatric assessment described a gradual but clear decline in cognitive function, accompanied by irritability, emotional dysregulation, and increased preoccupation with imaginary scenarios. These changes manifest in episodic crying spells, heightened sensitivity to misinterpretations, and occasional violent outbursts. While he is typically remorseful after such incidents, his behavioural instability reflects the interaction of intellectual disability and emerging dementia. His neuropsychiatric profile is associated with worsening risk over time, as emotional volatility and diminished reality testing increase the likelihood of unpredictable behaviour.
With respect to the incident in July 2025, the Hospital Report describes it as illustrating Mr. D.H.’ impaired social boundaries and opportunistic tendences which, in the context of his lack of insight and cognitive decline, represent a “significant red flag” for future risk, especially in settings where vigilant supervision is not available.
Lastly, the Hospital report notes that Mr. D.H. cannot generalize or internalize treatment strategies. This signifies that effective risk management is possible only through extrinsic supports and a high degree of supervision. As such, continued oversight by the Board is necessary to support Mr. D.H.’ safe and stable community tenure.
With respect to the change in Mr. D.H.’ residency requirement, Dr. Ismail explained that Mr. D.H.’ functioning, and behaviours are expected to become more difficult to manage as his dementia progresses. While Mr. D.H.’ current housing adequately addresses his risk to public safety and his needs, the treatment team wishes to begin the process of finding a facility that can provide the necessary degree of support for Alzheimer's or dementia. Due to lengthy wait lists for an appropriate residence, the team would like to manage the process proactively. Broadening the geographic area within which Mr. D.H. is able to reside will allow the requisite planning to occur.
Next steps over the coming year will include occupational therapy assessments to monitor Mr. D.H.’ functional decline and quite possibly the introduction of psychiatric medication. Group home staff know Mr. D.H.’ presentation very well and will closely monitor him for any significant decline in his cognitive status or increased behaviours.
Analysis and Conclusions
The Board has no hesitation in finding that Mr. D.H. continues to remain unfit to stand trial. The Board accepts Dr. Ismail's evidence that the nature and extent of Mr. D.H.' intellectual disability precludes him from meeting the “limited cognitive capacity test” as set out in R. v. Taylor or to develop a reality-based understanding of nature and object of the criminal proceedings, comprehend the consequences, make informed decisions about his defence, instruct counsel nor meaningfully participate in court proceedings as set out in R. v. Bharwani. The Board further finds that Mr. D.H. is unlikely to become fit to stand trial in the future.
On the totality of the evidence before it, the Board finds that Mr. D.H. continues to pose a significant threat to the safety of the public. In this regard, the Board relies on the clinical assessment of risk as set out in the Hospital Report and the uncontroverted expert opinion of Mr. D.H.’ attending forensic psychiatrist, Dr. Ismail. Mr. D.H.' risk flows from his cognitive limitations, impulsivity and lack of insight regarding appropriate relationships and boundaries, all of which contributed to the serious alleged Index Offences involving a vulnerable child.
The Board notes that Mr. D.H.’ convictions for sexual assault and sexual interference in 1998, two years prior to the alleged index offences, stemmed from similar behaviour. The Board accepts Dr. Ismail's evidence that Mr. D.H.’ propensity towards sexually inappropriate and opportunistic behaviour is unlikely to change. Indeed, even with “eyes on" supervision of group home staff, Mr. D.H. engaged in an “incident” as recently as July 2025 when he kissed a female resident of another group home. This, the Board notes, is similar to his behaviour in November 2019, wherein he kissed a young girl during a community outing when supervising staff fleetingly lost sight of him in a crowded public venue.
Mr. D.H. is doing well overall, which the Board attributes to the high degree of support and supervision he receives from group home staff, including “eyes on” monitoring. The Board has no doubt that absent the level of supervision currently in place, Mr. D.H. would immediately engage in inappropriate sexual behaviour, similar to that in which he engaged at the time of the alleged Index Offences.
The Board finds that changing the residency condition in Mr. D.H.’ disposition Order to one that permits the Hospital to expand the search area for accommodation that will better support him is necessary and appropriate. Given Mr. D.H.’ risk to the safety of the public, his accommodation should be supervised 24 hours per day, seven (7) days per week.
The Board further notes that careful monitoring of Mr. D.H.' mental status is warranted due to his risk of early-onset dementia and its potentially deleterious impact on his already compromised judgment and behavioural controls. The Board finds that it is appropriate in all the circumstances of the case to reduce Mr. D.H.’ review period to 12 months.
Given the potential for rapid decline in Mr. D.H.’ cognitive function and relatedly, his behaviours, the Board finds that the period for review of Mr. D.H.’ Disposition be truncated to 12 months. This will allow for closer monitoring by the Board of his safety in the community and the development of situationally-specific risk management strategies.
In arriving at its disposition, the Board has considered the requirements of s. 672.54 of the Criminal Code which requires the Board to take into account the safety of the public, which is the paramount consideration, the mental condition of Mr. D.H., his reintegration into society and his other needs.
DATED this 13th day of January 2026, at the City of Toronto, in the Region of Toronto.
Ms. T. Mann
Alternate Chairperson
Office of the Registrar
Ontario Review Board