Re: Christopher Mack
ORB File No: 8847
Hearing held on: Thursday, September 25, 2025
Place of hearing: Waypoint Centre for Mental Health Care
Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code
Before: Alternate Chairperson: Ms. T. Mann Members: Dr. K. Hand Dr. G. Kerry Ms. A. La Viola Ms. R. Chopra
Parties Appearing: Accused: Christopher Mack Counsel: Ms. C. Francis (via Zoom)
The Person in Charge of Hospital: Counsel: Ms. J. Lefebvre
Attorney General of Ontario: Counsel: Ms. S. Curry
REASONS FOR DISPOSITION
(Dated January 30, 2026)
Overview
On August 13, 2025, the accused, Christopher Mack, was found unfit to stand trial on account of mental disorder of Criminal Code of Canada charges of utter threat and attempt to disarm police officer, in connection with events that took place on June 15, 2024. The matter of a disposition was referred to the Ontario Review Board (“the ORB” or “the Board”).
On September 25, 2025, the ORB convened a hearing at the Waypoint Centre for Mental Health Care (“Waypoint” or “the Hospital”) to review the issue of whether Mr. Mack continued to be unfit to stand trial, and if so, the necessary and appropriate disposition to manage his care. A secondary issue to be determined was whether an earlier period of time in seclusion that exceeded 7 days constituted a significant increase in the restrictions on Mr. Mack’s liberty requiring review by the Board.
Mr. Mack was present at the hearing and represented by his lawyer, Ms. Francis. Ms. Francis appeared virtually, with the prior consent of the Board. Also present at the hearing to support Mr. Mack was Mr. Andrew Powley, a representative of Mr. Mack’s group home provider, Karis Group Disability Services (Christian Horizons).
Position of the Parties
The Hospital and the Crown were joined in recommending that Mr. Mack be found unfit to stand trial and detained at Waypoint. Ms. Francis declined to take a position regarding the issue of Mr. Mack’s fitness to stand trial. Neither did she take a position on the issue of the necessary and appropriate disposition. Ms. Francis indicated that her client would like to go home and that he realizes he cannot go home right now.
With respect to the issue of Mr. Mack’s seclusion from June 22, 2025, to August 21, 2025, all parties took the position that by virtue of the clear wording of the Criminal Code, the seclusion was a matter governed by the Mental Health Act, and therefore not a matter within the jurisdiction of the Board to determine. All parties maintained their initial positions in closing submissions.
After hearing the evidence and the submissions of the parties, the Board ordered that Mr. Mack be detained at Waypoint on the following terms and conditions:
(i) to attend within or outside of the Hospital for necessary medical, dental, legal or compassionate purposes;
(ii) Hospital grounds privileges, beyond the secure perimeter, escorted by staff;
(iii) To abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant;
(iv) To submit samples of his urine and/or breath to the Person in Charge of Waypoint Centre for Mental Health Care or their designate for the purpose of analyzing whether he has ingested alcohol, drugs or any other intoxicant; and
(v) To refrain from having in his possession any firearm, ammunition or other offensive weapon, or being in the company of any person possessing a firearm other than a peace officer.
Alleged Index Offences
- The following synopsis of the alleged index offences is taken from pages 1-2 of the Hospital Report dated September 3, 2025, which was made an exhibit at the hearing:
“It is alleged that on June 15, 2024, a worker at the Christian Horizons Group in Adjala called the police to report that Mr. Mack was being violent and needed to be removed.
He damaged the company's work van by breaking the windshield. It was noted that Mr. Mack was currently withdrawing from methamphetamine. Through an audio statement of a staff member, the police learned that at 14:00 pm that day, Mr. Mack wanted to take his medication for drug withdrawal, but staff told him that he could not do so because it was scheduled specifically for the evening. At approximately 16:30 p.m., he yelled at the staff and demanded his medication for withdrawal once again. After staff told Mr. Mack that he could not provide it to him at that time, he threatened to kill the staff and rape his family. He approached the group home minivan and punched the windshield with a closed fist multiple times causing significant damage. Mr. Mack also slashed the front driver-side tire with a knife causing it to deflate. Police attended and arrested him. Mr. Mack began kicking the rear cruiser door and banging his head on the cruiser cage which separated the front and back of the police vehicle causing the whole cruiser to shake. Mr. Mack kicked the car’s camera off the mount and started biting it as well. A large metal piece which was attached to the cruiser became detached from it. The rear driver side door seal was broken and sticking outwards. While in the back of the cruiser, Mr. Mack started yelling that he wanted to kill himself. He was apprehended under the Ontario Mental Health Act and taken to the Southlake Hospital. While Mr. Mack was being searched, he kicked an officer's leg and grabbed the officer’s service pistol with both hands and began pulling it in an upward motion attempting to remove it from its holster. He was struck by the officer which caused him to release his grip on the gun. As the officer was advising Mr. Mack of his rights to counsel, he spat through the open window of the cruiser at the officer hitting him on the right side of the face. While on route to the hospital, he told the officer, "I’ll kill you once I get out of restraints". Upon arrival at the hospital, officers attempted to remove Mr. Mack from the cruiser in order to escort him into the hospital. He laid down on his back and started kicking the officer striking him multiple times in the stomach.”
Background
The Hospital Report provides a great deal of information concerning Mr. Mack's personal and mental health history, details of the alleged index offences and his course following his admission to Hospital. Given that the Hospital Report was made an exhibit in this hearing, it is not necessary to reproduce in detail all of the information contained within it in these Reasons. Of note, however, are Mr. Mack’s diagnoses of schizoaffective disorder, bipolar type; amphetamine type substance use disorder, moderate, in early remission; alcohol use disorder, moderate, in early remission; and intellectual developmental disorder. There is a differential medical diagnosis of fetal alcohol spectrum disorder.
Mr. Mack is now 33 years of age. He was born in Moose Factory, Ontario. His biological parents are reportedly deceased. During his developmental years, Mr. Mack’s course was marked by neglect and instability. Child protection services were involved from his infancy; Mr. Mack was apprehended from his family of origin on three occasions between the years of 1994 and 1996. The cited reasons were lack of supervision, alcoholism, unfit home and emotional rejection. He was made a Crown ward at the age of six. Mr. Mack experienced 26 moves between home and foster placements and 10 different caregivers between birth and the age of five.
During his youth, Mr. Mack reportedly had behaviour problems including truancy, fighting, stealing, lying, breaking rules, running away from home and punching holes in walls. He also experienced emotional and sexual abuse as a child. He struggled in social settings and had difficulty integrating with peers at school. Apparently, Mr. Mack brought a knife to school in 2009 to teach peers who were making fun of him a lesson. He was suspended from school for a week.
A medical report from the Ministry of Community and Social Services in 1998 indicated provisional diagnoses of borderline mental retardation, attention deficit hyperactivity disorder and anxiety disorder with selective mutism. Mr. Mack was prescribed Ritalin. In March 2002, provisional diagnoses indicated selective mutism, attention deficit hyperactivity disorder, adjustment disorder with mixed behavioural and oppositional defiant disorder. A May 2002 follow-up indicated diagnoses of attention deficit hyperactivity disorder, fetal alcohol and selective mutism.
According to a psychological report from the Toronto Catholic District School Board in 2009, Mr. Mack had attended at least eight different educational settings. He struggled academically throughout his school years and was supported by an individual education plan (IEP). He attended special education classes. The 2009 report described Mr. Mack as having difficulty in several areas including organizational skills and very weak learning skills:
“Chris is currently working well below average. During this assessment, it was found that he demonstrates Well Below Average intellectual potential. This supports the previous assessments that led to a diagnosis of Developmental Disability. He demonstrates significant difficulty in the areas of verbal concept formation, working memory, processing speed, and receptive language. He scored in the Well Below Average range academically. His self-concept appears to be an area of concern. He is anxious. He meets the DSM-IV criteria for diagnosis for Moderate Mental Retardation (318.0).”
Collateral records suggest Mr. Mack moved from Moosonee around the age of 15. By November 2007, he resided in a group home in Barrie, arranged through Toronto Native Child and Family Services. Mr. Mack is said to have been aggressive towards staff, impulsive and struggled to attend school due to behavioural problems. By 2010, Mr. Mack was living in a group home in Stouffville. In 2013, he was living on his own in a home staffed by two staff 24 hours a day, seven days a week. In 2017, he began living at his current Christian Horizons (now Karis) group home in Tottenham. According to Christian Horizon staff, Mr. Mack preferred to be in the city and did not like the policy that there be no drug use on Christian Horizons’ property. Consequently, he was not often there overnight. There are reports of incidents of violence and threatening by Mr. Mack towards staff while being transported in staff vehicles. During one such incident, Mr. Mack placed a staff member in a headlock and attempted to gouge his eyes out.
Mr. Mack has a history of alcohol abuse and has reportedly previously used crystal methamphetamine on a daily basis. He has also used cocaine, heroin, morphine, cannabis and magic mushrooms. Mr. Mack has a history of prescription drug abuse involving Xanax. Mr. Mack’s drug use has been implicated in numerous hospital attendances and admissions and there is a documented history of it exacerbating his mental health difficulties.
Mr. Mack has an extensive mental health history from an early age. The history set out in the Hospital Report reveals that Mr. Mack had many attendances at, and brief admissions, to hospital, for psychiatric difficulties. His outpatient mental health history is a set out in the Hospital Report at pages 6 – 13; his in-patient and emergency mental health history is summarized at pages 13 – 35.
As a youth, Mr. Mack had been diagnosed with ADHD, developmental delay and FASD. As he aged, later diagnoses included depression, bipolar and generalized anxiety disorder. He has also been diagnosed with drug-induced psychosis. When symptomatic, Mr. Mack demonstrates paranoia, affective and behavioural instability as well as homicidal and suicidal ideation. The course of Mr. Mack’s mental status clearly reflects a connection between his use of licit and illicit substances and increased aggression and psychosis. Mr. Mack’s history also reflects a connection between substance use and inability to adhere to treatment. At times, Mr. Mack was variably compliant with treatment and follow-up. Such compliance as he was able to attain was largely the result of support provided by group home staff. Overall, he has a poor history of compliance with treatment and supervision
In recent years, Mr. Mack’s many attendances at hospital were often related to needing food or a place to stay or medication (typically benzodiazepines) for anxiety and agitation. There were also many instances when Mr. Mack’s attendances at hospital was prompted by dysregulated and aggressive behaviours in the community, at which times he would be brought to hospital by police.
Mr. Mack was also on a succession of Community Treatment Orders which ultimately proved ineffective in ensuring his stability in the community and compliance with treatment and follow up. During periods of agitation, it was often necessary for Mr. Mack’s behaviour to be brought under control by means of physical and chemical restraints. He was frequently threatening and combative with police officers and hospital staff and destructive of property.
Mr. Mack has a criminal record. He has prior convictions for assault, assault with intent to resist arrest, mischief and failing to comply with court order. On August 14, 2024, he was convicted of charges of assault, mischief, destroy property and failing to comply with a release order. He was placed on probation for 12 months until August 13, 2025. Of note, Mr. Mack’s criminal record is not reflective of the high number of contacts he has had with police in multiple jurisdictions over many years.1
Mr. Mack has no significant work history and is financially supported by the Ontario Disability Support Program (“DSO”). Mr. Mack receives DSO Passport funding. He has been found incapable of managing his finances, and his substitute decision maker is the Office of the Public Guardian and Trustee.
Mr. Mack did not complete high school. He is not married and does not have children. He is supported by former foster parents, the Smalls, and his sister, Stephanie Mack, all of whom reside in Moosonee. Karis staff at his group home remain supportive as well.
Progress After Alleged Index Offences
Following the events of June 15, 2024, Mr. Mack was discharged from the emergency department into police custody. At court, Mr. Mack was discharged to the community upon terms of interim judicial release and, among other conditions, required to live at his group home pending trial.
On August 5, 2024, Mr. Mack was brought to hospital (Unity Health Network – St. Michael’s Hospital) accompanied by police pursuant to a Bench Warrant after a Form 47 was issued. Pursuant to the terms of his CTO, he was to have received an injection of Clopixol Depot every seven days, for which he had failed to attend. Once in the back of a police car, he became agitated and began banging his head against the plexiglass and spitting at officers. He admitted to using alcohol and crystal methamphetamine. At the hospital, he was placed in four-point restraints. He calmed and was agreeable to receiving his Clopixol Depot injection.
On August 9, 2024, Mr. Mack was assessed by Dr. Andrew Wang while detained at the Central East Correctional Centre, pursuant to a Form 48 dated July 29, 2024, to assess his fitness to stand trial on Criminal Code charges of mischief under, assault, fail to comply with undertaking x 3, theft under $5000 x2, mischief, possess property under $5000 x 2, possess imitation firearm and fail to comply with release order. Dr. Wang’s opinion was as follows:
Diagnosis – It is my opinion that Mr. Mack suffered from a primary psychotic illness, such as Schizophrenia or Schizoaffective Disorder. This had been previously established and he had required a high level of support in the community via an Assertive Community Treatment team. He also had a significant history of substance use, primarily crystal methamphetamine, suggesting he likely also suffered from a Stimulant Use Disorder. Records also suggested a diagnosis of a developmental delay and he did appear to have some difficulty understanding and retaining information in today’s assessment.
Assessment of Fitness to Stand Trial – Overall, Mr. Mack was able to demonstrate an understanding of the nature and object of his court proceedings, though with some difficulty. Most of the information had to be conveyed and explained to him, after which he seemed to understand and be able to reflect back. It did not appear that he had active symptoms of psychosis that were impacting his ability to understand the court process. He was able to communicate reasonably effectively, but in simple terms and with repetition and clarification. As such, it is my opinion that he is fit to stand trial, though I would recommend that things be explained slowly and clearly to him throughout the court proceedings to ensure that he is able to meaningfully participate.
On August 14, 2024, Mr. Mack was returned to court and ultimately found guilty of the charges set out at paragraph 24 above.
On September 4, 2024, Mr. Mack presented to North York General Hospital accompanied by police. Police had received several calls reporting Mr. Mack as running through backyards and dumpsters. Mr. Mack admitted to smoking crystal methamphetamine the night before. He reported feeling anxious and paranoid. He remained agitated in hospital and required five-point restraints, seclusion and chemical sedation to manage his aggressive behaviours.
On October 9, 2024, Mr. Mack again presented to North York General Hospital by ES, accompanied by police, for reportedly acting aggressively in the community with gasoline and a screwdriver. He had been restrained and tasered by police.
On November 18, 2024, Mr. Mack was taken to North York General Hospital by police. He was wheeled in wearing handcuffs and presented as extremely agitated. Mr. Mack reported that about two hours prior to being apprehended by police, he had consumed a litre of wine and smoked crystal methamphetamine. He was held in two-point restraints and chemically sedated. Once he was no longer agitated and able to ambulate on his own, he was discharged to police custody.
On February 7, 2025, Mr. Mack presented to Stevenson Memorial Hospital complaining of heart palpitations after smoking methamphetamine. He reported hallucinations but was not distressed by them. It was noted Mr. Mack was on a CTO and compliant with medications. He was discharged when he reported his symptoms having resolved.
At some point between February 7, 2025, and March 8, 2025, Mr. Mack appears to have been arrested for breach of the terms of his probation order dated August 14, 2024 (fail to reside at Karis group home and fail to report as required) and subsequently detained at Toronto South Detention Centre (TSDC).
On March 8, 2025, Mr. Mack was seen in follow up at the Centre for Addiction and Mental Health (CAMH – FEIS Program) while detained at TSDC. At that time, correctional officers reported no concerns.
On April 2, 2025, Mr. Mack presented to the emergency department of the CAMH FEIS Program escorted by correctional officers after reporting auditory hallucinations about demons telling him to kill himself. He was highly agitated. He had been repeatedly self-injuring by biting his arms and kicking his cell door. He had previously been admitted from March 28 to April 1 to the Trillium Hospital for a foot injury caused by kicking his cell door. At that time, Mr. Mack reported experiencing some harassment from other inmates and was apprehensive about returning to the detention centre. He endorsed symptoms of psychosis and paranoia. He stated he had punched another inmate because he was “stressed, stressed”. During his admission to CAMH, Mr. Mack was placed in restraints due to his aggressive and biting behaviours.
Mr. Mack did not do well in custody. He was actively psychotic (paranoid, hearing voices telling him to kill himself), anxious and self-injurious (cutting and biting his wrists/arms). He was very agitated and aggressive at times and voiced being stressed, scared and having a difficult time sleeping. Between April 2, 2025, and his admission to the High Secure Provincial Forensic Programs Division at Waypoint on June 17, 2025, Mr. Mack had several attendances at the emergency department of Unity Health Toronto – St. Joseph’s Health Care, accompanied by correctional officers from TSDC. He was also admitted to CAMH from May 8, 2025 – May 12, 2025.
On June 17, 2025, Mr. Mack was admitted to the Forensic Assessment Program at Waypoint, under the care of Dr. W. Komer, for an assessment of criminal responsibility on charges of attempt to disarm peace officer and utter threats (the alleged index offences). It quickly became apparent that Mr. Mack’s fitness to stand trial was an issue. Dr. Komer’s report to the court dated August 12, 2025, indicated that during interviews with Mr. Mack, Mr. Mack expressed himself in a manner reflective of his lacking the ability to make and communicate reality-based decisions related to the conduct of his defence or instruct counsel to do so and intelligibly communicate these decisions to counsel or the court. As such, it was the opinion of Dr. Komer that Mr. Mack was unfit to stand trial. Following a court attendance on August 13, 2025, a Warrant of Committal – Unfit was issued. Mr. Mack has remained on the Forensic Assessment Program (FAP) under the care of Dr. Komer throughout his hospitalization.
Clinically, Mr. Mack’s affect has fluctuated from euthymic, to irritable and angry. He has endorsed feelings of paranoia. Thought content has been notable for references to witchcraft. He has been inconsistent in his reports of perceptual disturbances, reporting, and then denying, auditory and visual hallucinations. Behaviour-wise, Mr. Mack has engaged in environmental and verbal aggression, as well as self-injurious behaviour, including repeatedly punching and biting himself. These behaviours have at times required the use of seclusion and chemical restraints to manage.
Mr. Mack’s engagement with staff has primarily been related to having his immediate needs met. At times he has refused to engage with staff or terminated the interaction prematurely. Mr. Mack has required extensive support, reassurance and redirection from staff upon experiencing delusions and perceptual disturbances. He has been mostly receptive to such interactions. He has been compliant with accepting PRN medication. Mr. Mack’s engagement with co-patients was limited initially. Since the discontinuation of seclusion, he has increased his efforts to engage with co-patients but remains cautious.
Mr. Mack has been deemed incapable of consenting to treatment with psychiatric medication. His Substitute Decision Maker is the Ontario Public Guardian and Trustee.
Mr. Mack was secluded from June 22, 2025, to August 21, 2025, for verbal and physical aggression towards a co-patient and staff. Behaviours included threats to kill staff, punching and kicking out at the air, screaming, punching/kicking/shouldering his door, spitting directly in a staff member’s face (spatter also hit other staff members) and self-harming (using his shirt as a ligature around his neck, punching himself in the head). He was regularly provided with seclusion relief and his seclusion order was reviewed daily. He was seen by an independent psychiatrist (i.e. not Dr. Komer) for review and assessment at 72-hours, seven and 28 days post-seclusion, and every 28 days thereafter. All consultations concurred in opining that on-going seclusion was necessary to mitigate Mr. Mack’s risk of harm to others and himself. On August 22, 2025, the Hospital notified the Board by way of a “Campbell letter” that Mr. Mack had been secluded for a period exceeding seven days, but that the Hospital did not view this as a restriction of liberty given the Board had not yet made a disposition order. The Board replied by way of letter dated August 25, 2025, indicating that this information would be provided to the presiding panel at Mr. Mack’s initial hearing and that issues related to the application of the Criminal Code’s restriction of liberty provisions could be addressed at that time.
Evidence at the Hearing
The Board had available to it the documents forming the record, including extensive documentation related to Mr. Mack’s alleged index offences, as well as the Hospital Report. Dr. Komer adopted the contents of the Hospital Report and provided the Board with a brief overview of Mr. Mack’s progress since his admission to Hospital as well an update covering the period of time between the preparation of the Hospital Report and the hearing, focusing in particular on the issue of Mr. Mack’s fitness to stand trial.
Approximately two hours prior to the hearing, Dr. Komer met with Mr. Mack and conducted a fitness assessment. Dr. Komer concluded that although there was an overall improvement in Mr. Mack’s ability to communicate, likely due to the benefits of medication, abstinence from substances and residing in a stable, controlled environment, he remained unfit to stand trial. Mr. Mack said he was not in trouble with the law. He did not know the charges against him or the available plea options, even when asked in a directed fashion. He did not understand the meaning of an oath or the role of a Crown attorney. Mr. Mack did not understand the purpose of the Ontario Review Board or what the initial hearing was about. He was unable to recall any details in connection with a recent meeting with his lawyer. He did however understand that his lawyer’s job is to help him, a judge makes decision and that he could go to jail if he is found guilty.
Dr. Komer noted both the extent and the longstanding nature of Mr. Mack’s intellectual developmental disability and expressed considerable doubt as to whether Mr. Mack will be able to become fit to stand trial. However, it was too early to determine whether Mr. Mack is permanently unfit to stand trial and that, with a lot of coaching and support from the treatment team, he might become fit to stand trial. Dr. Komer’s opinion in this regard was based on Dr. Wang having found Mr. Mack fit to stand trial in July of 2024, as well as Mr. Mack now demonstrating some improvement in his overall presentation.
Dr. Komer spoke of the circumstances giving rise to Mr. Mack’s seclusion and said that the purpose of it was to prevent harm to others, primarily, but also to prevent harm to himself. There has been no further need for seclusion since August 21, 2025.
As to the need for Mr. Mack to be detained in a high secure hospital setting, Dr. Komer pointed out Mr. Mack’s established history of leaving his group home, and his frequently-stated desire to leave the hospital. In this context, Dr. Komer was of the view that there would be a “really high risk” of Mr. Mack eloping from hospital and increasing the danger he poses to others and himself. Dr. Komer elaborated on the amenities that will be available to Mr. Mack at Waypoint, including going off-unit to the canteen, the gym, the pool and the coffee shop, among others, all within the umbrella of the high secure setting of Waypoint. These opportunities would be contingent upon Mr. Mack maintaining the good behaviour he has demonstrated over the last month and continuing to progress in achieving his privilege “levels”.
With encouragement from clinical staff, Mr. Mack has gone swimming in the pool, attended a drumming circle and had some meetings with Waypoint’s First Nations spiritual advisor. He has also had visits with staff from his group home. Dr. Komer noted that Mr. Mack has enjoyed engaging in Indigenous cultural activities.
In response to questions from counsel for the Crown, Dr. Komer confirmed that Mr. Mack posed a risk of harm to the safety of the public due to his diagnoses, criminal record for offences involving assaultive behaviour, his history of aggression more generally, and his alleged index offences, including that of attempting to grab a police officer’s gun. Dr. Komer referenced the findings of the HCR-20 v 3 dated September 3, 2025, set out at pp 48 – 50 of the Hospital Report.2
In response to questions from Mr. Mack’s counsel, Dr. Komer confirmed that Mr. Mack’s returning to his group home setting was not appropriate at this time, but that it could become so in the future if Mr. Mack were to become psychiatrically and behaviourally stable. Currently, Mr. Mack’s place at the group home is being held for him and the plan is for group home staff to continue to provide support in the way of visits. Community outings with approved persons are not available at Waypoint as a matter of policy, and Dr. Komer did not think he could recommend this privilege in any event, due to the level of risk posted to others by Mr. Mack at this time. However, if the treatment term were to conclude that Mr. Mack’s rehabilitation was being hindered by lack of community privileges, the treatment team would ask the Hospital to request an early hearing to review Mr. Mack’s disposition order.
In response to questions from the Board, Dr. Komer confirmed that Mr. Mack is amenable to taking his medications and that at a very basic level, he understands that the medications help him. Mr. Mack has up to this point been co-operative with the blood testing necessary to support continued use of clozapine.
Dr. Komer did not know if Mr. Mack’s Passport funding from DSO will follow him to Waypoint or if so, how it might be used, but said the unit social worker had expertise in this area and would definitely look into the issue.
The subject of a Gladue report was raised by the panel. Dr. Komer felt, as a general proposition, that more information as to Mr. Mack’s background would be helpful given the Hospital’s information was somewhat limited. However, the doctor was dubious as to the necessity for a Gladue report at this time, given the Hospital’s ability to provide Mr. Mack with some services (e.g. healer, spiritual advisor, drumming) reflecting his native ancestry. There was also the uncertainty generated by Mr. Mack’s being unfit to stand trial, in the sense that he might become fit at any point in the future, including before the report could be completed.
Analysis and Conclusions – Fitness to Stand Trial
The central issue for the Board to determine is whether Mr. Mack is now fit to stand trial. The legal framework for the Board’s inquiry is as set out in the leading case of R. v Bharwani, 2025 SCC 26. In this regard, the Board must consider whether Mr. Mack’s diagnoses of intellectual developmental disorder, schizoaffective disorder – bipolar type and substance use disorders renders him incapable of understanding the nature and object of the proceedings against him or the possible consequences of the proceedings or to communicate with counsel.
In coming to this conclusion, the Board must consider, among other relevant factors, whether Mr. Mack has (a) a reality-based understanding of the nature or object and possible consequences of the proceedings, (b) the capacity to make decisions as to available options and understand the basic consequences arising from those options and (c) the capacity to intelligibly communicate with the court as well as counsel, all within the case-specific context of their ability to make any decision encompassed within the right to make full answer and defence.
The evidence before the Board is that although Mr. Mack’s overall condition has improved, he remains unfit to stand trial. He does not understand that criminal charges have been laid against him. It follows that he does not have an understanding of the nature and object of the criminal proceedings, nor can he make informed decisions about his defence, communicate with and instruct counsel, nor meaningfully participate in court proceedings. In this regard, the Board accepts and relies upon the uncontroverted expert opinion of Dr. Komer who has worked with and had the opportunity to assess Mr. Mack’s mental condition and cognitive functioning (within the context of the various elements of fitness to stand trial) on many occasions since Mr. Mack’s admission to Waypoint in June 2025.
On the record before it, the Board has no difficulty reaching an independent conclusion that Mr. Mack is currently unfit to stand trial. Although Mr. Mack is not currently floridly psychotic in the sense of being “overwhelmed” by delusions, hallucinations, misperceptions or disordered thinking, his ability to develop a reality-based understanding of the legal situation in which he finds himself is significantly impacted by his intellectual developmental disorder and schizoaffective disorder – bipolar type. These diagnoses, acting together and separately, serve to impact his ability to understand the nature and object of the criminal matter currently before the court or any of the other aspects of fitness to stand trial articulated in Bharwani.
The Board concurs with Dr. Komer and finds that it is premature to find Mr. Mack permanently unfit. Dr. Komer indicated that Mr. Mack has now developed some understanding of the roles of a few courtroom participants; with the benefit of health teaching focused on the necessary elements of fitness to stand trial, he may yet be able to become fit.
The Board acknowledges Dr. Komer’s evidence to the effect that the nature and extent of Mr. Mack’s intellectual developmental disability may ultimately prevent him from acquiring and retaining the necessary degree of knowledge, decision-making and communication ability to render him fit to stand trial. However, given the fundamental importance of the presumption of innocence, working in tandem with the right to make full answer and defense, Mr. Mack is entitled to the benefit of ongoing efforts to restore him to fitness.
Analysis and Conclusions – Risk of Harm, Necessary and Appropriate Disposition
Having heard and considered the entirety of the evidence as well as the submissions of the parties, the Board finds that a detention disposition is the necessary and appropriate vehicle within which to provide the extrinsic support required for Mr. Mack to progress in his recovery, rehabilitation and reintegration.
Mr. Mack’s extensive history of exceedingly violent and aggressive behaviour when symptomatic, non-adherence to treatment and follow up, even when connected to community-based mental health supports, history of elopement, past opportunistic use of licit and illicit drugs, lengthy history of not remaining in appropriately supportive settings, and strong desire to leave Waypoint, all support the conclusion that he is in need of continued assessment and treatment within the high-secure hospital setting of Waypoint.
Within the secure perimeter of the Hospital, Mr. Mack will have a considerable degree of liberty to participate in the many available programs and amenities at Waypoint and to benefit from a high degree of structure and support. In this environment, he will have the best opportunity to achieve a level of stability which has thus far eluded him in life. This, in turn, will best support his return to fitness to stand trial.
Turning now to the necessary and appropriate terms, it is evident that Mr. Mack’s major mental illness continues to be active. It is still early days in terms of finding an effective medication regimen. Mr. Mack is in need of psychoeducation presented in a manner that best allows him to understand and appreciate the information being provided as to the reasons for his being under the jurisdiction of the Board and to become fit to stand trial if possible. Mr. Mack has not yet had the benefit of assessment and treatment for his substance use disorders; his current abstinence is the product of his residing in a maximum secure setting where access to substances of abuse is extremely limited. The necessity for prohibitions regarding use of substances, and the use/possession of weapons is obvious from Mr. Mack’s lengthy history of substance use impacting upon his cognitive, affective and behavioural stability, as well as the facts and circumstances of the alleged index offences. Further, Mr. Mack will be required to submit samples of urine and/or breath to permit the necessary monitoring to ensure adherence to the abstention clause.
Analysis and Conclusions – Gladue Report
The Board orders that a Gladue Report be prepared expeditiously and in time for Mr. Mack’s next annual review. In discharging its inquisitorial mandate, the Board is required to pay particular attention to the unique circumstances of Indigenous persons detained in psychiatric facilities.
Jurisprudence recognizes that as a consequence of Canada’s colonial history and assimilationist policies, many Indigenous persons have become disconnected from their ancestral communities, culture and associated positive social structures, and suffered many other harms.
Mr. Mack is an Indigenous person. Very little is known about his or his family’s inter-generational exposure to trauma and the ways in which colonial policies have impacted them. This information, once obtained, will enhance the Board’s ability to properly carry out its duty to seek, gather and review all relevant evidence affecting considerations of the factors set out in s. 672.54 of the Criminal Code. Moreover, the Board finds that a Gladue Report will inform Mr. Mack’s treatment plan.
If Mr. Mack should become fit to stand trial prior to his first annual review, the work will not be lost. The Gladue Report will follow Mr. Mack as he returns to court. Although it is uncertain at this time whether Mr. Mack is eligible for a defence of not criminally responsible, should his criminal matter proceed to trial and/or disposition, the information contained in the Gladue Report may prove helpful to the participants.
Analysis and Conclusions – Was there a Reportable Restriction of Mr. Mack’s Liberty?
Lastly, there is the matter of whether Mr. Mack’s seclusion from June 22, 2025, until August 21, 2025, constituted a reportable increase in the significant restrictions on his liberty as required by sections 672.56(2) of the Criminal Code.
In this regard, the obligation to provide notice to the Board of a significant increase in the restrictions on an accused’s liberty is one that emanates from the delegation of the Board’s authority by the Board to the person in charge of the hospital authority. Prior to a disposition being made pursuant to s. 672.54 of the Criminal Code, authority over the liberty interests of the accused belongs to the court and not the Board. Section 672.46 of the Criminal Code provides as follows:
Status quo pending Review Board hearing
672.46 (1) If the court does not make a disposition in respect of the accused at a disposition hearing, any order for the detention of the accused or any release order, appearance notice, summons or undertaking in respect of the accused that is in force at the time the verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered continues in force, subject to its terms, until the Review Board makes a disposition
Variation
(2) Despite subsection (1), a court may, pending a disposition by the Review Board in respect of the accused, on cause being shown, vacate the detention order, release order, appearance notice, summons or undertaking referred to in that subsection, and make any other order for the detention of the accused or any other release order that the court considers to be appropriate in the circumstances, including an order directing that the accused be detained in custody in a hospital.
Simply put, until such time as a disposition has been made by the Board at an initial hearing, there is no jurisdiction in the Board to review the exercise of discretion by a person acting pursuant to the Board’s delegated authority because there has not as yet been a delegation of that authority (a) to the Board by the court and (b) by the Board to the person in charge of the hospital authority. Therefore, the ROL notice provisions, and corresponding hearing requirements do not apply to Mr. Mack’s seclusion.
While Mr. Mack’s seclusion was not a restriction on his liberty made pursuant to any authority delegated to hospital personnel, it was however appropriate for the Hospital to notify the Board of his circumstances as it did in its correspondence dated August 22, 2025. Although there was no reviewable restriction of Mr. Mack’s liberty, it is important that the Board be kept apprised of the well-being of persons who may be committed to its jurisdiction, particularly those such as Mr. Mack who have been found unfit to stand trial and have not yet had the opportunity to have their day in court. The kind of “responsible notice” exercised by the Hospital in this case is to be commended and encouraged, if for no other reason that it could, in appropriate circumstances, have allowed the Board to expedite Mr. Mack’s initial hearing.
Conclusion
- For the foregoing reasons, the Board is of the view that Mr. Mack is unfit to stand trial and that a detention disposition order is the least onerous and restrictive disposition that is necessary and appropriate in the circumstances. In making this disposition, the Board has considered the criteria set out in s. 672.54 of the Criminal Code, which are the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society, and the other needs of the accused.
DATED this 30th day of January 2026, at the City of Toronto, in the Toronto Region.
Ms. T. Mann Alternate Chairperson
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Office of the Registrar Ontario Review Board
Footnotes
- A case file synopsis dated April 23, 2024, on charges of failure to comply with release order – other than to attend court - contained within the hearing documents forming part of the record before the Board includes the following statement: “Mr. Mack has a significant history with police. MACK is flagged violent and has multiple Cautions including: 3 minimum police response, unpredictable behaviour and hates police. He has approximately 80-90 Niche occurrences with the Ontario Provincial Police where he as been carded as special interest, complainant, warned, other, accused, arrested, apprehended, charged, missing person, located spoken to, observed subject of complaint, and person in crisis.” The synopsis goes on to describe Mr. Mack’s history with police as including approximately 48 occurrences with Peel Police between 2013 – 2018, approximately 23 occurrences with York Regional Police between 2018 – 2025 and 28 occurrences with Toronto Police Service between 2015 – 2025. Mr. Mack is indeed a vulnerable individual with high needs who has had significant difficulty maintaining stability in the community.
- The HCR-20 v 3 is a tool which examines (a) lifetime/static (historical) factors related to future violence risk potential, (b) recent features of psychosocial adjustment relevant to violence risk prediction and management and (c) risk management items relevant to anticipated psychosocial adjustment potentially affecting future violence risk.