Re: Edward Harding, 2026 CanLII 9

Ontario Review Board

Re: Edward Harding

ORB File No: 8880

Hearing held on: Wednesday, December 3, 2025

Place of Hearing: St. Joseph’s Healthcare Hamilton, West 5th Campus

Pursuant to: Sections 672.47(1) and 672.48(1) of the Criminal Code

Before: Alternate Chairperson: Ms. L. Banks Members: Dr. M. Attia Dr. P N. Wright Mr. E. Siebenmorgen Mr. A. Mete

Parties Appearing: Accused: Edward Harding Counsel: Mr. C. Hynes

The Person in charge of Hospital: Counsel: Ms. L. Barney

Attorney General of Ontario: Counsel: Ms. C. Gzik

REASONS FOR DISPOSITION (Dated January 2, 2026)

Introduction

1On October 10, 2025, Edward Harding, now 49 years of age, was found unfit to stand trial in relation to the following five groups of Criminal Code charges, all alleged to have been committed in Toronto:

(i) Unlawful entry and mischief to property (offence date August 31, 2024);

(ii) Theft under, uttering threats, obstruct peace officer (offence date October 14, 2024);

(iii) Failure to attend court (offence date May 2, 2025);

(iv) Theft under, assault (offence date July 7, 2025); and

(v) Theft under, uttering threats (offence date July 19, 2025)

2The court made no Disposition and issued a Warrant of Committal directing Mr. Harding’s detention at CAMH (the Centre for Addiction and Mental Health) or St. Joseph’s Healthcare Hamilton (“SJHH” or “the Hospital”) or “any other forensic Hospital in the Province of Ontario”.

3On Wednesday, December 3, 2025, a panel of the Board convened in person at the Hospital to inquire into Mr. Harding’s current condition and to determine: (a) whether Mr. Harding is fit to stand trial; (b), if he is fit, whether the Board should order his continued detention in the Hospital pending his return to court; and (c) if Mr. Harding is unfit, the necessary and appropriate Disposition that is also the least onerous and least restrictive, having regard to the factors in s. 672.54 of the Criminal Code. Mr. Harding was present and represented by his counsel, Mr. Hynes.

4The Record for the hearing included, in addition to the Revised Notice of Hearing, the following documents:

• the Warrant of Committal dated October 10, 2025;
• the Informations charging the various offences;
• the criminal record for Mr. Harding;
• a bail package, which included various release documents and synopses;
• the fitness to stand trial assessment report, dated October 9, 2025;
• a letter from the Hospital dated October 22, 2025, requesting Mr. Harding’s transfer to CAMH; and
• a response letter from CAMH, dated October 31, 2025.

5The evidence at the hearing consisted of the Hospital Report, dated November 21, 2025, and the oral evidence of Dr. J. Ferencz, who had been Mr. Harding’s attending psychiatrist since the latter’s arrival at the Hospital’s Assessment Unit (Mountain 2) pursuant to a treatment order dated August 13, 2025.

Positions of the Parties

6At the start of the hearing, counsel for the Hospital, supported by counsel for the Attorney General, took the position that Mr. Harding is on the “borderline” of fitness but currently remained unfit to stand trial. Both parties took the position that if the Board found him to be fit to stand trial, Mr. Harding should be ordered returned to court and kept in the custody of the Hospital pending his return. If the Board found him unfit, they recommended a Detention Order on terms contained in the Hospital Report.

7Counsel for Mr. Harding took the position that his client was fit to stand trial and should be ordered returned to court.

8At the conclusion of the evidence, counsel for the Hospital submitted that Mr. Harding was unfit to stand trial but was very close to being fit. He required more time and treatment to be able to meaningfully participate in a trial. Counsel for the Attorney General agreed, stating that Mr. Harding has only a rudimentary understanding of the nature and object of the proceedings.

9Mr. Harding’s counsel asked the Board to find his client fit to stand trial. He advised that Mr. Harding wishes to have his trial and stated that he was able to get his instructions for the hearing before the Board. He acknowledged that this was a close case.

Findings

10For the following Reasons, the panel concluded that while Mr. Harding had made significant improvements and strides in his treatment, he remains unfit to stand trial. The panel accordingly was required to fashion a Disposition and found that the necessary and appropriate Disposition is a Detention Order that directed Mr. Harding’s transfer to CAMH, with residual authority to detain him at SJHH pending his transfer. The specific terms and conditions of the Detention Order are listed at the conclusion of these Reasons.

The Index Offences

11The allegations surrounding the index offences are found in the synopses that form part of the Record for the hearing, which have been reproduced at pp. 2-4 of the Hospital Report. As the Hospital Report is in evidence, and since the allegations remain unproven, it is not necessary to reproduce them in these Reasons. In very general terms, the allegations include:

• an unlawful entry into an apartment belonging to a man and his young daughter, who discovered Mr. Harding asleep on their living room couch (the man chased Mr. Harding out of the apartment);
• an incident of shoplifting followed by a threat to kill a store employee who recorded Mr. Harding on her phone’s camera, and then the provision of a false name and birthdate to police;
• a second shoplifting incident that included an assault of a store employee who intervened; Mr. Harding had also missed a court appearance in respect of the earlier charges; and
• two further incidents of shoplifting, and a threat to harm an intervening store employee.

Background Information

12Mr. Harding’s family, personal and social history was provided by his mother (his father passed away in 2008) and is summarized in the Hospital Report. As the Report is in evidence, only those portions of this history that provide necessary context for the issues at the hearing are highlighted below.

13Mr. Harding is the youngest of four children in his family. He is incapable of making treatment decisions, and his mother is his substitute decision maker (SDM). He is also financially incapable, and the Public Guardian and Trustee (PGT) is his SDM for financial matters. His current diagnoses are:

• schizophrenia; and
• cannabis use disorder (in remission in a controlled environment).

14Mr. Harding has been in one intimate relationship and has a daughter from that relationship. He resided with his former partner and her daughter in Hamilton for a time but had not had contact with them for some months at the time of his fitness assessment.

15At a young age, Mr. Harding displayed concerning behaviours and then developed more complex psychiatric issues in early adolescence. Beginning with bizarre behaviours and demonstrated confusion and concentration difficulties at age 14, he experienced acute psychotic episodes that eventually resulted in multiple presentations to Emergency Departments. His first psychiatric admission was at the age of 16 at The Hospital for Sick Children. At some point, due to his disruptive behaviours and physical and verbal aggression toward his mother and her partner during episodes of psychiatric decompensation, Mr. Harding could no longer be safely managed in his mother’s home. She assisted him in obtaining a room in boarding houses and group homes; however, these accommodations were unsuccessful due to Mr. Harding's disruptive behaviours, resulting in conflict with roommates and subsequent evictions, and at times, homelessness.

16The Hospital Report states that Mr. Harding has a long-standing history of cannabis use, noting that he historically reported smoking two to three marijuana joints per day. His mother reported that Mr. Harding has previously had difficulties with alcohol, describing episodes of “heavy drinking”.

17Prior to the index charges, Mr. Harding had a criminal record consisting of 10 convictions (three for assault-related offences) that commenced in 2009 and continued to 2018.

18Mr. Harding’s very extensive psychiatric history includes 34 inpatient admissions from 1992 to 2024. The notes of his inpatient admissions occupy some 13 pages of the Hospital Report (pp. 7-20). In addition, he has a significant history of attempts by outpatient service providers to treat him, including ACT (Assertive Community Treatment) teams and Community Treatment Orders (CTOs). Mr. Harding has also often been well-supported by his family, with his mother frequently acting as his SDM for treatment decisions. While in hospital, he was often acutely ill, demonstrating agitation, aggression and threatened violence toward hospital staff, and occasional sexual advances. On one occasion in 2022, he was hospitalized after wielding a knife and threatening ACT team staff. While in hospital, he often required physical and/or chemical restraints, and occasionally the assistance of police. He was sometimes placed in seclusion and has a history of successful and attempted elopements.

19Mr. Harding is noted in the Hospital Report to have displayed similar behaviours to those mentioned above during the early portion of his admission to the SJHH Assessment Unit.

20A more detailed summary of Mr. Harding’s lengthy psychiatric history is unnecessary for the purpose of these Reasons. In sum, the panel would adopt the following introduction to Mr. Harding’s psychiatric history, taken from the Hospital Report:

Due to a lack of insight into his mental health, Mr. Harding has experienced a cyclical pattern of psychiatric instability leading to hospitalization, medication reinitiation, acute stabilization, discharge or abscondment, non-adherence to prescribed medications, and subsequent psychiatric decompensation. Furthermore, his illness has at times been further complicated by his use of drugs and alcohol.

21In more recent years, Mr. Harding was connected to high-level supportive housing through community services, wherein he also received counselling, financial management, and his psychiatric care has been under supervision of different (ACT) teams. However, his history of “disappearing” from his apartment for significant periods of time, in addition to concerns from his ACT team around his hygiene and ability to function independently, resulted in the loss of housing, leaving Mr. Harding in a state of chronic homelessness.

22Mr. Harding has longstanding ties to the Toronto area and all of his psychiatric care over the nine years prior to his admission to SJHH has been provided by Toronto-area hospitals and associated ACT teams, with the last three years of Mr. Harding’s healthcare being provided exclusively by CAMH. He has shared an intention to stay in the Toronto area, specifically in the downtown west neighbourhood.

23Mr. Harding’s only personal support is his mother who lives in Newmarket. She has advised that travelling to Hamilton would be very difficult given that she relies on public transit. From her experience, CAMH is readily accessible. From her previous role as her son’s SDM, Ms. Harding is familiar with the care provided by CAMH and has described a very good relationship with their care teams. She has confirmed her willingness to continue serving as substitute decision maker for treatment decisions.

Testimony of Dr. Ferencz at the Hearing

24Dr. Ferencz testified that Mr. Harding’s mental status has improved gradually, but significantly, during his admission. He has a treatment-resistant form of schizophrenia and is now doing better than the doctor expected. Referring to Mr. Harding’s extensive mental health background, Dr. Ferencz stated that when he was first admitted to the Hospital, he was “as ill as anyone I’ve ever seen”. He confirmed that Mr. Harding is on a very unusual combination of medications; yet is experiencing no side effects, despite being treated with very high doses of a variety of medications. Dr. Ferencz would like to see him taking clozapine, but Mr. Harding has thus far declined it.

25In answer to questions from Mr. Harding’s counsel, Dr. Ferencz testifies that Mr. Harding’s current predominant psychotic feature is his thought disorder. He still demonstrates a degree of delusional thinking, though this is now more subtle. His hallucinations are still there, though he is now not inclined to share them as much.

26Dr. Ferencz testified that he most recently assessed Mr. Harding’s fitness to stand trial on the day prior to the hearing. In his opinion, Mr. Harding remains unfit to stand trial. His mental status was much improved over earlier fitness assessments, but his speech and thoughts are still disorganized, he requires significant redirection to “stay on track”, and he continues to respond to internal stimuli. Dr. Ferencz said that he and Mr. Harding were able to have a “reasonable” conversation. It is only recently that Mr. Harding could have any conversation at all about his charges and Dr. Ferencz is just getting to the stage of being able to do fitness coaching.

27Historically, one of Mr. Harding’s major barriers from a fitness to stand trial perspective was his inability to understand the nature and object of the proceedings, evidenced by a failure to comprehend that he was even charged with criminal offences. This has changed, in that on the day prior to the hearing, Dr. Ferencz presented him with a written list containing all the charges and he was able to accept it, acknowledging that he has been charged with offences. He remained perplexed by some of the charges. In terms of Mr. Harding’s ability to spontaneously come up with an understanding of his charges, Dr. Ferencz stated that this was “next to impossible”. He did, however, acknowledge that this could well be a memory issue, in that Mr. Harding may not actually remember the offences.

28Dr. Ferencz testified that Mr. Harding knows his plea options and believed that Mr. Harding could understand the consequences of being found guilty as well as the consequences of a “not guilty” plea. In response to questions from the panel, Dr. Ferencz agreed that Mr. Harding is capable of making reality-based decisions about:

• whether to be represented by a lawyer or represent himself; and
• whether to plead guilty and admit the accusations against him, or to plead not guilty and have a trial.

29However, in terms of making a reality-based decision as to whether to testify or call witnesses on his behalf at a trial, including a capacity to consider his lawyer’s advice in this regard, Mr. Harding is not “quite” at that point yet. The doctor also noted that Mr. Harding does not yet have the capacity to understand that the court process is an adversarial one.

30Mr. Harding was able to provide answers to many of the standard questions. While he was unfamiliar with the term “perjury”, he understood his obligation to tell the truth in court and that there are legal consequences for lying. He knew that the responsibility of defence counsel was to know the case against him. While he could not give a clear explanation of the role of Crown counsel, he was able to articulate that this individual put the case together. He also understood that ultimate decisions were to be made by the judge. However, in terms of having a capacity for a basic understanding of the adversarial roles of Crown and defence counsel, Dr. Ferencz said that Mr. Harding is “not there yet”.

31Asked whether Mr. Harding can communicate with counsel and provide direction, Dr. Ferencz replied, “Yes, with guidance”, explaining that Mr. Harding can be directed back to the point at hand. He has a primary issue with his dysregulation and severe thought disorganization, however. There has been gradual improvement in this area. Remarking upon Mr. Harding’s history, Dr. Ferencz said that his pattern has been a gradual improvement in his mental status, which then reaches a plateau. Dr. Ferencz’ recommendation is to try to get Mr. Harding to that plateau.

32As for Mr. Harding’s ability to follow the evidence at a trial, Dr. Ferencz said that he could do so, with great difficulty. This ability is impaired by his mental illness, though he could be directed to sit and listen. It is hard for Mr. Harding to stick to a thought without being distracted, particularly by internal stimuli. He would need regular inquiries (“check-ins”) to determine whether he truly understands what is going on. Dr. Ferencz expected that with more treatment and time, Mr. Harding would be able to do this well.

33In response to a panel member’s question, Dr. Ferencz recommended, in the event of a decision by the Board that Mr. Harding was fit to stand trial, that the Board make what is colloquially known as a “keep fit” order by directing his continued detention in the Hospital until he is returned to court. In Dr. Ferencz’ opinion, Mr. Harding would “absolutely” refuse treatment if he were to be detained in correctional custody and would rapidly deteriorate, again becoming unfit to stand trial.

34Dr. Ferencz discussed the Hospital’s recommendation that Mr. Harding be transferred to CAMH. He noted that Mr. Harding has a history with that institution, having recently spent two consecutive periods, each lasting approximately a year, at that hospital. Dr. Ferencz stated that Mr. Harding is very familiar with Toronto, and all of his connections are there. He also reminded the panel that Mr. Harding’s mother lives in Newmarket, as noted in the Hospital Report.

35No further evidence was led following Dr. Ferencz’ testimony.

Analysis and Conclusions

Fitness to Stand Trial

36The panel agrees with the comments of counsel, all of whom essentially agreed that this was a close case in relation to Mr. Harding’s fitness to stand trial. Mr. Harding’s mental status has improved significantly from the time when he was initially found unfit and was made the subject of a treatment order. This improvement in his mental status has been evident in not only his behaviour on his unit, but also in the progress that Dr. Ferencz has noted in Mr. Harding’s capacity to conduct a defence to his criminal charges. However, while the evidence points to several areas that are indicative of this capacity, the panel is not of the opinion that Mr. Harding is yet fit to stand trial. It is nevertheless anticipated that with further time, education and response to psychiatric treatment, he will become fit to stand trial in the foreseeable future.

37Mr. Harding has severe treatment resistant symptoms of schizophrenia. Those symptoms include, in particular, thought disorder, ongoing hallucinations, and delusional thinking. We accept Dr. Ferencz’ evidence and find that those symptoms currently prevent Mr. Harding from being capable of being meaningfully present at his court proceedings to a degree that is sufficient to enable him to make reality-based decisions about his defence, and in particular the ability to follow the proceedings so that he can receive and consider advice from counsel as to whether he should testify or otherwise lead evidence in his defence.

38Mr. Harding appears to have some comprehension of the nature and object of the proceedings, as evidenced by his ability to now understand that he is in fact charged with criminal offences, as distinct from the previous offences for which he is convicted. There remains some question as to whether his responses to assessment questions concerning his charges are related to memory loss is [which would not prevent him from being fit to stand trial; see R. v. Morrissey 2007 ONCA 770, 87 O.R. (3rd) 481)]. The panel would encourage Mr. Harding’s treatment team to continue its consideration of this issue.

39Mr. Harding also appears to be capable of making reality-based decisions as to whether to retain counsel and how to plead to his charges, subject to the previously expressed concern about his genuine understanding of the nature of the proceedings against him. He has some capacity to follow the advice of counsel in this regard, assuming that he can be properly redirected during an interview and overcome his distractibility caused by his hallucinations.

40However, the panel is not of the opinion, on the evidence before us, that Mr. Harding is yet at a point where he can meaningfully be present at and engage with the process while he is at court, even with the assistance of counsel and frequent breaks in the proceedings. He requires a certain minimal level of capacity to focus and concentrate on the proceedings, and on Dr. Ferencz’ evidence, Mr. Harding’s current symptoms prevent him from possessing that capacity.

41Mr. Harding therefore remains unfit to stand trial, though the panel expects that his condition will continue to improve so that he will become fit in the foreseeable future.

42Before leaving this issue, the panel wishes to comment briefly on a matter that arose during the evidence and submissions. During his testimony, Dr. Ferencz advanced the opinion that if one were to apply the “Taylor test”¹, Mr. Harding would be fit to stand trial, but not on an application of the definition of “unfit to stand trial” as explained by the Supreme Court of Canada in R. v. Bharwani, 2025 SCC 26. Dr. Ferencz elaborated upon this opinion and expressed the view that the Supreme Court had “raised the bar” with respect to fitness. During submissions, counsel for Mr. Harding reminded the panel that a psychiatrist’s medical expertise does not extend to providing opinions on the interpretation of jurisprudence.

43To be clear, the panel’s conclusion that Mr. Harding remains unfit to stand trial does not require us to offer an opinion as to whether the Supreme Court has in some way altered the fitness threshold, and we decline to do so.

The Necessary and Appropriate Disposition

44The panel had no difficulty in finding on the evidence that a Detention Order is necessary and appropriate. Indeed, no party suggested otherwise.

45In this regard, the panel accepts the following statement in the Clinical Risk Summary as a fair description of Mr. Harding’s history and recent clinical course:

Mr. Harding has a lengthy history of treatment resistant schizophrenia and cannabis use. He has been nonadherent to treatment for extended periods which has resulted in a profound level of psychosocial dysfunction. He has a history of cannabis use and nonadherence to psychiatric treatment which has resulted in several lengthy psychiatric hospitalizations. Mr. Harding has been aggressive with staff members on several occasions during the current hospitalization. He also has a history of assaults in the community. He expresses a strong reluctance to take psychiatric treatment and his current medications are given compulsorily on the basis of substitute consent from his mother.

46Dr. Ferencz was clear in his evidence that Mr. Harding would “absolutely” refuse psychiatric treatment if he were outside of hospital. The panel accepts this evidence, which is entirely consistent with Mr. Harding’s lengthy and persistent history of nonadherence to psychiatric treatment. While Mr. Harding has made significant gains as an inpatient in recent months, he is not ready to live in the community at this time. That being said, it is realistic to expect that, if his condition continues to improve, he can safely enjoy accompanied access to the community within the next reporting period unless he first becomes fit to stand trial.

47The panel accepts that Mr. Harding should be transferred to the Forensic Service at CAMH. He has longstanding ties to the Toronto community and CAMH has provided his healthcare for the three years preceding his admission to SJHH in the summer of 2025. Of significance is the evidence that CAMH is geographically more accessible than SJHH to Mr. Harding’s mother, who has for years been her son’s main (if not only) personal support.

48Accordingly, the panel made a Detention Order Disposition that directed Mr. Harding’s detention at the Forensic Service at CAMH (with residual authority to SJHH to detain him on the same terms pending the transfer) on the following terms and conditions:

(a) to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes;

(b) hospital and grounds privileges, escorted by staff;

(c) hospital and grounds privileges, accompanied by staff or a person approved by the person in charge;

(d) hospital and grounds privileges, indirectly supervised;

(e) to enter the community, escorted by staff; and

(f) to enter the community, accompanied by staff or a person approved by the person in charge.

Mr. Harding is required to:

(a) abstain absolutely from the non-medical use of alcohol or drugs or any other intoxicant;

(b) submit samples of his urine and/or breath to the person in charge of the Centre for Addiction and Mental Health, Toronto, or their designate for the purpose of analyzing whether he has ingested alcohol, drugs or any other intoxicant; and

(c) 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.

49In approaching this matter, the panel has considered the evidence through the lens of the factors in s. 672.54 of the Criminal Code.

Footnotes

1. 1R. v. Taylor (1992), 1992 CanLII 7412 (ON CA), 11 O.R. (3rd) 323 (C.A.).