Court File and Parties

Court File No.: CR-22-30000584-0000 Date: 2025-10-02 Ontario Superior Court of Justice

Between: His Majesty the King – Applicant and Athuma Fred Ochelebe – Respondent

Before: Schreck J.

Counsel:

B. Snow, for the applicant
I. Donnell and M. Lipchitz, for the respondent

Heard: August 27, 2025

Reasons for Decision

Crown Application for a "High Risk Accused" Designation Pursuant to s. 672.64(1) of the Criminal Code

I. EVIDENCE

A. The Index Offences

(i) Robbery

[8] At about 7:00 p.m. on January 14, 2021, Vita Salvaggio was sitting in his car in the driveway of his home preparing to leave when he was approached by Mr. Ochelebe, who demanded that Mr. Salvaggio give him the vehicle. He then headbutted Mr. Salvaggio and pulled him out of the car. A struggle ensued between them during which Mr. Ochelebe repeatedly accused Mr. Salvaggio of being a police officer (which he was not). Mr. Ochelebe then got into the car and drove away at a high rate of speed.

(ii) Attempted Break and Enter

[9] About two hours later at 8:55 p.m., Armando De Luca was at home with his wife, Lena De Luca, when he heard a knock at the front door. He opened the door to find Mr. Ochelebe, whom he did know. Mr. Ochelebe told Mr. De Luca that he wanted to sell him a CD. Mr. De Luca replied that he was not interested and closed the door.

[10] A few minutes later, Mr. Ochelebe began smashing the front door with a piece of wood. He broke a window in the door and attempted to reach in to unlock it from the inside while holding a knife. Mr. De Luca grabbed a golf club and used it to try to push Mr. Ochelebe away while also trying to hold the door closed. Mr. De Luca asked Mr. Ochelebe what he wanted, to which he replied, "Freedom." While this was ongoing, Mrs. De Luca called 911 and also called a neighbour, Glen Tarver.

(iii) Aggravated Assault (Two Counts)

[11] Mr. De Luca opened the front door to confront Mr. Ochelebe, who grabbed the golf club from him and then ran away. By this time, Mr. Tarver had arrived to assist his neighbours and was attacked by Mr. Ochelebe, who struck him in the head with the golf club several times and also stabbed him repeatedly with the knife. Mr. De Luca attempted to intervene, but was also struck in the head with the golf club and stabbed three times in the arm.

(iv) The Arrest

[12] The police arrived while Mr. Ochelebe was assaulting Mr. De Luca and intervened, at which point Mr. Ochelebe suddenly laid down on the front of the police car and went limp. He then suddenly got up and headbutted one of the officers. The officers managed to take control of Mr. Ochelebe and placed him in the back of the police car. At this point, Mr. Ochelebe became agitated and began to scream that the police were going to murder him, drink his blood and burn his house. He screamed about "Rothschild" and asked, "Am I the black mirror?" Mr. Ochelebe alternated between screaming, singing and mumbling to himself.

[13] Upon arriving at the police station, Mr. Ochelebe continued to make strange statements. He identified himself as "Rothschild," stated that people wanted to kill him, directed slurs at the police officers, and at one point sang "Baa Baa Black Sheep."

B. Victim Injuries and Impact

[14] Mr. Tarver was stabbed in the abdomen and suffered a collapsed lung, as well as lacerations to his abdomen, neck and head which required stitches. He had to undergo emergency surgery as a result of his injuries and was hospitalized for over a week, followed by several months of rehabilitation. He also had a broken tooth which later required dental surgery.

[15] Mr. De Luca suffered cuts and swelling to his face, three stab wounds to his arm which required stitches, a fractured skull and ribs, and other injuries. He spent a week in the hospital and underwent ongoing medical treatment afterwards from a variety of specialists. He has ongoing headaches, vision problems and concussive symptoms.

[16] Mr. De Luca, Mrs. De Luca and Mr. Tarver all prepared Victim Impact Statements ("VIS"). In addition to the significant physical injuries suffered by Mr. Tarver and Mr. De Luca, all three suffered significant psychological damage. Mr. Tarver experiences nightmares, stress and heightened safety concerns. Mr. De Luca suffers from anxiety, post-traumatic stress disorder ("PTSD"), difficulty sleeping, hypervigilance and other symptoms and has had to undergo psychotherapy. Mrs. De Luca also has PTSD, anxiety, depression, panic attacks and has had to undergo treatment by several therapists and other health professionals.

C. History of the Proceedings

[17] Following his arrest on January 14, 2021, Mr. Ochelebe was released on bail on April 8, 2021. His bail was revoked on July 4, 2023 in circumstances that are described below.

[18] Mr. Ochelebe pleaded guilty to the charges on September 28, 2023. Although a report had been prepared by a forensic psychiatrist, Dr. Andrew Wang, on March 23, 2023 indicating that in his view, Mr. Ochelebe may be NCR, neither the Crown nor the defence raised the issue. The matter was adjourned to October 10, 2023 to schedule a sentencing hearing.

[19] A sentencing hearing was scheduled for February 5, 2024. On that date, Mr. Ochelebe advised the court that he had discharged his counsel and was in the process of retaining new counsel. The matter was accordingly adjourned.

[20] On May 6, 2024, Mr. Ochelebe's new counsel advised the court that he was seeking an order pursuant to s. 672.11(b) of the Criminal Code for a new psychiatric assessment, to which the Crown consented. An order was made on May 16, 2024 for an assessment to be conducted by another forensic psychiatrist, Dr. Lily Van. Dr. Van completed her report on November 15, 2024. A hearing to determine whether Mr. Ochelebe was NCR was scheduled for March 31, 2025.

[21] Prior to the NCR hearing, the Crown filed a Notice of Application to have Mr. Ochelebe designated as an HRA if he was found to be NCR. The NCR hearing proceeded on March 31, 2025. After hearing the testimony of Dr. Van, the Crown did not oppose Mr. Ochelebe being found NCR and the finding was made. At the request of the parties, I made an order pursuant to s. 672.11(d) of the Criminal Code for an updated assessment by Dr. Van.

[22] On April 14, 2025, I signed a Warrant of Committal pursuant to s. 672.46(2) of the Criminal Code vacating the detention order made at the time Mr. Ochelebe's bail was revoked and making a new order that he be detained at the Centre for Addiction and Mental Health ("CAMH"). I was advised that because of an unavailability of beds, Mr. Ochelebe was not transferred to CAMH until June 23, 2025.

[23] Dr. Van completed her second report, the contents of which are described later in these reasons, on July 24, 2025. The hearing of the Crown's HRA application was scheduled for and took place on August 27, 2025, at the conclusion of which judgment was reserved.

D. Mr. Ochelebe's History

(i) Family and Childhood

[24] Mr. Ochelebe was born and raised in Toronto and is of Nigerian and South African origin. He is Black. His mother is a nurse and his father worked as a publisher and had an Internet café business. He has one younger brother. Mr. Ochelebe described his childhood as "good." His parents appeared to have an uneventful relationship. However, when Mr. Ochelebe was in high school, his father went to live in Africa for a few years. A year after he returned to Canada, he and Mr. Ochelebe's mother separated. Mr. Ochelebe continues to have a good relationship with both parents.

[25] Although he has been in two long-term relationships, Mr. Ochelebe never co-habited with a partner, is currently single and has no children.

(ii) Education and Employment

[26] Mr. Ochelebe had decent grades in school. He occasionally became involved in fights with other students, which he attributed to having been bullied by them and having racist slurs directed at him. He went through a period of skipping classes when he was 15 or 16 years old, but later began to focus on his education and graduated from high school. He attended college after high school, but did not do well and soon dropped out. Mr. Ochelebe has a fairly extensive employment history from the age of 15 and has worked in a variety of jobs.

(iii) Criminal Record

[27] Mr. Ochelebe has one prior conviction for theft under $5000 from 2018 for which he received a suspended sentence and was placed on probation for three years. Mr. Ochelebe was 18 years old at the time and had been charged with robbery but pleaded guilty to the lesser and included offence with the consent of the Crown. The plea was based on the following facts that were read into the record at the time of his plea:

… [T]he victim in this matter … had returned from a trip to Florida, had purchased some Cuban cigars, had put them up for sale. There was an inquiry made by the accused before the court. He subsequently met him and another male. There was a – a struggle ensued, and the cigars were taken from him. An assault took place on July 10, 2018.

Mr. Ochelebe told Dr. Van that he had brandished a folding knife at the time the victim was assaulted and the cigars were stolen.

(iv) Drug Use

[28] When he was 15 years old, Mr. Ochelebe began using cannabis and gradually increased his use to the point that he used it every other day. At some points, he would consume 14 grams over a two or three-day period. He attempted to stop using it, but found that doing so made him irritable.

[29] Mr. Ochelebe used psilocybin ("magic mushrooms") on four occasions. He reported that this gave him "bad thoughts" about hurting others and made him feel paranoid.

(v) Mental Illness

(a) September 2020: First Symptoms

[30] In September 2020, Mr. Ochelebe began to experience auditory hallucinations after using psilocybin. He reported that a voice told him not to trust the roommate he was living with at the time and to stab him. It appears that he did not seek any medical treatment at the time. He continued to experience these symptoms throughout the rest of 2020 and into 2021. At some point, he moved back home to live with his mother and brother.

(b) January 2021: The Index Offences

[31] On the day of the index offences, Mr. Ochelebe visited his former roommate and consumed a significant amount of marijuana (seven grams) and psilocybin with him. He and the former roommate argued and Mr. Ochelebe experienced voices telling him to stab the former roommate. He left and went home, where he watched television and experienced feelings of paranoia.

[32] Later that day, Mr. Ochelebe visited his father, who told him that he was not "acting like himself." His father advised him to get some sleep. Mr. Ochelebe spent some time pretending to sleep, but then left his father's house. Before he did so, he took a knife from the kitchen, but reported that he did not know why he did so.

[33] After leaving his father's home, Mr. Ochelebe stole Mr. Salvaggio's car. When asked by Dr. Van why he did so, he said, "I guess I felt paranoid, you have to get this, I don't know." He did not recall assaulting Mr. Salvaggio.

[34] Mr. Ochelebe drove Mr. Salvaggio's car until it ran out of gas, but did not have any particular destination. He reported being unsure why he knocked on the De Lucas' door and did not know where he got the CD. When asked by Dr. Van why he stabbed the victims, Mr. Ochelebe said, "I don't know, I had voices in my head tell me to get them before they get me." He reported that there were two voices, both male, and that they were the same voices that had told him to stab his roommate.

(c) January 2021: Following Arrest

[35] After his arrest, Mr. Ochelebe was detained at the Toronto East Detention Centre ("TEDC"). While there, he was observed to be behaving violently and aggressively and seemed to have bizarre beliefs, including that people had been putting cocaine in his food and watching him. He did push ups on the floor of his cell after urinating on it. The TEDC staff decided to take him to a hospital in Scarborough, where he was admitted on January 20, 2021.

[36] Upon being examined at the hospital, Mr. Ochelebe was noted to be disorganized, apparently responding to internal stimuli, and reporting auditory hallucinations. He exhibited paranoid and delusional thoughts. He was treated with a prescription for 20 mg of olanzapine, an anti-psychotic, and began to gradually improve until he was discharged on January 29, 2021. Mr. Ochelebe reported using cannabis prior to this episode and on discharge was diagnosed with cannabis use disorder and cannabis-induced psychosis.

(d) April – June 2021: Release on Bail

[37] Mr. Ochelebe was released on bail on April 8, 2021. His conditions required him to reside with his mother and be subject to electronic monitoring. He was also required not to possess or consume "any unlawful drugs or substances (refer to CDSA [Controlled Drugs and Substances Act]) except with a valid prescription in your name."

[38] Following his release, Mr. Ochelebe was seen at the Mental Health Program Adult Outpatient Services of McKenzie Health where it was noted that he was continuing treatment with 20 mg of olanzapine and remaining stable without side effects. He completed an addiction counselling program in relation to his cannabis use. However, he began to use cannabis again after three to five months, but did so without his mother's knowledge.

(e) June 2021 – February 2022: Discontinuation of Medication

[39] On June 2, 2021, Mr. Ochelebe was assessed by a psychiatrist, Dr. J. Eisen, over the telephone after he indicated that he wished to reduce his medication. Dr. Eisen noted him to be "organized and lucid" and recommended discontinuation of olanzapine and a follow-up appointment in two to four weeks. Based on that recommendation, Mr. Ochelebe stopped taking olanzapine. He reported being symptom-free and abstaining from cannabis during a phone call with staff of the Mental Health Program on July 5, 2021 as well as during meetings with medical professionals in relation to unrelated issues throughout 2021.

(f) February – July 2022: Recurrence of Symptoms

[40] In the early morning hours of February 9, 2022, Mr. Ochelebe woke up vomiting and told his mother that "someone is trying to mess me up." He was taken by ambulance to the hospital, where he was noted to have disorganized thinking and appeared to be responding to internal stimuli. A psychiatrist who examined him recommended that he resume treatment with 10 mg of olanzapine and avoid consuming cannabis. Mr. Ochelebe's mother indicated that she would ensure that the recommendations were followed and Mr. Ochelebe was discharged.

[41] Mr. Ochelebe did not take olanzapine consistently and would take it "on and off" because he felt that the dose was too strong and also because he felt that he did not need it. His mother would encourage him to take it when he reported hearing voices and sometimes hid it in his food.

(g) December 2022 – March 2023: Assessment by Dr. Wang

[42] Beginning in December 2022, Mr. Ochelebe underwent a criminal responsibility assessment in relation to the index offences conducted by Dr. Andrew Wang, a forensic psychiatrist. During an interview on December 29, 2022, Dr. Wang noted that Mr. Ochelebe's speech and thought process appeared to be slow and that he often smiled inexplicably or inappropriately. Mr. Ochelebe denied experiencing internal stimuli or delusional thoughts. However, there appeared to be "fairly significant thought blocking" and Mr. Ochelebe appeared to have a limited recollection of the index offences and limited insight. Dr. Wang noted some improvement at a subsequent interview on February 27, 2023, but Mr. Ochelebe continued to have a limited and impaired recollection of the index offences. Mr. Ochelebe was not taking olanzapine regularly at the time of Dr. Wang's assessment.

[43] In a report dated March 20, 2023, Dr. Wang diagnosed Mr. Ochelebe with schizophrenia. It was his opinion that "strictly on a balance of probabilities and from a psychiatric perspective, Mr. Ochelebe may have a defence of Not Criminally Responsible available to him for the charges he is currently facing."

(h) July 2023 – Revocation of Bail

[44] On July 4, 2023, Mr. Ochelebe was arrested in relation to an alleged home invasion. According to an "Initial Officer Report," he had entered the home of a man he knew from high school while armed with a knife and demanded to see the man's brother. According to the man, Mr. Ochelebe "appeared to be on drugs." He chased the man into his bedroom and then attempted to break the door down before fleeing. The charges in relation to this alleged incident were later stayed.

[45] Mr. Ochelebe's bail was revoked as a result of the new charges and he was detained at the Central East Correctional Centre ("CECC"). When assessed, he denied having any hallucinations, although his speech seemed slow and there was some indication of paranoid behaviour. He was prescribed 5 mg of olanzapine.

[46] Mr. Ochelebe continued to be prescribed 5 mg of olanzapine by medical staff at the CECC and the TEDC, where he was transferred in February 2024. There were no reports of psychotic symptoms during this period.

(i) June 2025 – Present: CAMH

[47] On June 23, 2025, Mr. Ochelebe was admitted to the Centre for Addiction and Mental Health ("CAMH") following the NCR finding. He continued to be treated with 5 mg of olanzapine with good results.

E. Custodial Misconduct

(i) April 24, 2024: Group Assault

[48] Mr. Ochelebe's institutional file from his time in custody reflects eight findings of misconduct between April 2024 and April 2025. The first was in relation to his alleged participation in a group assault on another inmate on April 24, 2024. He pleaded "not guilty" but was found guilty and received a penalty of four weeks of loss of canteen privileges and "7 days c/c" (the meaning of which is unclear). Mr. Ochelebe told Dr. Van that he was present at the time of the group assault but did not participate.

(ii) June 30, 2024: Unspecified Contraband

[49] On June 30, 2024, Mr. Ochelebe was allegedly one of several inmates who picked up unspecified "contraband" that had been thrown over the walls of the institution by an unknown person. He pleaded "not guilty" and was found guilty and received a penalty of a loss of canteen privileges for three weeks. Mr. Ochelebe told Dr. Van that he was present when the contraband was thrown over the wall and did not pick it up but that it was usual for everyone who was present to receive a misconduct in such circumstances.

(iii) July 16, 2024: Group Assault

[50] On July 16, 2024, Mr. Ochelebe was allegedly involved in another group assault on an inmate. He pleaded "not guilty" but was found guilty and received a penalty of loss of canteen privileges for two weeks. Mr. Ochelebe told Dr. Van that he had punched another inmate who had disrespected his mother.

(iv) July 28, 2024: Physical Altercation

[51] Mr. Ochelebe pleaded guilty to being involved in a physical altercation with other inmates on July 28, 2024 and lost canteen privileges for two weeks. He told Dr. Van that he had punched an inmate who had hit a person he knew.

(v) November 28, 2024: Physical Altercation

[52] Mr. Ochelebe also pleaded guilty to being involved in another physical altercation involving several inmates on November 28, 2024 and lost canteen privileges for two weeks. He did not provide any details to Dr. Van other than to tell her that "someone was just acting out of line and someone got punched in the face."

(vi) December 21, 2024: Group Assault

[53] Mr. Ochelebe was alleged to have been involved in a group assault on an inmate on December 21, 2024. He pleaded "not guilty" and was found guilty and received a verbal reprimand. Mr. Ochelebe told Dr. Van that he had hit an inmate who had hit someone else.

(vii) January 14, 2025: Unspecified Contraband

[54] On January 14, 2025, Mr. Ochelebe was one of several inmates who picked up unspecified "contraband" that had been thrown over the walls of the institution. He pleaded guilty and received a reprimand. Mr. Ochelebe told Dr. Van that he had picked up the contraband, but did not know what it was or who had thrown it.

(viii) April 3, 2025: Covering of Washroom Camera

[55] On April 3, 2025, Mr. Ochelebe covered a surveillance camera in a washroom. He pleaded "not guilty" and was found guilty and lost canteen privileges for a week. He told Dr. Van that he had covered the camera at the request of another inmate.

F. Dr. Van's Report and Testimony

(i) Diagnosis and Criminal Responsibility

(a) Schizophrenia

[56] It is Dr. Van's opinion that the most likely correct diagnosis for Mr. Ochelebe is schizophrenia, a disorder characterized by delusions, hallucinations, disorganized speech and behaviour, flat affect and anhedonia. Symptoms in males typically begin to emerge in late adolescence or early adulthood in the form of anxiety or paranoia and progress into delusions and hallucinations that influence the individual's behaviour towards others, often resulting in marked functional impairment. It is a lifelong condition and the mainstay of treatment is the use of antipsychotic medication.

[57] According to Dr. Van, Mr. Ochelebe's psychotic symptoms are currently in remission and he does not appear to have had any symptoms for over a year and a half.

(b) Cannabis Use Disorder

[58] Dr. Van believes that Mr. Ochelebe also has severe cannabis use disorder. She explained that a substance use disorder is defined by a cluster of psychological and physiological symptoms indicating that the individual continues to use a substance despite its use resulting in significant problems. Substance use can affect an individual's mood, behaviour and cognition. Substance use disorders are comorbid with other diagnoses in a majority of patients.

[59] Dr. Van described Mr. Ochelebe's cannabis use disorder as being in "sustained remission in a controlled environment" as she believed that cannabis was not available to him in the detention centres where he was in custody or at CAMH.

(c) "Cannot Rule Out Antisocial Personality Traits"

[60] Dr. Van stated that she "cannot rule out antisocial personality traits" in Mr. Ochelebe, but he did not meet the criteria for a diagnosis of antisocial personality disorder. This opinion was based on Mr. Ochelebe's inconsistent employment history, his theft under conviction and his "disregard for established rules while in custody."

(d) Criminal Responsibility

[61] In her November 15, 2024 report respecting Mr. Ochelebe's criminal responsibility, Dr. Van stated:

Based on the totality of information available, Mr. Ochelebe likely suffered from symptoms of a mental illness at the time of the commission of the index offence. While he may have had an appreciation of the nature and quality of the act, there was evidence to suggest that he had psychotic symptoms that were active at the material time to such a degree that it would deprive him of the ability to apply his understanding of wrongfulness of his actions and rationally direct this behaviour in according with the moral and legal standards of society.

(ii) Insight and Motivation

[62] In her July 24, 2025 report, Dr. Van stated:

Mr. Ochelebe said that he believes his diagnosis was "schizophrenia, substance-induced psychosis, I think it's more so schizophrenia." . . . He knew that his treatment was "olanzapine 5 mg" and denied any side effects. When asked if he thought he needed this medication, he said "yes." When asked if it is helpful, he said "100%." He added that the "point is to treatment symptoms. Because what would be worse? Having symptoms off the medications is worse." When asked how long he thought he needed to stay on treatment for, he said "probably until I feel better or until they say, probably for a good while." When asked what would happen if he stopped taking treatment, he said "maybe the symptoms will come back. I fear the symptoms will come back, that's why I'm very consistent taking the medication. . . God forbid I do another bad offence, I hurt the people I love around me. I think I should be ok, I don't plan on not taking my medications."

[63] Mr. Ochelebe acknowledged to Dr. Van that he did not adhere to his treatment plan while he was on bail between April 2021 and July 2023 as he would take olanzapine "on and off" during this period. He told her that he believed that the dose was "too strong" and would make him "sleep for two days." He told Dr. Van that he had not been aware of his symptoms while he was unwell.

[64] With respect to Mr. Ochelebe's cannabis use disorder, Dr. Van stated:

When asked about his use of cannabis during the time he was under house arrest, Mr. Ochelebe said he did it because it would help him relax and relieve his stress. When asked if it increased his symptoms, he said "not from what I know, I don't think so."

When asked if he thought he needed help for substance use, he said "I don't think so." He stated "I don't plan on using drugs in the future." When asked if he thought he needed to stay away from cannabis, he said "I guess yeah. Me myself, I still think it's therapeutic personally … if I want to stay away from symptoms of psychosis, I think it's best to stay away from marijuana." He denied cravings for cannabis and said "It's been a long time since I've used marijuana so I've outgrown the cravings." When asked if he would feel tempted to try it again, he said "not really no." When asked if he thought he could abstain from the use of cannabis indefinitely, he said "I'd like to think so. Given the situation, yes." When asked about the consequences of cannabis use, he said, "me personally, I don't think it's a big deal, but I think it's schizophrenia more than substance-induced psychosis. Given the offence, I wouldn't want the same symptoms again . . . I still think it's a therapeutic type of thing." Mr. Ochelebe said he would have "no trouble at all" abstaining from the use of substances while under the ORB, adding "if it's use cannabis or my freedom, I'm going to choose my freedom." When asked if he thought cannabis increased his risk of violence, he said "I don't think so personally, but I wouldn't risk it regardless."

[65] Dr. Van also described Mr. Ochelebe's response when asked to assess his own risk for violence:

. . . Mr. Ochelebe said, "I find it very low personally." When asked why, he said "because this whole situation has been a humbling experience. I know what I did was wrong, I don't want to put a family in that type of danger again. I don't want people to feel I'm a monster. I don't think I'm a monster. I'm going to do everything in my power to have that not happen again." When asked what things he would do, he said "take my medication, stay out of trouble, not take illicit drugs, get a job, focus on my life, my future, better myself as a person."

(iii) Testing and Assessment Tools

(a) Intelligence, Cognitive Functioning and Malingering

[66] Various intelligence and cognitive functioning tests showed Mr. Ochelebe to be within the average range. He also underwent a number of tests designed to detect malingering or exaggeration of symptoms, including the Test of Memory Malingering ("TOMM"), the Personality Assessment Inventory ("PAI"), the Structured Inventory of Malingered Symptomology ("SIMS"), and the Miller-Forensic Assessment of Symptoms Test ("M-FAST"). Dr. Van summarized the results of these tests in her report:

Taken together, Mr. Ochelebe's pattern of symptom endorsement across the PAI, TOMM, SIMS and M-FAST is not in keeping with attempts to malinger cognitive impairment. However, results did suggest that he tended to overstate the nature and/or severity of some of the psychological symptoms he may be experiencing.

[67] Dr. Van offered the following possible explanation for these results:

Throughout current interviewing, Mr. Ochelebe expressed concern regarding his behaviour proximal to and during the index offence, as well as an interest in receiving appropriate treatment, gaining a better understanding of his symptoms, and preventing future recurrences of such symptoms. As such, it is possible that his desire to better understand and treat his symptoms contributed to his somewhat exaggerated response style, which may have also reflected his need to emphasize his perception of the severity of his mental health symptoms and convey the distress he was experiencing at the time of his index offence.

(b) PCL-R

[68] The Psychopathy Checklist – Revised ("PCL-R") measures on a scale of 0 to 40 the extent to which an individual resembles "the ideal or prototypical psychopath." According to Dr. Van, the PCL-R score is frequently associated with a risk for violent or non-violent criminal recidivism, with a high score implying a high risk and poor responsivity to community treatment and supervision. A score of 30 or more is said to meet the definition of psychopathy. The average score in the community is 4 to 5 and the average score in the North American male prison population is 22. Mr. Ochelebe's score was 10, placing him in the 9.4th percentile of North American male offenders.

(c) VRAG

[69] The Violence Risk Appraisal Guild ("VRAG") is an actuarial risk assessment tool designed to predict the long-term risk of violent behaviour. Mr. Ochelebe received a score of +3, which places him in the 59th percentile in a sample of male offenders and the fifth of nine ascending categories or "bins." In a developmental sample, 35% of offenders in the same risk category re-offended within seven years of having an opportunity to do so and 48% re-offended within 10 years. Dr. Van described this as falling within a "moderate risk" category.

[70] Dr. Van offered the following caveat with respect to the VRAG:

… [I]t is important to note that actuarial methods provide probabilistic estimates of risk based solely on empirically established relationships between a number of clinically relevant predictors and violent recidivism. While actuarial risk tools can provide a structured estimate of future risk, caution should be taken when evaluating the results. Many tools, like the VRAG, rely heavily on static factors and do not account for change over time (e.g. with treatment, with improvement in mental state, presence of protective factors etc.). Furthermore, actuarial tools are based on group probabilities and have limitations on predicting what one individual might do and can lack meaning in risk management.

(d) HCR-20

[71] The HCR-20 is a structured risk assessment guide that is designed for forensic professionals to assess risk based on structured professional judgment having regard for historical, clinical and risk management factors. The guide includes 10 historical ("H") variables (e.g. problems with violence, other antisocial behaviour, substance use or mental disorder), five clinical ("C") variables (e.g. problems with treatment and supervision response and insight) and five risk management ("R") variables (e.g. problems with treatment or supervision response, stress and coping). The clinician scores each factor as being present, partially or possibly present or not present and also scores the relevance of each factor. The tool is designed to assist in the formulation of clinical judgment in order to guide treatment decisions. No score is assigned, nor is risk assessed in terms of percentages or percentiles.

[72] According to Dr. Van, historical ("H") items that were "highly relevant" and present included problems with violence (the index offences), other antisocial behaviour (institutional misconducts and the theft under conviction), substance abuse, the presence of a major mental disorder, and treatment or supervision response (non-adherence to medication while on bail). An item that was of "moderate relevance" and present was problems with employment (frequent job changes, conflict with employers and failure to complete college program). Items that were "highly relevant" but "partially/possibly present" were problem with violent attitudes (physical altercations in custody) and relationship (possible having antisocial peers in the community and in custody).

[73] Clinical ("C") items that were "highly relevant" and present included problems with treatment or supervision response (failure to comply with rules in custody). An item that was "highly relevant" but partially present was recent problems with insight, which Dr. Van described as "some failure to understand and manage interpersonal factors that have contributed to violence risk, some limited appreciation of the role of cannabis use in contributing to violent behaviour."

[74] A risk management ("R") item that was "highly relevant" but "possibly/partially present" was "future problems with treatment or supervision response, and stress or coping." This was based on the possibility that Mr. Ochelebe may develop problems with supervision while in the hospital in the future and the possibility that he would face new challenges and stressors when he was re-integrated into the community. However, Dr. Van was of the view that while Mr. Ochelebe was subject to a detention order, his risk management needs could be effectively addressed and his "level of supervision and monitoring can be titrated to meet his needs, as well as the protection needs of the public."

[75] If Mr. Ochelebe was granted an absolute discharge, Dr. Van viewed his "future problems with treatment or supervision response, and stress or coping" as "present" rather than "possibly/partially present." This was because Mr. Ochelebe did not currently have outpatient mental health supports in the community and would not be expected to follow up with a forensic outpatient team if discharged absolutely. According to Dr. Van, "It is unknown if he would consistently follow through with psychiatric care, take medications, and participate in psychosocial treatment recommendations." She noted in this regard that he had a history of not adhering to treatment recommendations. Because Mr. Ochelebe is currently capable of consenting to treatment, there would be little his clinical team could do if he refused to follow treatment recommendations unless he became psychotic or certifiable under the Mental Health Act.

(e) SAPROF

[76] The Structured Assessment of Protective Factors ("SAPROF") is a violence risk assessment tool designed to assess protective factors which are deemed to be most likely to reduce the risk of future violence. Mr. Ochelebe's protective factors include his motivation for treatment, response to medication, positive life goals, and the presence of a supportive social network. Overall, Mr. Ochelebe was found to have a "moderate level" of protective factors present.

(iv) Risk Assessment

(a) The "High Risk Accused" Criteria

[77] Dr. Van was asked to provide opinions on Mr. Ochelebe's level of risk. She was aware of the criteria for an HRA designation in s. 672.64(1). However, because terms such as "substantial likelihood" and "brutal nature" are not defined psychiatric concepts, she was unable to offer an opinion as to whether Mr. Ochelebe meets the criteria for designation as an HRA. She did discuss the factors enumerated in s. 672.64(2) and her opinions are described later in these reasons during my consideration of those factors.

(b) Level of Risk While Subject to a Detention Order

[78] Dr. Van was asked to consider Mr. Ochelebe's level of risk in two scenarios: where he is in a hospital subject to a detention order; (2) where he has received an absolute discharge and is not subject to any supervision. Her assessments included her application of the HCR-20.

[79] Dr. Van concluded that Mr. Ochelebe's level of risk while detained in a hospital was "low to moderate" based on his record of adhering to treatment, his motivation and his family support, among other factors. If he did engage in violence, the risk that that violence would involve serious or life-threatening harm was "high."

(c) Level of Risk Following an Absolute Discharge

[80] Dr. Van testified that in the event that Mr. Ochelebe was granted an absolute discharge, his risk of engaging in any type of violence would be "moderate to high," depending on whether there was a recurrence of psychotic symptoms. Later in her testimony, Dr. Van clarified that if Mr. Ochelebe developed psychotic symptoms, it is likely that he would be violent. If he did not develop psychotic symptoms, any serious risk was unlikely.

[81] According to Dr. Van, the risk of psychotic symptoms developing would be high if Mr. Ochelebe did not follow his treatment plan. She noted that he has adhered to his treatment recommendations for the past two years and appears to be motivated to continue doing so while at CAMH. Although he appeared to believe that cannabis had some therapeutic effects for him, he had stated, "If I want to stay away from symptoms of psychosis, I think it is best to stay away from marijuana." Although Mr. Ochelebe appears motivated at present, Dr. Van noted that he had failed to adhere to his treatment plan in the past and had surreptitiously obtained and used cannabis after being recommended to abstain from it.

[82] Dr. Van was unable to provide an opinion on the likelihood that Mr. Ochelebe would or would not take his medication and abstain from substance abuse if he was living in the community without supervision. As she put it, this is "still to be tested."

II. ANALYSIS

A. The "Not Criminally Responsible" Regime

(i) Moral Responsibility and Part XX.1 of the Criminal Code

[83] The criminal law is based on the concept of moral agency. An individual who is able to differentiate between right and wrong and free to make choices with that understanding can be held responsible for those choices. But such responsibility cannot attach to a person who is unable to make that differentiation, as was explained by McLachlin J. (as she then was) in R. v. Chaulk, [1990] 2 S.C.R. 1303, at p. 1397:

Where a person lacks this capacity for choice because he or she is not capable of knowing that his or her acts are wrong, the moral justification for attribution of responsibility and punishment will be absent for, as Ferguson, ["A Critique of Proposals to Reform the Insanity Defence" (1989), 14 Queen's L.J. 135], observes at p. 140, "It is immoral to punish those who do not have the capacity to reason or to choose right from wrong".

See also R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at paras. 45-49.

[84] However, unlike a person who has been acquitted of criminal charges, a person who has been found NCR is not simply free to walk out of the courtroom. The court still has a responsibility to ensure that the public is protected. To enable this to happen, Parliament has created a scheme which is set out in Part XX.1 of the Criminal Code and which applies to any person who has been found NCR. The overall focus of Part XX.1 is to ensure that the NCR accused is subject to whatever restrictions on liberty are necessary to ensure the protection of the public. The NCR accused remains subject to the provisions of Part XX.1 for as long as he or she poses a significant threat to the safety of the public.

[85] Because an NCR finding entails a lack of moral responsibility, the provisions of Part XX.1 of the Code and the restrictions it allows to be placed on the liberty of an NCR accused are only concerned with the protection of the public. They have no penal purpose or effect and have nothing whatsoever to do with punishment or retribution: Winko v. B.C. (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at paras. 33, 41.

(ii) Review Boards and Disposition Hearings

[86] Except for the initial decision following an NCR finding, decisions about what measures are necessary to ensure the protection of the public are made by a Review Board, which in this province is the Ontario Review Board ("ORB"). The Review Board is a specialized tribunal, the members of which must include a Federal or Superior Court judge (or a person who is qualified for appointment to or retired from such a judicial office) and a psychiatrist: Criminal Code, ss. 672.39-41.

[87] The initial disposition hearing following an NCR finding can be made by either the court or the Review Board, although in Ontario the practice is for the court to refer the matter to the ORB. The ORB, as a specialized tribunal, has expertise the court does not. As the Supreme Court of Canada noted in R. v. Owen, 2002 SCC 33, [2003] 1 S.C.R. 779, at para. 30, "[i]t is evident that the assessment of whether [an NCR accused's] mental condition renders him a significant threat to the safety of the public calls for significant expertise."

[88] ORB hearings are informal and the strict rules of evidence that bind a court proceeding do not apply: Criminal Code, s. 672.5(2); Owen, at para. 30. The Attorney General of the province may be a party to the hearing: Criminal Code, s. 672.5(3). Victims of the index offence are entitled to receive notice of the hearing if they wish and may prepare a Victim Impact Statement which the ORB must consider: Criminal Code, ss. 672.5(5.1), 672.541.

[89] There are a variety of dispositions that the ORB can make, including detaining the NCR accused in a hospital subject to conditions, discharging him or her subject to conditions, or discharging him or her absolutely. Section 672.54 of the Code provides that although the ORB must consider the mental condition of the accused, his needs and his reintegration into society, the paramount consideration is the safety of the public.

(iii) "Significant Threat to the Safety of the Public"

[90] An absolute discharge can only be granted if the ORB concludes that the NCR accused is not a significant threat to the safety of the public: Criminal Code, s. 672.54(a). The term "significant threat to the safety of the public" is defined in s. 672.5401:

672.5401. For the purpose of s. 672.54, a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public – including any victim or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature and not necessarily violent.

[91] While s. 672.5401 could be read as including any risk of serious physical or psychological harm, the Supreme Court of Canada has made it clear that the constitutional validity of s. 672.54 is predicated on the term "significant threat" being interpreted to mean a "real risk" that is "more than speculative in nature" and which "must be supported by evidence": Winko, at paras. 57, 67-73.

B. The "High Risk Accused" Designation

(i) The Not Criminally Responsible Reform Act

[92] The "High Risk Accused" designation became part of XX.1 of the Code in 2014 with the enactment of the Not Criminally Responsible Reform Act, S.C. 2014, c. 6. In addition to creating the HRA designation, the Act amended s. 672.54 of the Code, which governs the making of dispositions by the Review Board, in two ways. First, the section as amended specifies that the safety of the public must be the paramount consideration in disposition decisions made by the Review Board. Prior to the amendment, protection of the public was listed as but one consideration, together with the accused's reintegration into society and others. Second, while the section formerly required the Review Board to make the disposition that was "least onerous and least restrictive," it now requires that the disposition be "necessary and appropriate."

[93] Also included in the amendments were provisions designed to enhance the participatory rights of victims in the Review Board process, which were described earlier in these reasons.

(ii) Making the Designation

[94] HRA designations are governed by s. 672.64, which provides as follows:

672.64 (1) On application made by the prosecutor before any disposition to discharge an accused absolutely, the court may, at the conclusion of a hearing, find the accused to be a high-risk accused if the accused has been found not criminally responsible on account of mental disorder for a serious personal injury offence, as defined in subsection 672.81(1.3), the accused was 18 years of age or more at the time of the commission of the offence and

(a) the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person; or

(b) the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person.

(2) In deciding whether to find that the accused is a high-risk accused, the court shall consider all relevant evidence, including

(a) the nature and circumstances of the offence;

(b) any pattern of repetitive behaviour of which the offence forms a part;

(c) the accused's current mental condition;

(d) the past and expected course of the accused's treatment, including the accused's willingness to follow treatment; and

(e) the opinions of experts who have examined the accused.

(3) If the court finds the accused to be a high-risk accused, the court shall make a disposition under paragraph 672.54(c), but the accused's detention must not be subject to any condition that would permit the accused to be absent from the hospital unless

(a) it is appropriate, in the opinion of the person in charge of the hospital, for the accused to be absent from the hospital for medical reasons or for any purpose that is necessary for the accused's treatment, if the accused is escorted by a person who is authorized by the person in charge of the hospital; and

(b) a structured plan has been prepared to address any risk related to the accused's absence and, as a result, that absence will not present an undue risk to the public.

(iii) Revoking the Designation

[95] Once an HRA designation is made, it remains in effect unless the Review Board refers the matter to a superior court to consider revoking it and the court decides to do so. The circumstances in which this can occur are set out in s. 672.84:

672.84 (1) If a Review Board holds a hearing under section 672.81 or 672.82 in respect of a high-risk accused, it shall, on the basis of any relevant information, including disposition information as defined in subsection 672.51(1) and an assessment report made under an assessment ordered under paragraph 672.121(c), if it is satisfied that there is not a substantial likelihood that the accused — whether found to be a high-risk accused under paragraph 672.64(1)(a) or (b) — will use violence that could endanger the life or safety of another person, refer the finding for review to the superior court of criminal jurisdiction.

(2) If the Review Board is not so satisfied, it shall review the conditions of detention imposed under paragraph 672.54(c), subject to the restrictions set out in subsection 672.64(3).

(3) If the Review Board refers the finding to the superior court of criminal jurisdiction for review, the court shall, at the conclusion of a hearing, revoke the finding if the court is satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person, in which case the court or the Review Board shall make a disposition under any of paragraphs 672.54(a) to (c).

(4) Any disposition referred to in subsection (3) is subject to sections 672.45 to 672.47 as if the revocation is a verdict.

(iv) Purpose of the Provisions

[96] The purpose of the HRA designation is "to protect the public from NCR accused who are considered dangerous and who present an unacceptably high risk to the public, requiring a further reduction in their liberty above the traditional oversight mandated by the Review Board": R. v. Hadfield, 2024 ONCA 46, 169 O.R. (3d) 622, at para. 7; R. v. Schoenborn, 2017 BCSC 1556, 354 C.C.C. (3d) 393, at para. 26. The court retains a discretion whether or not to make the designation, even where the criteria in s. 672.64(1) are met: Hadfield, at para. 10. The designation is "exceptional in nature and should be imposed sparingly": Hadfield, at para. 18. I am only aware of eight cases in Ontario where the designation was made, although there may be more: Hadfield; R. v. Teggert, 2025 ONCA 431, 3 C.R. (8th) 443; Re Cousineau, 2021 ONCA 760; R. v. Pestill, 2024 ONSC 2478; R. v. Grant, 2018 ONSC 3581; R. v. Carter, 2015 CarswellOnt 15574 (C.J.); Re Gautreau, [2024] O.R.B.D. No. 2172; R. v. Watts, 2020 ONSC 4671.

[97] As noted in Hadfield, at para. 23, the HRA regime is not without controversy, and some academic commentators have suggested that it is at best, unnecessary, and at worst, unconstitutional. However, commenting on the necessity or wisdom of legislation is not my role, and the constitutionality of the provisions has not been challenged. It is therefore incumbent on me to interpret and apply the provisions as best I can.

(v) The Standard of Proof

[98] No standard of proof is specified in s. 672.64(1). The Crown submits that the standard it must meet is a balance of probabilities. Relying on authorities considering the dangerous offender provisions of the Criminal Code, counsel for Mr. Ochelebe submits that because an HRA designation has a significant impact on an accused's liberty interests, the appropriate standard is proof beyond a reasonable doubt: R. v. Ouedraogo, 2025 ONCA 566, at para. 29; R. v. D. (F.E.) (2007), 2007 ONCA 246, 84 O.R. (3d) 721 (C.A.), at para. 52.

[99] I propose to consider this application on the balance of probabilities standard and only consider whether a higher standard is appropriate if the Crown succeeds on the lower standard.

C. The Need to Avoid Stereotypes

[100] People with mental illnesses are among the most marginalized and stigmatized members of our society. They are disproportionately represented among those who are unemployed, live in poverty, experience homelessness and become involved with the criminal justice system. They are frequently victims of discrimination and prejudicial treatment, often as a result of inaccurate perceptions and stereotypes. One of the most insidious of those stereotypes is the belief that all people with mental illness are necessarily prone to violence or inherently dangerous. As recently noted in Ontario (Attorney General) v. G., 2020 SCC 38, 451 D.L.R. (4th) 541, at para. 1:

People with mental illnesses face persistent stigma and prejudicial treatment in Canadian society, which has imposed profound and widespread social, political, and legal disadvantage on them. In particular, discriminatory perceptions that those with mental illnesses are inherently and indefinitely dangerous persist. These perceptions have served to support some of the most unjust treatment of those with mental illnesses.

D. Section 672.64(1)(a) of the Criminal Code

(i) "Substantial Likelihood"

[104] The designation is appropriate on the basis of s. 672.64(1)(a) where "the court is satisfied that there is a substantial likelihood that the accused will use violence that could endanger the life or safety of another person." It is now established that the term "substantial likelihood" in s. 672.54(1)(a) refers to a level or risk that is higher than that required to establish a "significant threat to the safety of the public," which is the standard that must be met for the Review Board to maintain jurisdiction over an accused. The term "denotes a high degree of probability that the accused will endanger the life or safety of another": Hadfield, at paras. 12-13. Since the existence of a "significant threat" must be supported by evidence, so must a finding that there is a "substantial likelihood" that the accused will use violence that could endanger the life or safety or another person.

(ii) Context of the Assessment

[105] In Re Cousineau, 2021 ONCA 760, at para. 50, the court concluded that the risk assessment must be made "on the assumption that the accused is not subject to external constraints imposed to reduce that risk." In other words, I must assess "the risk the accused would pose if not under the Board's jurisdiction."

[106] The assumptions I am to make in assessing Mr. Ochelebe's level of risk are entirely hypothetical. The reality is that under no circumstances would Mr. Ochelebe currently be living in the community without external constraints. Both Dr. Van and his treating psychiatrist are of the view that he meets the "significant threat" threshold in s. 672.54 of the Code and is therefore ineligible for an absolute discharge. While Mr. Ochelebe appears to be responding well to treatment, the reality is that regardless of whether he receives an HRA designation, he will likely be subject to the jurisdiction of the Review Board for a considerable period of time. However, the approach dictated by Cousineau requires me to assume that Mr. Ochelebe will be living in the community without restraints and I will do so.

(iii) The Factors in s. 682.64(2)

(a) The nature and circumstances of the offence

[107] Section 672.64(2) of the Code sets out a non-exhaustive list of factors that the court must consider, the first of which is the nature and circumstances of the offence. The offences and their effect on the victims were outlined earlier in these reasons. In her report, Dr. Van made no comment on the effect of this factor on her assessment of risk, noting that "the Court is in a far better position to consider these factors from a legal perspective."

[108] It is clear that Mr. Ochelebe engaged in very violent and dangerous conduct towards random victims he had no connection to, resulting in significant physical and psychological harm to them. This strongly suggests that if Mr. Ochelebe uses violence in the future, that violence could endanger the life and safety of another person: R. v. Pestill, 2025 ONSC 2478, at para. 22.

(b) Any pattern of repetitive behaviour of which the offence forms a part

[109] Crown counsel candidly acknowledged that there is no strong or cohesive pattern in this case. He points out that Mr. Ochelebe has a prior conviction from 2018. Although it is a conviction for theft under $5000, Mr. Ochelebe admits to having brandished a knife while he and another person stole cigars from someone. Crown counsel also points out that Mr. Ochelebe was arrested in 2023 in relation to an alleged home invasion.

[110] In considering whether there is a pattern or repetitive behaviour, it is important to keep in mind that s. 672.64 is part of Part XX.1 of the Code, which applies to individuals who have been found NCR. The sole purpose of the scheme in Part XX.1 is the protection of the public from threats to its safety that arise because of the accused's mental disorder: Winko, at para. 659. The purpose is not to punish the accused for the index offences or any past offences. It follows from this that in order for a pattern of repetitive behaviour to be relevant to an HRA determination, that pattern must be related to the accused's mental illness: R. v. Caines, 2023 ONSC 5482, at para. 74; Schoenborn, at para. 118; Grant, at para. 27.

[111] In her report, Dr. Van stated, "To my knowledge, there were no other violent incidents in Mr. Ochelebe's life that stemmed from symptoms of psychosis." There is no evidence that Mr. Ochelebe's mental illness played any role in the events giving rise to his theft under conviction.

[112] With respect to the home invasion, the only evidence in the record is a document entitled "Initial Officer Report" prepared by a police constable about two hours after the complainant first contacted the police but before he made a formal statement. The report describes an allegation that Mr. Ochelebe went to the home of a person he knew from high school and asked to see the person's brother. He produced a small knife, after which the complainant locked himself inside a bedroom. Mr. Ochelebe allegedly tried to break down the door, and then fled when the complainant called the police. According to the report, the complainant said that Mr. Ochelebe "appeared to be on drugs but could not indicate particularly why he believed this." The charges against Mr. Ochelebe were later stayed by the Crown and he remains presumed innocent of them.

[113] As noted in Caines, at para. 73, "[a] pattern of behaviour cannot be established by vague and imprecise information, by assumptions, or by hearsay information not shown to be reliable." Crown counsel candidly acknowledged that little weight can be attached to the "Initial Officer Report." I agree.

[114] The Crown also relies on Mr. Ochelebe's findings of misconduct while in custody. There is no suggestion that Mr. Ochelebe's mental illness played a role in any of these, and I note that three of them do not involve allegations of violence. Whether Mr. Ochelebe picked up unspecified contraband or covered a washroom camera is of little to no relevance to the issues I must determine.

[115] Although Mr. Ochelebe admitted to engaging in assaultive conduct with respect to three of the incidents (including some where he pleaded "not guilty"), he denied being involved in the April 24, 2024 incident. Based on the record before me, I am not prepared to find that he did what he was alleged to have done. Although Crown counsel asserted that findings of guilt by institutional officials are made on a balance of probabilities, he could find no statutory or regulatory support for this assertion. Misconduct hearings are "essentially an administrative process": Veysey v. Maplehurst Correctional Complex (2006), 217 O.A.C. 262 (Div. Ct.), at para. 37. They are conducted in accordance with s. 31 of Reg. 778 made under the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, which makes no mention of any standard of proof. In my view, as with the home invasion allegations, little weight can be placed on this evidence.

[116] Furthermore, carceral conditions are unique and do not necessarily provide any indication of how an individual would behave in the community. As noted by my colleague, Goldstein J., in R. v. Gordon, 2023 ONSC 1036, at para. 36:

Inmates are often under psychological stress because of difficult conditions. Those stresses can result in tempers flaring, outbursts, anger, or refusals to follow the lawful orders of correctional officers. Obviously individual situations will differ, but in my respectful view, a judge considering institutional misconducts by an inmate should bear that in mind.

This is particularly true in custodial institutions where there are frequent lockdowns and inmates are triple-bunked, circumstances Mr. Ochelebe described to Dr. Van and which are notorious in Toronto institutions: R. v. Shaikh, 2024 ONSC 774, at paras. 73-77; R. v. Anderson, 2025 ONSC 3767, at para. 59.

[117] In my view, caution must be exercised before placing too much weight on how an individual behaves in the unique circumstances of a custodial setting. I note that Dr. Van appears to have placed considerable weight on the evidence of Mr. Ochelebe's institutional misconduct in portions of her report, particularly in relation to her application of the HCR-20 and her conclusion that she could not "rule out antisocial personality traits." While I generally accept Dr. Van's evidence, I do so on the basis that she may have given undue weight to the evidence of institutional misconduct.

[118] Overall, there is little evidence of any pattern of behaviour in this case and this factor does not weigh in favour of a finding that there is a substantial likelihood that Mr. Ochelebe will engage in violence.

(c) The accused's current medical condition

[119] Mr. Ochelebe is responding well to treatment and has been free of psychotic symptoms for several months. Crown counsel acknowledges that this factor weighs in his favour. I note that in all of the authorities relied on by the Crown where an HRA designation was made, there was evidence that the accused was treatment-resistant: Teggert, at para. 8; Carter, at para. 37; Hadfield, at paras. 32-34; Pestill, at paras. 26-28; Grant, at para. 30.

(d) The past and expected course of the accused's treatment, including the accused's willingness to follow treatment

(e) The opinions of experts who have examined the accused

[120] I will consider these last two factors together because the evidence about Mr. Ochelebe's expected course of treatment and willingness to follow treatment comes mostly from Dr. Van, and Dr. Van's opinion is based in large part on this factor.

[121] This is, in my view, the critical factor in this case. Dr. Van's view, which I generally accept, is that the likelihood of Mr. Ochelebe engaging in violence depends on whether he develops psychotic symptoms. He responds well to treatment, so the likelihood of him developing psychotic symptoms depends in large part on whether he adheres to his treatment plan. He has been doing so while in the hospital and appears to be motivated to continue.

[122] However, Dr. Van is unable to make any prediction about what Mr. Ochelebe would do if he was living in the community without being subject to the Review Board's jurisdiction, which is the context Cousineau requires me to consider. As Crown counsel points out, Mr. Ochelebe has failed to follow his treatment plan in the past. Dr. Van refers to this in her report and identifies this period as being between April 2021 and July 2023. I agree that this is a cause for concern. However, I would make two observations.

[123] First, a psychiatrist recommended to Mr. Ochelebe in June 2021 that he discontinue treatment with olanzapine and it was not until February 2022 that another psychiatrist recommended that he resume taking it. At least some of the period of non-adherence can be accounted for by this medical advice which, with the benefit of hindsight, appears to have been erroneous.

[124] Second, Mr. Ochelebe told Dr. Van that he did not take olanzapine regularly during this period because he believed that the dose he was getting was too high. There may be some support for his view in this regard. When Mr. Ochelebe was first prescribed olanzapine in January 2021, the dose was 20 mg. He requested a reduction in medication in June 2021, but was instead told to discontinue it altogether. When it was prescribed again in February 2022, the dose was 10 mg. It was during this period that he failed to take his medication regularly. When Mr. Ochelebe was re-incarcerated in July 2023, the dose was lowered to 5 mg, where it has since remained. He appears to have taken his medication consistently since that time.

[125] Overall, Mr. Ochelebe appears to have insight into his behaviour, which distinguishes him from the accused in the cases relied on by the Crown: Teggert, at para. 16; Hadfield, at para. 35; Pestill, at para. 28; Grant, at paras. 50-53; Carter, at para. 22. However, as Dr. Van points out in her report, whether he would continue to do so if in the community without restrictions is "still to be tested." According to her:

A key part of safely evaluating this criminogenic risk factor is with supervision and monitoring while protections are in place and external controls are slowly withdrawn, to determine his intrinsic motivation to remain on treatment.

Later in her report, she stated:

Overall, Mr. Ochelebe has reported a willingness to follow through with treatment. The key in determining whether this is a genuine, intrinsic motivation, is with longitudinal follow-up as he is gradually tested in less structured environments, with exposure to greater stressors, with less external oversight.

Of course, that type of gradual evaluation by Mr. Ochelebe's medical team under the supervision of the Review Board would be much more difficult if an HRA designation is made, although I recognize that this is not a reason for declining to make the designation if it is otherwise warranted.

[126] Another relevant consideration is Mr. Ochelebe's cannabis use. It is clear from the evidence that the use of cannabis or similar substances increases the likelihood of psychotic symptoms, which in turn increases the likelihood of violence. Mr. Ochelebe had been diagnosed with cannabis use disorder in June 2021 and the fact that he appears to have unsuccessfully tried to stop or reduce his cannabis use shows that he had some recognition of the need to avoid it, yet he later failed to do so as he used cannabis without his family's knowledge while on bail.

[127] Mr. Ochelebe told Dr. Van that he intended to abstain from using cannabis, although he appears to still be of the view that it has therapeutic benefits for him. I agree with Crown counsel that Mr. Ochelebe's assertions of commitment to abstention are more equivocal than his comments respecting his plan to continue taking his medication. Ultimately, as with his continued medication use, Mr. Ochelebe's commitment is "still to be tested."

[128] Dr. Van appropriately declined to associate a numerical value with any of her predictions in recognition of the inherent uncertainty associated with them. I recognize that a numerical value was associated with the VRAG, but as Dr. Van explained, this is an actuarial tool that associates probabilities with respect to groups of individuals who share certain characteristics, many of which are static. It does not account for clinical judgement and does not predict an individual's level of risk.

(iv) Conclusion Respecting s. 672.64(1)(a)

[129] While the first factor enumerated in s. 672.64(2), the nature and circumstances of the offence, may support the Crown's position, the other factors do not.

[130] The evidence strongly suggests that Mr. Ochelebe currently has insight into his condition, is adhering to this treatment plan, and responds well to medication. Whether he is likely to engage in violence depends on whether he will continue to adhere to his treatment recommendations if and when he is released into the community without being subject to any conditions. Dr. Van is ultimately unable to predict whether he would do so, nor am I. Having considered all of the evidence on this application, the most I can say is that there is reason for guarded optimism.

[131] To justify an HRA designation pursuant to s. 672.64(1)(a), the Crown must satisfy the Court that there is a "substantial likelihood" that the accused will use violence that could endanger the life or safety or another person. In this case, the Crown relies heavily on the fact that there is considerable uncertainty about whether Mr. Ochelebe would follow his treatment plan if in the community without restrictions. Such uncertainty clearly exists, but it falls far short of establishing a "substantial likelihood" that Mr. Ochelebe will use violence if discharged absolutely.

[132] In Re Sheikh, 2019 ONCA 692, at para. 10, the court said the following about the test in s. 672.54(a) to determine whether an NCR accused should be discharged absolutely:

The test is not whether the appellant's behaviour could lead to decompensation and therefore the risk of serious harm, but whether there is evidence to support a positive finding that there is a significant threat to public safety. [Emphasis in original].

Later, at para. 38:

We are cognizant however, that there must be a "real risk of physical or psychological harm arising from criminal conduct." That standard is an onerous one that requires a careful assessment of the level of risk. The Board concluded that "without close supervision, the appellant would likely become noncompliant with the prescribed medication, which could lead to decompensation, use of substances and the re-emergence of behaviours similar to those that preceded the index offence" (emphasis added). This is not a determination of the real risk of physical or psychological harm occurring as a result of the appellant engaging in criminal conduct if granted an absolute discharge.

See also R. v. Ozipko, 2024 SKCA 9, at para. 26; R. v. H.M.H., 2021 ABCA 118, 404 C.C.C. (3d) 71, at para. 38. The same reasoning applies in the context of an HRA application: Caines, at paras. 83-86.

[133] While it is certainly possible that Mr. Ochelebe will experience psychotic symptoms and engage in violent behaviour if he was in the community without restrictions, the Crown has failed to establish a substantial likelihood that he will do so.

E. Section 672.64(1)(b) of the Criminal Code

(i) Overview of Legal Issues

[134] Section 672.64(1)(b) justifies an HRA designation where "the court is of the opinion that the acts that constitute the offence were of such a brutal nature as to indicate a risk of grave physical or psychological harm to another person." This avenue to an HRA designation seems to be relied on less often than s. 672.64(1)(a). I am only aware of one case in Ontario where the designation was made on this basis (as well as on the basis of s. 672.64(1)(a)): Cousineau, at para. 10. However, it appears to have been relied on numerous times in Québec, where HRA applications appear to be far more frequent than in this province. An HRA designation was also made on this basis is New Brunswick: R. v. Raymond, 2020 NBQB 251, at para. 23.

[135] Interpreting s. 672.64(1)(b) raises the following issues in this case: (1) the meaning of "such a brutal nature"; (2) the degree of risk that must be established. The parties agree that "grave physical or psychological harm" means harm that interferes in a substantial way with the physical or psychological integrity, health or well-being of another person: Schoenborn, at para. 100.

(ii) "Brutal Nature"

[136] In Schoenborn, at paras. 85-90, the court adopted the definition of "brutal" that has been applied in the context of s. 753(1)(a)(iii) in relation to applications to have an accused declared to be a dangerous offender. This definition was explained in R. v. Dorfer, 2013 BCCA 223, 337 B.C.A.C. 309, at 49, which adopted the definition in R. v. Campbell (2004), 120 C.R.R. (2d) 231 (Ont. S.C.J.), at para. 56:

Hill J. [the judge in Campbell] concluded that a review of the authorities demonstrated a settled approach to the interpretation of "brutal" as describing cruel, savage, inhuman conduct:

...Depending on case-specific circumstances, many of the cases have involved one or more of the following features: extreme violence inflicting horrendous physical injuries, causing continuing emotional distress, "sadistic" or "inhuman" behaviour, "gratuitous" or "unnecessary" violence, "torture" or "degrading" conduct, "prolonged" violence, multiple acts of violence, "unprovoked" violence, leaving the victim semi-conscious or unconscious or persisting in violence despite the victim being in such a state, and attacks on vulnerable victims such as an elderly person.

[137] As explained earlier, Part XX.1 of the Criminal Code, including s. 672.64(2)(b), only applies to those who have been found NCR and are therefore not morally responsible for their actions because they do not appreciate the nature and quality of their acts, or because they do not appreciate that what they did was wrong. Words such as "cruel, savage, inhuman" or "sadistic" are moral terms that express moral judgments about a person or his or her actions. They can have no application in a situation where there is no moral responsibility. A person who harms another without realizing what he is doing or who does not appreciate that what he is doing is wrong is not being "cruel" or "sadistic."

[138] In my view, it is only those aspects of the definition of "brutal" set out in Dorfer and Campbell which do not express moral judgment about the individual or his or her actions that apply in the s. 672.64(2)(b) context. For example, the fact that an action causes "horrendous physical injuries," "continuing emotional distress" or leaves a victim "semi-conscious or unconscious" is unrelated to the moral character of the act. The effect on the victims is the same regardless of whether the accused understood what he was doing or appreciated that it was wrong.

[139] In this case, the physical and psychological effects on the victims, which are described earlier in these reasons, were significant. In my view, they meet the modified definition of "brutal" that applies in the context of s. 672.64(1)(b).

[140] The fact that the acts were brutal does not, by itself, necessarily imply any particular level of risk. As noted earlier, empirical data does not suggest the existence of any such correlation and the caselaw does not support making assumptions about risk solely based on the nature of the offence. As with s. 672.64(1)(a), the court must consider all relevant factors, including those enumerated in s. 672.64(2). But before doing so, I must consider what level of risk must be established to justify an HRA designation.

(iii) The Degree of Risk

(a) R. v. Schoenborn

[141] The degree of risk required by s. 672.64(1)(b) is the subject of conflicting judicial decisions. In Schoenborn, at paras. 91-96, Devlin J. noted that on its face, s. 672.64(1)(b) appears to require only a moderate degree of probability because the word "risk" is not modified by adjectives such as "significant" or "substantial." However, she concluded that a consideration of the HRA scheme as a whole compels the conclusion that the degree of risk is the same in both s. 672.64(1)(a) and (b), that is, a "substantial likelihood." This is because although an HRA designation can be made based on either subsection (a) or (b), s. 672.84(3) provides that a court can only revoke the designation if it is "satisfied that there is not a substantial likelihood that the accused will use violence that could endanger the life or safety of another person," which tracks the language in s. 672.64(1)(a). Devlin J. viewed this is as significant (at para. 95):

In my view, s. 672.64(1)(b) must be interpreted in light of the review provisions in s. 672.84. Parliament drafted s. 672.84(1) and (3) such that the only basis for revoking a HRA finding is for the Review Board, and then the court, to be satisfied that there is not a substantial likelihood the accused will use violence that could endanger the life or safety of another person. That is true whether the accused was found to be a HRA under s. 672.64(1)(a) or (b). Therefore, the only way for an accused found to be a HRA under s. 672.64(1)(b) to have his or her designation revoked is to satisfy the Review Board and then the court that he or she does not meet the criteria for a HRA finding under s. 672.64(1)(a) - that is, he or she is not substantially likely to use violence that could endanger the life or safety of another person. In order to give effect to these review provisions, the "risk" in s. 672.64(1)(b) must be interpreted as involving the same degree of probability as the "substantial likelihood" in s. 672.64(1)(a). Otherwise, if s. 672.64(1)(b) involved a lower degree of probability, an accused found to be a HRA under s. 672.64(1)(b) and not s. 672.64(1)(a) would be immediately eligible to have the HRA finding revoked, rendering s. 672.64(1)(b) essentially inoperative. Put differently, the clear wording of the review provisions in s. 672.84 seems to require an interpretation of s. 672.64(1) whereby a risk of grave physical or psychological harm in s. 674.64(1)(b) includes, by definition, a substantial likelihood the accused will use violence that could endanger the life or safety of another person in s. 672.64(1)(b). If not, then a NCR accused found to be a HRA under s. 672.64(1)(b) but not (a) would immediately be entitled to have the finding revoked. This result renders s. 672.64(1)(b) futile. In order to give effect to the review provisions in s. 672.84, the "risk" in s. 672.64(1)(b) must involve the same heightened degree of probability as the "substantial likelihood" in s. 672.64(1)(a).

(b) Lafrenière c. R.

[142] A different view was taken by the Québec Court of Appeal in Lafrenière c. R., 2022 QCCA 96, at paras. 90-30. The Court agreed that as described in Schoenborn, the HRA scheme gives rise to the possibility that an accused will be designated as an HRA pursuant to s. 672.64(1)(b) but not (a), only to have the Review Board immediately refer the matter back to the court because the accused does not meet the criteria in s. 672.64(1)(a), which, if the court agrees, would result in the designation being revoked. However, the court was of the view that Parliament must have been aware of this possibility, as s. 672.84(1) clearly states that it applies to any accused "whether found to be a high-risk accused under paragraph 672.64(1)(a) or (b)": Lafrenière, at paras. 20-22. The court concluded from this that Parliament must have intended that the exercise before the court should be different from that before the Review Board, although why this was so remains to be seen ("c'est à voir"): Lafrenière, at para. 23.

[143] The court in Lafrenière, at paras. 26-27, concluded that the two subsections were intended to reflect different levels of risk in relation to different types of harm:

Pour résumer, les deux alinéas ont des objectifs différents :

• L'alinéa 672.64(1) a) C.cr. requiert une preuve de risque élevé, substantiel (probabilité marquée) d'usage ultérieur de violence pouvant mettre en danger la vie ou la sécurité d'autrui. Donc, dans la plupart des cas, un historique de violence démontrant une probabilité marquée de violence ou, plus généralement, de récidive. Mais pas n'importe laquelle : une récidive qui pourrait mettre en danger la vie ou la sécurité d'une autre personne (et non pas de l'accusé).

• L'alinéa 672.64(1) b) C.cr. se concentre plutôt sur les circonstances du crime qui, considérées à la lumière de l'ensemble de la preuve, doivent démontrer l'existence d'un risque (qui n'est pas qualifié) de préjudice grave pour une autre personne.

On voit que l'angle d'analyse diffère. Un risque de préjudice grave est fort différent d'une probabilité marquée de violence pouvant mettre en danger la vie ou la sécurité.

[144] Although the court concluded that the level of risk required in s. 672.64(1)(b) was not described or qualified ("pas qualifié"), the court had earlier described the level of risk as being the same as that described in Winko, at paras. 57, in the context of decisions made by the Review Board pursuant to s. 672.54 (at para. 18):

Quoi qu'il en soit, si on devait appliquer Winko à l'article 672.64 C.cr., la Cour suprême décrit la notion de «risque important pour la sécurité du public» au paragraphe 57 :

The threat must also be "significant", both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of a grave harm will not suffice. Similarly, a high risk of trivial harm will not meet the threshold.

Dans le cadre de l'alinéa b), le ministère public doit démontrer un risque de préjudice grave. La gravité du préjudice appréhendé peut découler de la brutalité des actes à l'origine de l'infraction, mais le ministère public doit démontrer de plus un risque réel (et donc pas hypothétique), qui est plus que «minime» / «minuscule», que ce préjudice se produira.

See also Lebel c. R., 2024 QCCA 1666, at para. 8.

[145] Thus, for the court in Lafrenière, the term "risk" in s. 672.64(1)(b) has the same definition as the term "significant threat" in s. 672.54, that is, "a real risk of physical or psychological harm." This is clearly less than the "substantial likelihood" standard in s. 672.64(1)(a).

[146] The Crown submits that I should adopt Lafrenière rather than Schoenborn on this issue and treat the level of risk required by s. 672.64(1)(b) as something less than that required by s. 672.64(1)(a). I would not do so for three reasons.

(c) Horizontal Stare Decisis

[147] First, the interpretation of s. 647.2(1)(b) in Schoenborn was adopted and applied by my colleague, Fuerst J., in Caines, at para. 55. As was recently affirmed in R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at paras. 73-80, the doctrine of horizontal stare decisis provides that I am to follow a decision of a court of concurrent jurisdiction except in the limited circumstances set out in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592, which are (1) where the decision was undermined by subsequent appellate decisions; (2) where the decision was reached per incuriam, that is, where some binding authority or statute was not considered; or (3) where the decision was taken in exigent circumstances. No subsequent binding appellate decision undermines Fuerst J.'s conclusion in Caines. While Fuerst J. did not mention Lafrenière, which pre-dated Caines, this was not a binding a decision. The application in Caines was heard on June 28 and August 17, 2023 and the ruling was released on October 3, 2023, so it was clearly not taken in exigent circumstances.

(d) The Level of Risk in s. 672.64(1) Must be Greater Than in s. 672.54

[148] Second, as I will explain, I am precluded from adopting the approach in Lafrenière because it is contrary to jurisprudence by which I am bound. As noted, Lafrenière concludes that the term "risk of grave physical or psychological harm to another person" in s. 672.64(1)(b) has the same meaning as the term "significant threat to the safety of the public" in s. 672.54, which was interpreted in Winko, at para. 57, to mean "a real risk of physical or psychological harm" that is serious or grave. In other words, the level of risk required for an HRA designation is the same as that required for the Review Board to maintain jurisdiction over an NCR accused.

[149] However, in Hadfield, at para. 12, the Ontario Court of Appeal adopted the following conclusion in Schoenborn, at para. 42:

. . . [T]he statutory context and legislative history support the conclusion that Parliament intended to require a finding of a greater level of risk for a[n] HRA designation under s. 672.64(1)(a) than is necessary to keep a[n] NCR accused under Review Board jurisdiction under s. 672.54. The purpose of the HRA regime is to protect the public from NCR accused who are considered to present an unacceptably high risk, requiring a further reduction in their liberty in the form of mandatory custodial detention and other restrictions. It would be illogical to ground these liberty deprivations in the same level of risk that is already required to maintain Review Board jurisdiction over a[n] NCR accused in the pre-existing NCRMD regime, which already provides for custodial detention where necessary. To do so would unduly broaden the scope of the HRA criteria and result in an interpretation that would not properly reflect the scheme or object of the legislation. It would not reflect the object of the legislation because it would potentially capture those who do not pose an unacceptably high risk to members of the public. [Emphasis added].

Although this aspect of Schoenborn deals with s. 672.64(1)(a), the reasoning would apply equally to s. 672.64(1)(b).

[150] It follows that the conclusion in Lafrenière that the level of risk required for an HRA designation pursuant to s. 672.64(1)(b) is the same as that which is necessary to maintain an NCR accused under Review Board jurisdiction is inconsistent with the conclusion reached in Schoenborn, and adopted in Hadfield, that the level of risk must be higher to prevent unduly broadening the scope of the HRA criteria. As I am bound by Hadfield, it is not open to me to follow Lafrenière.

(e) Unduly Broadening the Scope of the HRA Provisions

[151] The third reason, which is related to the second, is that the lower risk threshold in Lafrenière could have the effect of widening the scope of the HRA regime to the point that it is no longer exceptional or applied sparingly, as Hadfield suggests it should be (at para. 18). This was noted by Bernheim and Brosseau, at p. 235:

The recent interpretation of subsection. 672.64(1)(b) proposed by the courts in Quebec raises various concerns. Above all, it widens the scope of the HRA regime by significantly lowering the risk threshold that must be met to find an accused to be high-risk, that is below the substantial likelihood standard and potentially below the significant threat standard. This interpretation invites the courts to establish a link between the nature of the past offence and potential future behavior, thus granting a preponderant weight to the past offence in the risk assessment. Indeed, an accused person could be found to be high risk not because they present a high risk to reoffend, but because if any risk exists, this risk could result in grave physical or psychological harm to another person. This poses serious questions regarding the exceptional nature of the HRA regime itself and regarding the core principles of the NCR regime, which must apply to and protect all NCR accused individuals. Consequently, the exceptional nature of the HRA regime could potentially lapse in the case of certain serious offences and by the same token with respect to the accused individuals who would have been found NCR for these offences. [Emphasis in original].

(f) Conclusion on Risk Required for Designation Pursuant to s. 672.64(1)(b)

[152] For these reasons, I have concluded that I must follow the conclusion in Schoenborn that the level of risk in s. 672.64(1)(b) must be interpreted as involving the same degree of probability as the "substantial likelihood" in s. 672.64(1)(a). I appreciate that as pointed out in Lafrenière, the word "risk" in s. 672.64(1)(b) is not modified. But Parliament could not have mean that any risk, no matter how miniscule, can justify an HRA designation, so interpreting the section requires that the level of risk be quantified. Even the court in Lafrenière concluded that some modification of the term is necessary, as it in effect read in the word "substantial" as that term is explained in Winko. Thus, both Schoenborn and Lafrenière agree that the term "risk" in s. 672.64(1)(b) needs to be modified, but disagree as to the appropriate modifier. For the reasons I have explained, I agree with the conclusion in Schoenborn that the appropriate modifier is "substantial."

(iv) Differences Between s. 672.64(1)(a) and (b)

[153] If the level of risk is the same for s. 672.64(1)(a) as it is for (b), what then is the difference between the two subsections? The wording of s. 672.64(1)(b) requires the court to focus on the "brutal nature" of the acts in assessing risk. I appreciate that this would be considered in any event, as s. 672.64(2)(a) requires consideration of "the nature and circumstances of the offence," which would include its "brutality." However, with s. 672.64(1)(b), the Crown must establish that the existence of an unacceptable risk arises from the "brutality" of the offence. As noted in Schoenborn, at para. 254, "[t]he language of s. 672.64(1)(b) requires a link between the brutality of the index offence and the risk of grave physical or psychological harm – it is the brutality which must 'indicate' the risk." It follows that in applications made pursuant to s. 672.64(1)(b), the emphasis will be on the nature and circumstances of the offence. However, the court must keep in mind that as noted earlier, the nature of the offence does not, by itself, necessarily imply the existence of any particular degree of risk.

[154] The other factors enumerated in s. 672.64(2) must also be considered, but should be considered in terms of how they relate to the connection, if any, between the "brutality" of the offence and the risk posed by the NCR accused. For example, in considering whether there is a pattern of repetitive behaviour, the court should consider whether the other behaviour said to form part of the pattern also involved "brutal" acts, which may suggest that the there is a risk of similar conduct in the future.

(v) The Factors in s. 672.64(2)

(a) The nature and circumstances of the offence

[155] As noted, the factor in s. 672.64(2)(a) should be the focus of the inquiry in cases involving s. 672.64(1)(b), although all of the factors must be considered. Dr. Van declined to express any opinion with respect to any of the criteria in s. 672.64(2):

The threshold for brutality is also difficult to interpret from a psychiatric perspective as it is not a well-established psychiatric concept and appears to involve a high degree of subjective opinion. As a result, no psychiatric opinion can be proffered with respect to these criterions, and the question of whether or not Mr. Ochelebe would meet criteria for a high-risk accused ultimately lies with the Court.

The nature and circumstances of the index offences have been previously described, and the Court is in a far better position to consider these factors from a legal perspective.

[156] The fact that Mr. Ochelebe has engaged in violent acts in the past did form part of Dr. Van's risk assessment, including her use of the VRAG and the HCR-20, although the degree and nature of the violence or its "brutality" does not appear to have been a separate consideration. As a result, the impact of those aspects of Dr. Van's opinion is the same in the risk assessment made pursuant to s. 672.64(1)(b) as it is for (a).

(b) Any pattern of repetitive behaviour of which the offence forms a part

[157] None of the other incidents the Crown relies on to establish a pattern of behaviour approached the severity of the index offences, and none can be properly described as "brutal."

(c) The accused's current medical condition

(d) The past and expected course of the accused's treatment, including the accused's willingness to follow treatment

(e) The opinions of experts who have examined the accused

[158] My analysis with respect to these factors is the same as it was under s. 672.64(1)(a).

(vi) Conclusion Respecting s. 672.64(1)(b)

[159] Crown counsel expressed the view that his argument is stronger with respect to s. 672.64(1)(b) than it is to (a), although this may have been premised on his submission that the level of risk that needs to be established is something lower than a "substantial likelihood." For the reasons I have explained, I do not accept that it is.

[160] That said, the factual trigger for the application of s. 672.64(1)(b), which is that the index offences involved acts of "brutality," is certainly present in this case. The index offences clearly had a very significant, devastating and long lasting impact on the victims in this case. However, as explained earlier, the purpose of an HRA designation is not to punish Mr. Ochelebe or seek retribution for the harm he has caused. The court's sole concern is the level of risk Mr. Ochelebe poses to the public. There is nothing in Dr. Van's opinion or elsewhere in the record on this application that suggests that the level of risk posed by Mr. Ochelebe is in any way related to the extent to which his acts can be described as "brutal."

[161] As noted earlier, Mr. Ochelebe has responded well to treatment. His level of risk is dependent on the likelihood that his psychotic symptoms will return, which is in turn dependent on his commitment to follow his treatment plan. The extent to which he would do so if in the community without conditions is unknown, although as I have indicated, there is cause for guarded optimism in this regard. As the burden of establishing the requisite level of risk is on the Crown, Mr. Ochelebe is entitled to the benefit of any uncertainty on this issue: Caines, at paras. 85-86; Sheikh, at para. 10; Ozipko, at para. 26; H.M.H., at para. 38.

[162] In any event, given that Mr. Ochelebe has responded well to treatment and appears to be motivated to continue to do so, I would have exercised my discretion not to make an HRA designation in this case even if Mr. Ochelebe had met the criteria in s. 672.64(1)(a) or (b).

F. Standard of Proof

[163] As I have concluded that the Crown has not met its burden to justify an HRA designation on a balance of probabilities, I need not decide whether a higher standard of proof is appropriate.

III. DISPOSITION

[164] The application is dismissed.

[165] Neither party has requested that I hold a disposition hearing in this matter pursuant to s. 672.45(1) of the Criminal Code, so in accordance with s. 672.45(1.1), the transcripts, exhibits and other items identified in that section, including these reasons, are to be sent without delay to the ORB so that a hearing can be held pursuant to s. 672.47(1).

Justice P.A. Schreck

Released: October 2, 2025