CITATION: R. v. Barton, 2026 ONSC 2439

COURT FILE NO.: CR-25-40000095-0000

DATE: 20260508

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Applicant

and -

CRAIG BARTON

Respondent

C. Ewan, for the Applicant Crown

N. Xynnis, Amicus Curaie

B. Ryan, Counsel for Craig Barton

HEARD: April 24 and May 8, 2026

J.M. Barrett J.

RULING ON REQUEST FOR PSYCHIATRIC ASSESSMENT PURSUANT TO SECTION 752.1 OF THE CRIMINAL CODE

1On December 1, 2025, Mr. Barton was to commence his five-day judge and jury trial but expressed a desire to plead guilty to the four charges on the indictment. At that time, he was represented by Ms. Tonya Kent.

2On December 2, 2025, Mr. Barton re-elected to be tried before me without a jury. Prior to the Crown reading in the allegations, I was advised that the defence intended to pursue a finding that Mr. Barton was not criminally responsible by reason of mental disorder, pursuant to s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, failing which, the Crown intended to seek a designation that Mr. Barton is either a long-term offender or dangerous offender. Given that either outcome risked indefinite detention for Mr. Barton, I informed Mr. Barton of this potential prior to his plea.

3With Mr. Barton’s consent, the Crown read in all of the allegations and played a video recording which captured his offending behaviour underlying the four offences — all of which stemmed from Mr. Barton brandishing a hunting knife at an Ontario Disability Support Program (“ODSP”) office on August 11, 2023, in violation of a probation order which prohibited his possession of any weapons. As a result of this conduct, Mr. Barton was charged with fail to comply with his probation order, contrary to s. 733.1 of the Criminal Code; weapons dangerous, contrary to s. 88(1) of the Criminal Code; assault with a weapon, contrary to s. 267(2) of the Criminal Code; and mischief under $5,000, contrary to s. 430(4) of the Criminal Code.

4The Agreed Statement of Facts signed by both Ms. Kent and Mr. Barton agreed that the probation order was issued on May 4, 2023, by Justice Brock Jones of the Ontario Court of Justice in relation to a conviction for utter threats. While this order was in effect, Mr. Barton agreed that on Friday, August 11, 2023, at approximately 4:30 p.m., he attended at the ODSP office located at 786 Lawrence Avenue West in the City of Toronto. After speaking with Jonathan Nelson, who was working behind a partitioned front desk, Mr. Barton became visibly upset and brandished a large hunting knife with an orange handle. Mr. Barton then used the knife to damage the clear plastic partition and counter before walking out. A warrant for Mr. Barton’s arrest was issued. Mr. Barton was arrested by Peel Regional Police on Monday, August 14, 2023, for an unrelated matter. At that time, his outstanding warrant for the Toronto charges was executed. He has been in custody since his arrest – over 2.5 years. I am aware that four months of this time has already been taken into account at Mr. Barton’s last sentencing hearing on October 3, 202, by Justice Weinstein.

5Following Mr. Barton’s acceptance of the facts as accurate, his counsel, Ms. Kent, applied for an assessment order to determine criminal responsibility. The Crown did not oppose the application, given the low threshold test. The order was granted, based on Ms. Kent’s submissions which noted that Mr. Barton had previously been diagnosed with schizophrenia; he was off his prescribed anti-psychotic medication at the time of the offences; and that some of his conduct, as seen on the videotaped recording of the incident, is arguably unusual. Based on Mr. Barton’s acceptance of the facts, I found that the actus reus of all four offences was established. I deferred any findings of guilt pending receipt of the psychiatric assessment. I also ordered a Gladue Report based on Mr. Barton’s self-identification as an Indigenous person.

6The assessment was to begin on December 17, 2025, at the Centre for Addiction and Mental Health (“CAMH”) with forensic psychiatrist Dr. Kineta Valoo. When the matter returned on January 8, 2026, Ms. Kent brought an application to be removed as counsel of record due to a breakdown in the solicitor-client relationship. During submissions on this application, I was informed that Ms. Kent was Mr. Barton’s fourth counsel of record. Ms. Kent’s application was granted. The matter was adjourned to January 16, 2026, to permit amicus to be identified and appointed to assist with the matter moving forward, given that the Crown had sought an extension of the assessment order. Mr. Barton had asked to be found guilty and sentenced, as he no longer wanted to pursue a finding of not criminally responsible under s. 16 of the Criminal Code.

7When the matter returned on January 16, 2026, Mr. Xyniss was appointed as amicus. The matter was adjourned to January 30, 2026, for Mr. Xyniss to discuss next steps with Mr. Barton. On that date, the court ordered a further 60-day assessment to determine Mr. Barton’s criminal responsibility. However, Mr. Barton terminated the interview after 30 minutes and refused to meet thereafter with Dr. Valoo. Consequently, the assessment report, dated February 18, 2026, was prepared without Mr. Barton’s participation in the assessment process. In her report, Dr. Valoo stated that Mr. Barton has a history of “cluster B personality disorder traits”. Dr. Valoo opined that Mr. Barton likely has a diagnosis of substance use disorders, but not schizophrenia. Dr. Valoo concluded that a defence of not criminally responsible would not be available to Mr. Barton.

8At the next court appearance of February 27, 2026, Dr. Valoo’s report was filed. A letter, dated February 24, 2026 from Aboriginal Legal Services, was also filed advising that they are “unable to prepare a Gladue Report” for two reasons: (1) “we are unsure, as is he, about the specific nature of his Indigenous ancestry”; and (2) even if his ancestry was somehow able to be confirmed, we cannot address how being an Indigenous person has affected his life circumstances. The purpose of a Gladue Report is to discuss the way in which an individual has been influenced and affected by their Indigenous ancestry – either directly or by systemic and historical factors”. The author of the letter notes that the inability to prepare a Gladue Report did not mean that Mr. Barton is not an Indigenous person. Nor did it mean that if he is Indigenous, Gladue issues could be at play.

9At the appearance of February 27, 2026, Mr. Barton adamantly argued for an opportunity to participate in the assessment process. Crown counsel and amicus both supported Mr. Barton’s request for an extension of the assessment order. With some reluctance, a 30-day assessment was ordered. The matter was adjourned to April 2, 2026.

10On March 30, 2026, Dr. Valoo completed a supplementary report based on new information obtained during a two-hour interview conducted on March 10, 2026 with Mr. Barton, and psychological testing that was conducted on March 26, 2026. In her supplementary report, Dr. Valoo indicated that the psychological assessment “suggests that Mr. Barton may be exaggerating or malingering the nature and/or severity of symptoms of mental illness”. Dr. Valoo remained of the opinion that Mr. Barton likely did not meet the diagnostic criteria for schizophrenia and that a defence of not criminally responsible would not be available to Mr. Barton. Dr. Valoo opined that Mr. Barton has a diagnosis of “other specified personality disorder (with antisocial personality disorder features without evidence of conduct disorder with onset before age 15) and alcohol use disorder and stimulant use disorders, both in sustained remission in a controlled environment”. The supplementary report was filed on April 2, 2026 (Exhibit 8).

11Given that the onus for establishing the criteria under s. 16 of the Criminal Code is on the party raising the defence of not criminally responsible, and in light of Dr. Valoo’s report, on April 2, 2026, I entered findings of guilt on the four charges in the indictment based on the facts previously admitted by Mr. Barton as supported by the video tape of the incident which was filed as Exhibit 1. The matter was adjourned to April 24, 2026, at both the Crown and Mr. Barton’s request. Mr. Barton hoped to retain counsel from Mr. Royale’s office while the Crown required time to prepare an application record to request an assessment pursuant to s. 752.1 of the Criminal Code. Prior to the matter being adjourned, I also asked Crown counsel and amicus to consider whether a date should be set for a hearing to consider Mr. Barton’s release pending the Crown’s application to have him declared a long-term or dangerous offender. My concern was that Mr. Barton has been in custody for over 2.5 years. Applying the standard credit of 1.5 days, R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Barton has served the equivalent of 3.75 years. This is in excess of the low penitentiary sentence the Crown gave as its position on sentence, absent its application to have Mr. Barton declared a dangerous or long-term offender.

THE ISSUE

12In advance of the April 24, 2026, appearance, the Crown filed an application record and factum in support of its request for a s. 752.1 assessment. The application record included Mr. Barton’s criminal record.

13On April 24, 2026, the Crown and amicus submitted that the test for an assessment under s. 752.1 was met. Counsel Ms. Johnson appeared for Mr. James Miglin and advised that Mr. Miglin had been retained for purposes of the dangerous/long-term offender application. Defence counsel took no position on whether the test for an assessment was met.

14Having reviewed Mr. Barton’s criminal record, I questioned whether there was any jurisdictional concern, given that the requirements in s. 752.01 of the Criminal Code were not met. Section 752.01 of the Criminal Code provides:

Prosecutor’s duty to advise court

752.01 If the prosecutor is of the opinion that an offence for which an offender is convicted is a serious personal injury offence that is a designated offence and that the offender was convicted previously at least twice of a designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the prosecutor shall advise the court, as soon as feasible after the finding of guilt and in any event before sentence is imposed, whether the prosecutor intends to make an application under subsection 752.1(1).

15While s. 752.01 of the Criminal Code requires notice in circumstances where “the offender was convicted previously at least twice of a designated offence and was sentence to at least two years of imprisonment for each of those convictions”, Mr. Barton has only had one prior penitentiary sentence.

16Counsel for the Crown submits that based on the decisions of R. v. Keepness, 2010 SKQB 118, at para. 15, and R. v. States, 2015 ONSC 3265, at para. 81, the duty to notify under s. 752.01 of the Criminal Code is not a prerequisite for an application. Rather, the test remains the two criteria set out in s. 752.1. Section 752.1 is the gateway to the dangerous offender/long term offender regime and provides as follows:

752.1 (1) On application by the prosecutor, if the court is of the opinion that there are reasonable grounds to believe that an offender who is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2)(a) might be found to be a dangerous offender under section 753 or a long-term offender under section 753.1, the court shall, by order in writing, before sentence is imposed, remand the offender, for a period not exceeding 60 days, to the custody of a person designated by the court who can perform an assessment or have an assessment performed by experts for use as evidence in an application under section 753 or 753.1. [Emphasis added]

17In States, Quigley J. held:

… as the decision in Keepness shows, the thresholds in s. 752.01 do not establish a base for reprehensive conduct that must be met or exceeded before an offender might be found to be a dangerous offender. As noted above, and it bears repeating, the fact that the offender has not served a penitentiary sentence does not mean that he is not a person who might be found to be a dangerous offender, and that is the only requirement that must be met for the assessment order to issue.

18In my view, the decision of States is binding on me by virtue of the doctrine of stare decisis: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460. The decision of Keepness adopted by Quigley J. in States described s. 752.01 as creating “an early notice requirement on the Crown in the circumstances articulated in the section”, at para. 15. In Keepness, the Court explicitly stated that the “Crown is entitled to ask for an assessment order pursuant to s. 752.1(1), even though Mr. Keepness does not meet the criteria in s. 752.01, and it then falls to the court to determine if an assessment should be ordered, having regard to the requirements of s. 752.1(1)”, at para. 16.

ANALYSIS

(i) Serious Personal Injury Offence

19The first pre-requisite is to determine whether Mr. Barton has been convicted of a serious personal injury offence.

20The term “serious personal injury offence” is defined in s. 752 of the Criminal Code as follows:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, …

21The applicant Crown relies on Mr. Barton’s finding of guilt for the offence of assault with a weapon as a serious personal injury offence. For purposes of ordering an assessment, the onus of establishing that the predicate offence is a serious personal injury offence is not proof beyond a reasonable doubt.

22The offence of “assault with a weapon” is punishable by a maximum of 10 years’ imprisonment. The very nature of the offence involves the use or attempted use of violence against another person – in this case – Jonathan Nelson, a staff member of the ODSP office where Mr. Barton attended on August 11, 2023. As found by the Supreme Court of Canada in R. v. Steele, 2014 SCC 61, [2014] S.C.J. No. 61, at paras. 39-41 and 51, to constitute a serious personal injury offence the act need not involve the actual application of force. Nor does the violence that is used, or attempted, need to be “serious”. Rather, “any level of violence is sufficient”. Further, whether an offence constitutes a “serious personal injury offence” is contextual – a determination that is informed by the totality of the circumstances.

23In this case, based on the video recording of the index offence, it is evident that Mr. Barton, while brandishing a large six-to-nine-inch knife that he removed from its sheath, tapped the partition window three times in close proximity to Mr. Nelson and then struck the countertop hard enough to cause damage. Mr. Nelson ducked. Mr. Barton sat down, sheathed his knife, but then returned to the window and spoke with Mr. Nelson while waving the knife. He then unsheathed his knife and stabbed the countertop while demanding to speak with a manager. Although Mr. Nelson was protected by the partition, Mr. Barton’s conduct clearly impacted Mr. Nelson, whose physical reaction was to duck. I am satisfied that this act constituted an act of violence and while not necessary to make this determination, I further find that this conduct likely inflicted severe psychological damage to Mr. Nelson as evidenced by Mr. Nelson’s evasive action. In R. v. Tremblay, 2010 ONSC 486, at paras. 75-77, Karakatsanis J. (as she then was) found that “severe psychological damage requires, as a minimum, a substantial interference with the victim's physical or psychological integrity, health or well-being” but that this did not require expert evidence. In my view, having considered the videotape of the incident and Mr. Nelson’s response, I am satisfied that Mr. Barton’s conduct was likely to inflect severe psychological damage. In fact, this would appear to have been Mr. Barton’s intent — Mr. Barton wanted immediate attention and chose to get it through fear.

(ii) Reasonable Grounds to Believe that Mr. Barton Might be found to be a Dangerous or Long-Term Offender

24The second pre-requisite requires a determination that there are “reasonable grounds” to believe that Mr. Barton might be found to be a dangerous offender under s. 753, or a long-term offender under s. 753.1. “Reasonable grounds to believe” requires that I have a “reasonable suspicion” that Mr. Barton might be found to be a dangerous offender or long-term offender. This is a very low threshold and requires only that, after weighing and balancing all the relevant considerations, including the evidence, I am satisfied that Mr. Barton be remanded for observation: R. v. McArthur, [1997] O.J. No. 5146 (Gen. Div.), at para. 20, reversed on other grounds (2004), 2004 8759 (ON CA), 184 O.A.C. 108.

25Provided there is a prospect that Mr. Barton might be found to be a dangerous or long-term offender, this will suffice for the “reasonable grounds” threshold.

26Although the Criminal Code provides three routes under which an offender may be designated a dangerous offender, in this case, the Crown relies on two, namely:

753(1)(a)(i): a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour, and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, [or]

753(1)(a)(ii): a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behavior[.]

27In support of its position that Mr. Barton’s conduct shows a “pattern of repetitive behaviour” for purposes of the test under s. 753(1)(a)(i), the Crown relies primarily on Mr. Barton’s extensive criminal record which consists of over 100 convictions, approximately 21 of which involve some form of assaultive behaviour and many of these involving strangers. The index offence also involves an assault against a stranger in circumstances where Mr. Barton was subject to a probation order. The Crown argues that this shows a pattern of repetitive behaviour which shows a failure to restrain his behaviour and a likelihood of causing death or injury to others, or a likelihood of inflicting severe psychological damage.

28In support of its position that Mr. Barton’s conduct shows a “pattern of persistent aggressive behaviour” for purposes of s. 753(1)(a)(ii), the Crown relies on the same history of criminal offending which it argues shows a substantial degree of indifference by Mr. Barton to the reasonably foreseeable consequences of his behaviour. In particular, the Crown relies on:

Mr. Barton’s violent offending behaviour spans his entire adult life with only one significant gap, between 2002 and 2009.
Mr. Barton’s indifference is reflected in his verbal abuse to victims, including referring to a woman he forcibly raped as a “liar” and a “ho” during his arrest, as detailed during the sentencing proceedings in 2002. He told a female LCBO manager whom he assaulted that “he would have no problem doing it to her with one finger” (2017 sentencing). He threatened to kill a police officer’s daughter (2018 sentencing). And he has made other threats to kill persons, including police officers and their families (2008, 2018, 2021 and 2025 sentencing proceedings).

29The Crown further argues that Mr. Barton’s conduct has shown an escalating pattern of aggressive conduct toward staff at public offices. He has convictions for making graphic threats involving the use of guns at the Ontario Ombudsman’s Office in 2021 and 2023.

30A designation that an offender is a Dangerous Offender also requires prospective risk. In other words, Mr. Barton must pose a future threat: R. v. Boutilier, 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 45.

31While assessing future risk is always challenging, based on Mr. Barton’s prolific criminal record, I am satisfied that he poses a future risk. Mr. Barton has amassed over 100 convictions over the past three decades. It is clear that he lacks impulse control. To date, no sentence has deterred him from continuing his violent offending behaviour.

32I am further satisfied that there are reasonable grounds to believe Mr. Barton might be found to be a long-term offender. Pursuant to s. 753.1 of the Criminal Code, an offender can be declared a long-term offender if a court is satisfied that:

(i) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; and

(ii) there is a substantial risk that the offender will re-offend; and

(iii) there is a reasonable possibility of eventual control of the risk in the community.

33Without an assessment, I cannot determine whether there is any reasonable possibility of eventual control of the risk posed by Mr. Barton in the community. However, based on Mr. Barton’s criminal record, and the material filed, I am satisfied that a sentence of two or more years may be appropriate and that there is a substantial risk that Mr. Barton will re-offend.

34At this preliminary stage, I am mandated to remand Mr. Barton if satisfied that the test under s. 752.1 has been met. As I am satisfied that the test is met, I have no discretion at this stage. Whether he is ultimately found to be a dangerous or long-term offender is an entirely different issue.

35Based upon all the evidence presented at the hearing, the supporting material filed, Mr. Barton’s past criminal conduct, and the offences which are the subject of this hearing, I find as follows:

(1) Mr. Barton has demonstrated a pattern of behaviour, including the offences which are the subject of this hearing, that involves serious personal injury by the use of violence against other persons. Further, his criminal conduct has endangered the lives or safety of other persons.

(2) Mr. Barton’s criminal offences demonstrate conduct capable of inflicting severe psychological damage on his victims.

36In conclusion, I am of the opinion, after weighing and balancing the foregoing considerations, including the evidence, that Mr. Barton might be found to be a dangerous offender pursuant to s. 753 of the Criminal Code. Furthermore, I find it appropriate to remand Mr. Barton for observation, pursuant to s. 752.1.

37I appreciate that Mr. Barton may not wish to be remanded. There is also a possibility that he may not co-operate with any efforts to assess him. However, such considerations do not detract from the legal obligation of the court to order an assessment once the criteria in s. 752.1 of the Criminal Code are met as they are in this case.

CONCLUSION

38For the foregoing reasons, the Crown application is granted. Mr. Barton will be ordered remanded into custody for purposes of an assessment for a period of 60 days.

39I understand that the Crown has provided a list to defence counsel of three potential assessors who are available to conduct the assessment. The matter is adjourned so that I can hear further submissions as to who the named assessor should be. In making this determination, I am guided by the principles set out in the decision of the Court of Appeal in R. v. C. (K.), 2022 ONCA 738, which sets out factors that may be considered in determining the assess. These factors include: the qualifications and experience of the proposed assessor, the nature and location of the assessment and the parties’ perception of that person’s neutrality. What is key is that I am not simply to defer to the assessor proposed by the Crown.

J.M. Barrett

Released: May 8, 2026