Re Brandon McDougall, 2025 CanLII 120421

Re: Brandon McDougall

ORB File No: 8569

Hearing held on: Thursday, September 25, 2025

Place of hearing: Southwest Centre for Forensic Mental Health Care 401 Sunset Drive, St. Thomas

Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. G. Beasley Members: Dr. T. Verny Dr. R. Chandrasena Ms. K. Tomaszewski Ms. M. McKinnon

Parties Appearing:

Accused: Brandon McDougall Counsel: Mr. C.P. Dobson

The person in charge of hospital: Counsel: Ms. J. Zamprogna

Attorney General of Ontario: Counsel: Mr. D. Rows

REASONS FOR DISPOSITION

(Dated November 20, 2025)

Introduction

1. On May 15, 2024, the accused, Brandon McDougall, was found unfit to stand trial on charges of indecent act (x2), contrary to the Criminal Code of Canada. By reason of a Disposition of the Ontario Review Board (“ORB”), dated July 26, 2024, Mr. McDougall was ordered to be detained at the Southwest Centre for Forensic Mental Health Care (“Southwest Centre”), St. Joseph's Health Care, London, with hospital and grounds privileges, indirectly supervised; and to enter the community of Elgin and Middlesex Counties, accompanied by a person or delegate approved by the person in charge of the Southwest Centre. Mr. McDougall was also permitted to attend and participate in a drug and alcohol rehabilitation treatment program anywhere in the Province of Ontario.

2. On September 25, 2025, the ORB convened a hearing at the Southwest Centre for the purpose of the annual review of Mr. McDougall’s Disposition pursuant to ss. 672.48(1) and 672.81(1) of the Criminal Code. Prior to the commencement of the hearing, Mr. McDougall’s counsel, Mr. Dobson, requested that Mr. McDougall be permitted to be absent from the hearing. Mr. Dobson stated that Mr. McDougall finds the hearing to be unduly stressful and that he had provided Mr. Dobson with instructions to proceed in his absence. Counsel for the hospital, Ms. Zamprogna and counsel for the Attorney General of Ontario, Mr. Rows, did not object to Mr. McDougall’s absence. Accordingly, the hearing proceeded in Mr. McDougall’s absence pursuant to s. 672.5(10)(a) of the Criminal Code.

Alleged Index Offences

3. The circumstances of the alleged index offences are taken from the Hospital Report as follows:

“The following information was taken from the Charge Sheet from the London Police Service, dated September 15, 2023:

Charge 1 - Commit an Indecent Act in a Public Place

On September 14th, 2023, at approximately 3:45 pm the accused attended a splash pad at 1045 Wonderland Road, North, London, Ontario. Due to the time of the day, this splash pad was crowded with numerous members of the public including children.

While at the splash pad and in plain view, the accused pulled his pants down and squatted while defecating in front of numerous children who were enjoying the splash pad. This act was observed by T.L.T. who called police at 4:55 pm. T.L.T. informed police that she saw the accused with his pants down and saw his penis out. T.L.T. stated that she then saw the accused peeing before he left the area on foot.

At 4:10 pm PC STORY attended 119 Sherwood Forest Square which is located next to the above address and conducted a canvass of the area in an attempt to locate the accused.

At 4:16 pm PC STORY located the accused who was matching the description and placed him under arrest for one count of Indecent Acts.

At 4:25 pm PC STORY provided the accused with his rights to counsel and caution to which he advised he understood. The accused declined to speak with a lawyer.

After being cautioned the accused made an utterance to PC STORY at this time stating that he was just "pooping and peeing" and that he did not think anyone could see him.

At 4:44 pm PC STORY transferred custody of the accused to PC AQUI-SOMAI.

At 4:58 pm PC AQUI-SOMAI transferred the accused to the London Police headquarters detention unit located at 601 Dundas Street, London, Ontario.

At 5:25 pm the accused arrived at cells.

At 5:35 pm Sergeant Brown paraded and booked the accused into cells.

At 8:21 PM the accused was interviewed by Detective Serpa of the Sexual Assault and Child Abuse Section. The accused admitted to defecating near the splash pad. He said he was attracted to the sound of children's voices and patted his crotch area saying, "it makes me tingly". When Detective Serpa was explaining that he would be released with conditions to not be at public parks or areas where children would be present, he said he would not comply with the conditions.

The accused's identity was confirmed by a London Police Digitized photo on file.

As a result of the investigation the accused is charged with 1 count of Indecent Act contrary to section 173(1) of the Criminal Code of Canada.

The following information was taken from the Charge Sheet from the London Police Service, dated November 12, 2023:

Charge 2 – Commit an Indecent Act in a Public Place

At 2:11 P.M. on November 9, 2023, the accused was seen exposing himself in front of a business located at 1205 Highbury Ave North in the city of London. The accused proceeded to enter into the Tim Hortons located at 1181 Highbury Ave North while still exposing himself. Numerous citizens contacted the London Police Service as a result.

At approximately 3:20 P.M. the accused proceeded to the complex of 1200 Cheapside Street and laid down between unit 1 and 2, still visible to the public. The accused pulled his pants down all the way to his ankles and began masturbating while laying in plain view to everyone in the complex. Kristin Phoenix was walking through the complex to pick his child up from school and observed the accused. Phoenix attempted to get the attention of the accused by yelling out to him. The accused ignored the complainant and continued to touch his exposed penis.

At 3:25 P.M. officers were dispatched to investigate.

At 3:30 P.M. officers arrived at 1200 Cheapside Street and observed the accused laying in between the concrete porches of unit 1 and 2. Officers observed the accused to have his pants around his thighs with his genitals exposed.

At 3:32 P.M. Constable Worby placed the accused under arrest for indecent acts and handcuffed him to the rear. The accused was subsequently read his Rights To Counsel and Caution.

At 4:07 P.M. the accused was released by way of undertaking by constable Worby.

As a result of this investigation the accused is charged with one count of indecent acts contrary to section 173(1) of the Criminal Code of Canada.

The accused was identified verbally and by way of London Police Service Mug shot.”

Criminal History

4. Mr. McDougall has one prior criminal conviction before the alleged offences:

2022-11-22 London, ON

Arson with Disregard for Human Life Sec 433(A) CC

Suspended Sentence & Probation 3 Years & Mandatory Weapons Prohibition

Current Diagnoses

5. The current diagnoses are taken from the Hospital Report as follows:

Schizoaffective Disorder, Bipolar Type

Methamphetamine Use Disorder

Background and Personal History

6. Mr. McDougall’s background and personal history are comprehensively reviewed in the Hospital Report which was filed as an exhibit. Accordingly, there will be no extensive reference to those details in these Reasons. Mr. McDougall was born in Sarnia and has one older brother. His biological mother died by suicide when he was one year of age. Mr. McDougall reports a positive relationship with both his father, his stepmother, and his older brother. Mr. McDougall received a high school diploma but did not attend post-secondary education. During his high school years, he was involved for two years with the army reserves. After high school he worked for about seven years at Walmart. He was dismissed from that employment as a result of inappropriate sexual comments made to a co-employee. He has not had steady employment since.

7. As set out in the Hospital Report, Mr. McDougall first became involved with mental health treatment when he was about 16 years of age. There were multiple suicide attempts which Mr. McDougall attributed to his becoming overwhelmed with emotion. Mr. McDougall has a substance abuse history of significance. He indicated that he uses substances to feel happy. He endorsed experiencing seizures secondary to cocaine use approximately eight years ago. Following his arrest on the alleged index offences set out above, Mr. McDougall was admitted to St. Joseph's Healthcare – Parkwood, where he remained until his initial ORB hearing.

Position of the Parties

8. At the outset of the hearing Ms. Zamprogna stated that in the opinion of the hospital and the treatment team, Mr. McDougall continues to be unfit to stand trial and that the necessary and appropriate Disposition is a continuation of the Detention Order without amendment. Both Mr. Rows and Mr. Dobson supported the opinion and recommendations of the hospital.

Evidence

9. The evidence on behalf of the hospital was presented by Dr. Malka. She is Mr. McDougall’s attending psychiatrist and the co-author of the Hospital Report which was filed as an exhibit. Dr. Malka stated that there are no updates to the Hospital Report since its production. Dr. Malka said that there have been no changes in Mr. McDougall’s diagnosis or improvements in his psychosis. Mr. McDougall has no insight into his major mental illness. At the present time, Mr. McDougall is incapable to consent to treatment, and his Substitute Decision Maker (SDM) is his father. Dr. Malka outlined the changes in Mr. McDougall’s medication regimen which have led to some improvement in his mood stabilization. He does continue to experience episodes of mania, particularly when he manages to access large amounts of soft drinks. This results in a decline in his mental status. Dr. Malka said that Mr. McDougall will accumulate as much pop as he can, up to 10 bottles, and consume them one after the other in rapid succession. Dr. Malka stated that this is partially an addiction issue and also an attempt by Mr. McDougall to elevate his mood to a manic state. Dr. Malka said this is not an uncommon practice in individuals who are diagnosed with a schizoaffective disorder with mania.

10. Dr. Malka was asked if the antipsychotic clozapine was an option for Mr. McDougall. She stated that this is a direction that the treatment team would like to take but that Mr. McDougall’s SDM, his father, is resistant. Mr. McDougall’s father has expressed the view that if Mr. McDougall were to be treated with clozapine, then he might become fit and would have to stand trial on the alleged offences. Given this expressed position by the SDM, the treatment team are exploring other possible options in order to provide Mr. McDougall with the treatment he requires.

11. Dr. Malka said that Mr. McDougall would not take any medications without strict supervision. He has indicated that the only reason he takes the medications is because “it makes meth feel better.” He does not take the medication because of his illness. Dr. Malka said there is an exacerbation of Mr. McDougall’s symptoms when he consumes methamphetamine and/or cocaine. He has no insight into the effects of substance use. Mr. McDougall has told the treatment team he intends to continue to use substances in the future. Dr. Malka agreed with the overall clinical assessment of risk set out in the Hospital Report which states that Mr. McDougall continues to pose a risk of serious physical or psychological harm to members of the public.

12. Dr. Malka stated that she last assessed Mr. McDougall for his fitness to stand trial several days before the hearing. She said that in her opinion Mr. McDougall remains unfit to stand trial at this time. Although he is aware of the charges against him, he does not know why he is in the hospital. Mr. McDougall has expressed that he does not need to know how the court process works because he has no intention of attending court. He said the only reason he is in the hospital is because the court does not want him to get naked in the courtroom. He states that the public is on his side and that he has too much power and too much money to be taken to court. Dr. Malka said that Mr. McDougall can answer the Taylor test questions and has a vague understanding of the pleas and options available to him. He knows what an oath is but at the same time states that perjury is okay. Mr. McDougall believes that the court will profit from people perjuring themselves in the court progress. Dr. Malka stated that in her opinion Mr. McDougall has no reality-based understanding of the court process. He is unable to properly instruct counsel in his defence because of his delusional symptoms. Mr. McDougall has stated that he does not need a lawyer in any event.

13. Dr. Malka stated that in the opinion of the treatment team a Detention Order is required in order to protect the safety of the public. In the absence of strict supervision Mr. McDougall would stop taking his medication, would use substances such as methamphetamine and cocaine and indulge in the same behaviour as set out in the alleged index offences. Mr. McDougall had earned level 1 privileges in the hospital but then stated that he was planning to abscond and they were suspended.

14. Mr. Rows did not have any questions for Dr. Malka.

15. In response to a question from Mr. Dobson, Dr. Malka stated that Mr. McDougall has indicated that he would be prepared to accept the antipsychotic clozapine. However, Dr. Malka added that Mr. McDougall has agreed because he believes that this will help him get released from the hospital. Once out of the hospital, it is likely that he will stop taking any antipsychotic medications and resume his substance use.

16. Neither Mr. Rows nor Mr. Dobson called evidence at the hearing.

Submissions

17. At the conclusion of the evidence, all counsel reiterated the joint submission made at the outset of the hearing.

Analysis and Disposition

18. The threshold issue for the Board is whether or not Mr. McDougall is fit to stand trial. For many years, the assessment of an accused to stand trial utilized what became known as the Taylor Test , often summarized as the “limited cognitive capacity test.” The test was essentially a series of questions about the role of the parties to the trial, the meaning of an oath and the potential consequences. In 2023 the Ontario Court of Appeal released a decision of a five justice panel in R. v. Bharwani 2023 ONCA 203. The decision expanded the factors to be considered in assessing fitness and found that an accused must have a reality based understanding of the trial process. This decision was in turn appealed to the Supreme Court of Canada which released its judgment in R. v. Bharwani, 2025 SCC 26 on July 25, 2025. In upholding the decision of the OCA, Justice O’Bonsawin , writing for the majority in a 6:3 decision stated:

6I disagree. As I will explain, an accused is fit to stand trial when they are able to make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so. Conducting a defence includes making decisions that an accused must always make personally and those which relate to the exercise of their right to full answer and defence, such as decisions about pleas, the mode of trial, selection of counsel, whether to testify, whether to call or cross-examine witnesses, and closing submissions, among others. The capacity required to make those decisions is a reality-based understanding of the nature or object of the proceedings and their possible consequences, an ability to understand the available options and their consequences, and an ability to select between those options when making decisions. Fitness to stand trial does not require an accused to make decisions in their best interests. Rather, it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder. Transient mental health symptoms do not necessarily compromise an accused’s ability to conduct a defence. The focus is always on assessing the extent to which an accused’s mental disorder impairs their understanding of reality when making and communicating decisions in their defence

And in summary

77To conclude, the text, statutory context, and purpose of the definition of “unfit to stand trial” support an interpretation of the capacity threshold that requires an accused to be able to make reality-based decisions in the conduct of their defence and intelligibly communicate these decisions to counsel or the court. This necessitates a reality-based understanding of the nature or object and possible consequences of the proceedings, as well as an ability to understand the available options and their consequences, and to select between those options when making decisions. The accused is not required to make decisions in their best interests, but cannot be overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder when making and communicating these decisions.

19. The Board is unanimous in accepting the uncontradicted evidence of Dr. Malka that Mr. McDougall remains unfit to stand trial at this time. Although he expresses a vague understanding of the Taylor type questions and the options available to him, Mr. McDougall’s delusions overwhelm his ability to have a reality-based understanding of the court process. He believes that his money and wealth will overcome any need for him to attend trial. When asked about the meaning of an oath, Mr. McDougall expresses an understanding of perjury but then goes on to elaborate that he believes the court could make a profit out of witnesses committing perjury in the trial process. The Board accepts Dr. Malka’s opinion that Mr. McDougall would not be able to instruct counsel to provide a defence to the allegations. In any event, Mr. McDougall has expressed that he does not need a lawyer as he has no intention of going to court. The evidence is clear and unequivocal that Mr. McDougall is unfit to stand trial at this time.

20. Having found Mr. McDougall unfit to stand trial, the Board is charged with the responsibility of crafting the necessary and appropriate Disposition pursuant to the criteria set out in s. 672.54 of the Criminal Code. Mr. McDougall has a serious and persistent mental illness, schizoaffective disorder. He continues to present with active symptoms of his illness, including hallucinations, delusions, and disorganized behaviour. These symptoms were present at the time of the alleged index offences and are connected to his ongoing violence risk. He continues to display behavioural and cognitive instability in response to his psychotic symptoms. Mr. McDougall has a history of medication non-adherence. Although he expressed a willingness to accept the antipsychotic clozapine, he did so in the belief that this will assist him in getting out of hospital so that he can resume substance use. Mr. McDougall has no insight into his mental illness, his need for treatment or violence risk. There would be no air of reality to considering a conditional discharge at this time. The Board is unanimous in accepting the joint submission of the parties that the necessary and appropriate Disposition which is necessary to protect the safety of the public is a continuation of the current Detention Order without amendment.