Ontario Review Board
Re: Alexandre Desmarais
ORB File No: 8376
Hearing held on: Tuesday, December 17, 2024
Place of Hearing: Royal Ottawa Mental Health Centre
Pursuant to: Section 672.81(1) of the Criminal Code
Before: Alternate Chairperson: Ms. M. Labrosse Members: Dr. S. Lessard Dr. R. Cormier Mr. D. Sandor Mr. R. Rainboth
Parties Appearing:
Accused: Alexandre Desmarais Counsel: Mr. J. Boss
Person in charge of the hospital: Representative Dr. S. Gulati
Attorney-General of Ontario: Counsel: Mr. J. Wright
REASONS FOR DISPOSITION
(Dated February 27, 2025)
Introduction
On August 23, 2023, Alexandre Desmarais, was found not criminally responsible on account of mental disorder on charges of assault causing bodily harm, mischief – damage to property, and robbery, all contrary to the provisions of the Criminal Code of Canada. Mr. Desmarais is currently subject to a disposition of the Ontario Review Board dated December 6th, 2023, detaining him at the Secure Forensic Unit, Royal Ottawa Mental Health Centre (hereinafter referred to as “the Hospital”) with privileges up to and including that of living in the community in accommodation approved by the person in charge.
On December 17th, 2024, the Board convened a hearing at the Hospital to review the provisions of that disposition. Mr. Desmarais was present assisted by his lawyer Mr. Jonathan Boss.
The record for the hearing included the Revised Notice of Hearing, Reasons for Adjournment dated December 3, 2024, the last Disposition mentioned above, and the Reasons for that Disposition. On the consent of all parties, a Hospital Report, dated December 6th, 2024, was entered into evidence as Exhibit 1.
The parties were canvassed for their initial positions at the beginning of the hearing. Dr Gulati, Mr. Desmarais’ treating psychiatrist, spoke for the Hospital. He took the position that Mr. Desmarais continued to represent a significant threat to the safety of the public as that term is defined in section 672.5401 of the Criminal Code and as it has been explained by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625. He further took the position that, having regard to the primary objective of ensuring the safety of the public it was necessary to maintain Mr. Desmarais’ detention disposition in order to manage the current level of risk, and that this disposition was the only appropriate disposition available to the Hospital having regard to Mr. Desmarais’ mental health and other needs, including the ultimate objective of reintegrating him into the community.
The representative of the Attorney General joined Dr Gulati in that position. Counsel for Mr. Desmarais reserved pending receipt of the evidence.
For the following reasons, the Board has concluded that Mr. Desmarais continues to represent a significant threat to the safety of the public and that a continuation of the current disposition is the only order that adequately addresses the objectives set out in section 672.54 of the Criminal Code. In arriving at the conclusion that such a disposition is necessary to assure the safety of the public as a primary objective, and to ensure that Mr. Desmarais’ mental health and other needs are met, the Board has considered Mr. Desmarais’ criminal and psychiatric history, observations made by the treatment team over the course of this past review period, and the positive direction and improvement Mr. Desmarais has shown since being admitted to the Hospital.
Evidence at the Hearing
The evidence for the hearing came from the Hospital Report mentioned and the live testimony offered by Dr Gulati.
Turning first to the Hospital Report, it contains a summary of the index offences that brought Mr. Desmarais under the jurisdiction of the Ontario Review Board. These are consistent with those incorporated into last year’s Reasons for Disposition.
[On May 2, 2023] at about 13h45 PM, police received a 911 call stating that a male was being assaulted at the area of 490 Rideau Street. Officers arrived on the scene and observed Mr. Desmarais on top of the victim, punching him in the facial area while also yelling “give me my wallet.” Officers interjected in the assault, removing Mr. Desmarais and arresting him for the aforementioned charges. It was noted that the victim was elderly and smaller in stature than Mr. Desmarais, and that he appeared dazed and confused while also suffering a laceration to his forehead and the beginnings of a black eye. The victim received medical attention from paramedics on the scene prior to being transported to hospital due to his injuries. The victim reported that his cell phone was broken beyond repair from the assault. The victim also explained that he entered the Quickie store to take cash from the ATM when he was approached by Mr. Desmarais, who demanded his wallet. The victim added that he went outside to the bus shelter, and Mr. Desmarais followed him and began assaulting him while continuing to demand his wallet. There was no stolen property located on Mr. Desmarais upon his arrest. ”
- Mr. Desmarais’ personal history is set out in detail in the Hospital Report. It is summarized in last year’s Reasons for Disposition. As such, it is not necessary to repeat what has been indicated already on the record. For the purposes of these Reasons, it is sufficient to note the following:
- Mr. Desmarais was born in Quebec to a family that consisted of him, his mother, his father, and two brothers. Medical records indicate that Mr. Desmarais was the victim of several forms of child abuse through to 2003. He has a strained relationship with his mother, but has been supported as to his mental health in the past by one of his brothers. He is currently unemployed though he has worked on and off in roofing for the brother mentioned. He was laid off by that brother owing to his mental instability, poor work performance and use of cannabis while on the job. He has a history of homelessness and of noncompliance with recommended medications.
- Mr. Desmarais has a limited criminal record. He was incarcerated in December 2021 and has been on probation for assault and other charges from around that time. There is some indication that his mother was the victim of the assault.
- Mr. Desmarais’ first record of struggle with major mental illness dates back to 2014 when he was diagnosed with schizophrenia. He presented to the Ottawa Hospital with psychotic episodes that year and again in 2015 when he was made the subject of a Community Treatment Order. He has indicated past diagnoses of paranoid schizophrenia and bipolar disorder. His current diagnosis is
- Schizophrenia – in remission
- Cannabis use disorder – severe, in early remission
- Amphetamine use disorder – severe, in early remission.
- Mr. Desmarais is currently capable of consenting to treatment and of managing his finances.
The Hospital Report’s update begins at page 17. It notes that Mr. Desmarais has made some positive progress over the course of the past review period. In the early stages of that period, he settled well in the Hospital, maintained a baseline of stability and was generally cooperative with Hospital Staff. He used passes appropriately and by May 13, 2024, he was attending group therapy, shopping in the community and was involved in cooking. He was referred to the Grove group home and was working on relapse prevention. He did not endorse any thoughts of violence.
By summer 2024, Mr. Desmarais began taking extended leaves of absence at the Grove. Positive reports from Grove staff were received. Mr. Desmarais was abstaining from illicit substances and was testing negative on all urine drug screens. He maintained positive contact with his brother. By August 6, 2024, Mr. Desmarais was fully integrated into the Grove Transitional Rehabilitation Housing Program. While he did continue to exhibit some challenging behaviors associated with his major mental illness, in general he showed an ability to develop skills and to fix goals to meet program requirement. Areas of concern included his budgeting, awareness of people who may seek to take advantage of him, mood swing regulation, communication and setting of appropriate boundaries when dating, and insight into his mood stability and ability to cope with mental illness.
The Hospital Report sets out the several achievements Mr. Desmarais has made since his time at the Grove. The Board was pleased to read that he is engaging well, respecting rules, staying away from criminal behaviours, abstaining form the use of substances and is taking his medication on time. He has been open with regard to his craving and has reduced smoking cigarettes. He is clean and exercises good hygiene. He is described as likable and social, though he has a limited social network. Recommendations from the Grove include ongoing support of Mr. Desmarais’ desire to be transferred to an independent apartment, assistance with budgeting, and help with stress/anxiety and mood-swing management. They have recommended professional social support through therapy groups and education, and have indicated that intensive support will be needed in the areas of goals, planning, budgeting and the establishing of boundaries with individuals and peers.
The Hospital’s Clinical Risk Assessment begins at page 22 of the Hospital Report. While it notes the positives mentioned, it also highlights the intermittent symptoms of major mental illness Mr. Desmarais continues to experience, namely paranoia and anxiety. The Hospital Report explains that these symptoms are at risk of worsening in response to significant stresses such as those Mr. Desmarais is likely to experience as he transitions to independent accommodations and seeks to expand his social connections. The Hospital Report’s Clinical Risk Assessment also explains that Mr. Desmarais remains quite vulnerable to his addictions. It notes that the use of cannabis and other legal and illicit substances pose a real clinical risk of rapid decompensation where he is concerned. The Hospital Report concludes that relapse for Mr. Desmarais could happen without warning and related decompensation would be so quick that an ability to issue a form 49 is essential to be able to manage the resultant risk to the public.
In his update given to the panel, Dr Gulati explained that Mr. Desmarais continues to reside at the Grove – an accommodation that provides 24-hour supervision. His transition to that residence in July 2024 was positive. Mr. Desmarais continues to test negative for all substances. He is open with cravings and attends group programming. He is physically active and, though vulnerable to periods of anxiety, he demonstrates good insight. Dr Gulati confirmed that the last few months provide a good trajectory for Mr. Desmarais. He explained that, though these are still early days in terms of the type of progress being made, what he is seeing is supportive of liberal privileges in the context of a detention disposition and bodes well in terms of a conditional discharge recommendation at the next review. He explained that Mr. Desmarais’ history is the concern. In the past, Mr. Desmarais has relapsed quickly into substance use, promptly disengaged with the treatment team and became noncompliant with his medications. His decompensation has been very rapid and insufficiently managed by the provisions of the Mental Health Act. Against this history, Dr Gulati is unable to recommend a conditional discharge at this time.
Dr Gulati also testified of Mr. Desmarais’ history of struggles with homelessness and of the transitional nature of the accommodations provided by the Grove. He highlighted the significant supports Mr. Desmarais receives with regard to abstaining from the use of substances in this controlled environment. In his closing submissions, he maintained that Mr. Desmarais continued to represent a significant threat to the safety of the public and that, at this time, a detention disposition was necessary to assure the safety of the public (as a primary objective) and appropriate to ensure that Mr. Desmarais’ mental health and other needs are met.
The representative of the Attorney General joined the Hospital in that submission. He indicated that while Mr. Desmarais had made good progress, it was simply too soon to conclude that the provisions of section 672.54 of the Criminal Code could be satisfied with anything other than a liberal detention disposition at this time. He also highlighted the importance of supporting Mr. Desmarais in his abstinence and transition into approved accommodations following his discharge from the Grove, given the transitional nature of Grove-housing.
Counsel for Mr. Desmarais conceded the threshold issue of significant threat and alerted the panel, fairly, to the serious consideration that should be given to the possibility of a conditional discharge under the circumstances. Mr. Desmarais, he argued, is doing very well, “perhaps well enough to deserve a conditional discharge”. He is compliant with oral medications, is abstaining from the use of substances and it may well be, he argued, that a conditional discharge would satisfy the objectives of section 672.54 of the Criminal Code as the least restrictive option available to the Board.
Counsel for Mr. Desmarais did acknowledge the concern raised by the Hospital that these were “early days”, but argued that 5 months of sobriety at the Grove was not insignificant. His arguments largely advocated for a conditional discharge and, in the alternative, supported a detention disposition maintaining broad privileges.
Conclusion and Disposition
The Board carefully deliberated on this matter. The threshold issue of significant threat is an onerous one that was examined in detail by the panel notwithstanding the helpful joint submission received in that regard. The panel was mindful of the direction provided in Winko that a patient is never under a burden to disprove significant threat. It was mindful that significant threat must consist of a real likelihood of further serious offending behaviour that would give rise to serious harm to the public.
In the case of Mr. Desmarais, the Board arrived at its own conclusion that he continues to represent a significant threat to the safety of the public. It noted that Mr. Desmarais has suffered from a serious mental illness for more than ten years. His mental illness led to the commission of a serious assault on his mother for at least a second time. The index offences could have resulted in much more serious injuries to his mother. Although he is currently stable and compliant with his medication, this is recent and has only been achieved in a very controlled environment. His history of substance use, and mental illness includes quick relapses followed by noncompliance with recommended treatment, decompensation and periods of homelessness. While his engagement with the treatment team and successes with abstinence and medication compliance over the past 5 months is commendable, significant threat is still found in the fact that his housing is transitional and, absent a disposition there is a real likelihood in our view that he will return to the use of substances, become noncompliant with medications and treatment, decompensate and engage in the same types of behaviours that led to the commission of the index offences.
Turning to disposition, the Board also considered the provisions of section 672.54 of the Criminal Code, asking itself “could” the risk be managed under the auspices of a conditional discharge. In our opinion it could not at this time. In terms of ensuring the safety of the public, Mr. Desmarais’ history shows a pattern of rapid return to the use of substances that, in turn promptly motivate his disengagement from recommended treatment and mental decompensation similar to that manifest at the time of the commission of the index offences. This history forms important context to considerations surrounding his continued anxieties and responses to stresses that will increase as he transitions from the Grove into other approved accommodations. Thus, both in terms of assurance of public safety, and having regard to ensuring that Mr. Desmarais’ mental health and other needs are met, it is important that the Hospital be able to rapidly respond to any indications of return to substance use. They will need to monitor how transitional stresses impact on Mr. Desmarais’ anxieties and whether he will require further supports to manage the symptoms of his major mental illness. His treatment and medication compliance will need to be closely monitored as he is eventually reintegrated in the community. It will be important that the hospital approve where he will be allowed to reside and be able to expeditiously readmit him should this become necessary. The panel does not have jurisdiction to make an order that Mr. Desmarais reside in “accommodations approved” under the auspices of a conditional discharge. Furthermore, Mr. Desmarais’ history supports a conclusion that, at this time, assurance of public safety warrants a disposition that would quickly return him to the Hospital if there were any indication of substance use or decompensation. A detention order is therefore necessary.
Accordingly, taking into consideration the four factors set out in s. 672.54 of the Criminal Code of Canada, that is the need to protect the public from dangerous persons, the mental condition of the accused, his reintegration into society and his other needs, the Board is of the unanimous view that the least onerous and least restrictive Disposition is a detention order with the conditions stated in the Disposition.
The panel thanks all who participated in this hearing for their assistance and expresses its encouragement to Mr. Desmarais in light of the progress he has made. We join with his counsel, Dr Gulati and the representative of the Attorney General in expressing our hopes to him in anticipation of the next annual review.
An order will issue accordingly.
DATED this 27th day of February 2025, at the City of Toronto, in the Toronto Region.
Mr. D. Sandor Legal Member
Office of the Registrar
Ontario Review Board