Ontario Review Board
Re: A. (D.)
ORB File No: 8580
Hearing held on: Tuesday, February 24, 2026
Place of Hearing: Royal Ottawa Mental Health Centre
Pursuant to: Sections 672.48(1) and 672.81(1) of the Criminal Code
Before: Alternate Chairperson: Mr. J. Weinstein Members: Dr. R. Kunjukrishnan Dr. G. Boulais Mr. P. Hageraats Mr. R. Rainboth
Parties Appearing: Accused: A. (D.) Counsel: Mr. E. Lavictoire Person in charge of the hospital: Representative Dr. J. Gojer Attorney-General of Ontario: Counsel: Ms. M. Dufort
REASONS FOR DISPOSITION
(Dated March 12, 2026)
Introduction
[1]. On June 14, 2024, Mr. A. (D.) was found unfit to stand trial on charges of sexual assault, sexual interference with a person under 16, and invitation to sexual touching, all contrary to the Criminal Code of Canada (“Criminal Code”).
[2]. A. (D.) is currently subject to a Disposition of the Ontario Review Board (the “Board”), dated March 4, 2024, which discharged him conditionally, subject to certain terms and conditions. This Disposition required that he reside at a specified address and that he be in the company of his wife, or any responsible adult, whenever he leaves his home (paragraph 1(c)).
[3]. On February 24, 2026, the Board convened a hearing at the Royal Ottawa Mental Health Centre (“Royal Ottawa”) to conduct the annual review of the current Disposition.
[4]. A. (D.) was represented by his counsel, Mr. Eric Lavictoire. A. (D.), his spouse, and Mr. Lavictoire appeared by video conference.
[5]. A Hospital Report, dated January 24, 2026 (the “Hospital Report”), was entered as Exhibit 1.
[6]. In accordance with s. 672.48(1) of the Criminal Code, the Board had to decide whether A. (D.) is unfit to stand trial on the day of the hearing, within the meaning of s. 2 of the Criminal Code. Specifically, is A. (D.) unable, on account of mental disorder, to understand the nature, and the possible consequences, of the proceedings and to communicate with counsel? The other issues before the Board were whether A. (D.) is permanently unfit, and if so, whether he remains a significant threat to public safety.
[7]. If A. (D.) is found fit, he must be sent back to court. If he is found unfit, but not permanently so, the Board must make a Disposition that is necessary and appropriate, considering the criteria set forth in s. 672.54 of the Criminal Code. Similarly, if he is found to be both permanently unfit and a significant threat, the Board must determine the appropriate Disposition. If he is not found to pose a significant threat to public safety, he must be returned to court.
[8]. For the reasons set out below, and based on the evidence before us, the Board concluded that A. (D.) is unfit to stand trial. The Board further found that A. (D.) is both permanently unfit and a significant threat to the safety of the public.
[9]. The Board found that the necessary and appropriate Disposition to manage A. (D.)’s threat to public safety is a continuation of the existing Conditional Discharge with the deletion of paragraph 1(c). The Board ordered the continuation of a ban on reporting any information, pursuant to s. 672.501(1) of the Criminal Code.
Current Psychiatric Diagnosis
- Neurocognitive Disorder
Outstanding Charges
[10]. The circumstances giving rise to the outstanding charges are extracted from last year’s Board Reasons, as follows:
“The female victim, T.D., was 12 at the time of the alleged offences. She had been tutored by Mrs. D.A. from a young age for writing and math. At the time, A. (D.) was 82 years of age.
The alleged sexual touching occurred in the A. home in South Glengarry township.
On Thursday, July 16, 2020, Police Cst. Desrochers met with T.D. She related that she had been raised by her grandmother who lives a mile away from the A. residence. T.D.’s grandmother and A. (D.)’s wife, D.A., were friends. D.A. began tutoring the child at a young age until two years prior.
T.D. related that the incidents were on and off from 2018 to 2019 when she was 12 and 13 years of age. She recalled seven incidents when D.A. was in the house and she was in the A. pool, where she loved to swim. However, A. (D.) ruined it for her. She described an incident when she was swimming when A. (D.) allegedly grabbed her from behind with one arm. With his other arm, he placed his hand down the bottom of her swimsuit, touching her vagina and butt. A. (D.) would sometimes cup her breast with his hand. She would kick him off and scratch his arms. The other incidents, according to T.D., were basically all the same.
On Thursday, August 27, 2020, Cst. Desrochers arrested A. (D.) for the alleged offences. He was released on an undertaking on a promise to appear in court on September 22, 2020, at the Cornwall Courthouse.”
Personal and Medical Backgrounds
[11]. A. (D.)’s personal and medical backgrounds are detailed in the Hospital Report. They are accurately summarized in last year’s Reasons, as follows:
“A. (D.) and his spouse, D.A., live alone on their five-acre rural farm property outside Cornwall. There are no neighbours close by. They have been married since 1987. A. (D.) has two children from his first marriage, a son and daughter. Both are in their sixties.
A. (D.) reports he was diagnosed with prostate cancer in 2003. After undergoing numerous radiation treatments, the cancer went into remission.
Mrs. D.A. reports that, since 2020, her husband’s memory abilities have declined. She has provided numerous examples which are detailed in the hospital report.
A. (D.) has been using a four wheeled walker in recent years. He has only limited mobility. D.A. cannot leave her husband alone for very long. She worries about him falling. A. (D.) wears a medical alert (fall detection) device.
A. (D.) is hearing impaired. “
Course since Last Disposition
[12]. A. (D.)’s course since his last Disposition is detailed in the Hospital Report. The following extracted paragraphs are relevant to this hearing:
“Over this recording period, writer met with A. (D.) monthly along with his wife D.A., initially at their home in Williamstown and more recently in Cornwall. D.A.’s mother passed away in February 2025, prompting plans to relocate to her mother’s home in Cornwall, which both felt would be more suitable than their rural location. Moving to Cornwall provided the family with easier access to a variety of amenities, including easier transportation to their adult son’s specialized programing. M. has Down Syndrome and attends programming several days a week in Cornwall. This move required ORB approval, resulting in an amended disposition order reflecting their new Cornwall address. Writer also completed an approved accommodation assessment. This move took place in August 2025.
While they have largely settled into their new home, A. (D.) continues to have challenging days and is awaiting placement in a long-term care home, with assessments completed and options such as Glen Stor Dun Lodge being explored.”
Position of the Parties
[13]. Dr. Gojer (on behalf of the Hospital and as the most responsible physician) and counsel for the Attorney-General and for A. (D.) advised that this was a joint position; all agreed that A. (D.) is permanently unfit and remains a significant threat to public safety; the necessary and appropriate Disposition is a continuation of the existing Conditional Discharge with the deletion of paragraph 1(c).
[14]. There was discussion as to whether paragraph 1(a), which specifies a residence, should be deleted from the current Disposition, as the plan is for A. (D.) to be transferred to a long-term care facility. At the hearing, all parties agreed that paragraph 1(a) should remain in the current Disposition until a specific long-term care facility is proposed and the hospital has approved it. Should the treatment team find a long-term care facility that addresses the issue of significant threat, the Panel is agreeable, on the consent of all of the parties, to review the matter via a quick video conference or email. At that time, the decision can be made to add that facility’s name as a new, specified address to the existing Disposition. Should the team recommend a stay of proceedings, an early hearing would have to be called.
Evidence at the Hearing:
[15]. The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Gojer. Dr. Gojer appeared by video conference. He co-authored the Hospital Report and testified as follows:
a) A. (D.)’s physical progress has deteriorated quite recently. He has experienced several falls.
b) The hospital considered delaying this hearing until an appropriate long-term care facility could be found; however, the team was not sure how quickly they could find one.
c) The treatment team feels that A. (D.) does remain a significant threat to the safety of the public for several reasons: A. (D.)’s locomotion has been significantly affected, and should the plan be for him to remain at his current residence, then the team would have no trouble finding that A. (D.) no longer remains a significant threat to the safety of the public. However, A. (D.)’s wife may be stretched too thin, as she takes care of an adult son with Down syndrome, who lives with his parents, in addition to looking after A. (D.). As such, A. (D.) would have to me moved to new accommodations, which would need to be approved.
d) It is inevitable that A. (D.) will be moved to a long-term care facility. The treatment team needs to find one that will be able to manage A. (D.)’s neurological problems as well as his worsening physical disabilities.
e) Any long-term care facility will have other patients, many of whom may be visited by children under the age of sixteen. A child could encounter him in a communal area or accidentally wander into his room. Until the treatment team can fully understand the policies, procedures, and plans in place to protect children who may come into contact with A. (D.), he must be considered a significant threat to public safety.
f) A. (D.)’s wife is his substitute decision-maker for placement as well as for treatment with antipsychotic medication.
g) When the treatment team finds an appropriate long-term care facility for A. (D.), it will ask for an early hearing, to request either the addition of the specified residence to the Disposition or a stay of the charges against A. (D.).
[16]. In response to questions from counsel for the Attorney-General, Dr. Gojer testified:
a) A. (D.)’s wife is experiencing a very heavy burden in looking after the various needs of both A. (D.) and her son.
b) A. (D.) currently has limited mobility and cannot leave his home without the assistance of his wife.
c) The treatment team needs an occupational therapist’s assessment of A. (D.), to understand the kind of long-term care facility that would be suitable to address A. (D.)’s physical needs and to manage his risk.
d) Paragraph 1(c) is redundant and should be removed from the current Disposition.
[17]. In response to questions from counsel for A. (D.), Dr. Gojer testified:
a) A. (D.) currently represents more of a risk to himself than to others because of his mobility issues and frequent falls.
[18]. In response to questions from the panel, Dr. Gojer testified:
a) A. (D.) does understand the roles of the various parties in a proceeding. However, his short-term memory is so poor that he could not communicate with counsel, or participate in a trial, in a meaningful way.
b) The real concern is whether any facility would be able to manage the risk of A. (D.)’s coming into contact with children under the age of sixteen. The risk is real, not speculative, and there are too many unknowns. The outstanding allegation of inappropriate sexual touching was very recent. It was an act of opportunity, rather than predation. Until a facility is found that can manage A. (D.)’s access to children, he remains a significant threat to public safety.
c) The treatment team is not sure whether the outstanding charges were a result of A. (D.)’s neurocognitive disorder. If so, they are unsure whether continued neurocognitive decline would increase or decrease his risk to those under the age of sixteen.
[19]. No other evidence was called.
Analysis and Conclusions:
Fitness to Stand Trial
[20]. The first issue for the Board to decide is whether A. (D.) remains unfit to stand trial.
Applicable Law
[21]. The Supreme Court of Canada addressed the fitness test most recently in R v Bharwani, 2025 SCC 26 (“Bharwani”). In this decision, the Supreme Court emphasized the following:
a) Fitness to stand trial does not require an accused to make decisions in his or her best interests. Instead, “it requires making decisions based on an understanding of reality that is not overwhelmed by delusions, hallucinations, or other symptoms of their mental disorder.”1
b) The accused is fit to stand trial if (s)he can: “make and communicate reality-based decisions in the conduct of their defence or instruct counsel to do so,”2 and can: “intelligibly communicate these decisions to counsel or the court.”3
c) Conducting a defence involves: “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.”4
d) The “capacity” required to make these decisions includes: “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.”5
e) “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.”6
f) The fitness to stand trial test is “contextual,” and the inquiry: “focuses on the decisions that form part of an accused’s defence in a specific case, and not in the abstract.”7
g) The Court further stated, at paragraph 67:
“The text of the statutory definition of “unfit to stand trial” provides some guidance on the requisite capacity threshold that an accused must possess. The definition notes “in particular” that an accused is unfit if they are unable to (1) understand the nature or object of the proceedings, (2) understand the possible consequences of the proceedings, or (3) communicate with counsel. The use of “or” between these requirements suggests that if the court is satisfied that the accused is unable to meet one of them, they are unfit to stand trial, as they lack the capacity to “conduct” a defence.”
Determination of Fitness
[22]. Having heard and considered all the evidence and submissions from the parties, the Board agrees with their joint submissions that A. (D.) is unfit to stand trial. Because of A. (D.)’s neurocognitive disorder and poor memory, he is unable to communicate meaningfully with counsel, or to meaningfully participate, and instruct counsel, in a criminal proceeding. A. (D.)’s mental health symptoms cannot be described as transient.
[23]. A. (D.)’s mental health disorder does compromise his ability to conduct a defence, and it would impair his understanding of reality when making, or communicating, decisions in his defence.
[24]. In particular, the Board relies on the following extracted paragraphs, set out in the Hospital Report:
“A. (D.) continues to progressively decline in his memory, ability to care for himself and to ambulate. He cannot recall my name and has no knowledge of his charges. While he has a general understanding of having been charged in the past, he is unable to recall who his lawyer is, what a trial entails and what the purpose of an ORB is.”
[25]. As set out in the Hospital Report, and as testified by Dr. Gojer, A. (D.) is suffering from a neurocognitive disorder, which is getting worse.
Necessary and Appropriate Disposition:
Determination of Permanent Unfitness
[26]. The Board finds that A. (D.) is permanently unfit, based on the doctor’s uncontroverted evidence and the Hospital Report.
[27]. As set out in the Hospital Report, Dr. Gojer found that A. (D.) is permanently unfit and that the chances of recovering from his neurocognitive disorder are highly unlikely.
[28]. According to Dr. Gojer, A. (D.) could be described as cognitively impaired almost all the time.
[29]. The Board finds that A. (D.) does present a significant threat to public safety and that the necessary and appropriate Disposition in the circumstances is a continuation of the Conditional Discharge Order. The treatment team needs to have A. (D.) placed in an appropriate long-term facility, in which he can be adequately monitored before they could consider him to not be a significant risk to the public. Dr. Gojer’s uncontroverted evidence was that this risk is real and not speculative. Any long-term care facility will have young children visiting elderly relatives. A. (D.)’s outstanding charges were crimes of opportunity, and young children could inadvertently come in contact with him. Until the hospital can satisfy itself that a long-term care facility can appropriately manage A. (D.)’s risk to public safety with proper safeguards and procedures, he must be considered a significant threat.
[30]. In consideration of all the evidence, submissions of the parties and criteria set forth in s. 672.54, the paramount consideration being the safety of the public, in addition to the mental condition of A. (D.), his reintegration into society and his other needs, the necessary and appropriate Disposition is a continuation of the existing Disposition with the deletion of paragraph 1(c).
DATED this 12th day of March 2026, at the City of Toronto, in the Toronto Region.
Mr. J. Weinstein Alternate Chairperson
Office of the Registrar Ontario Review Board