Diana Schell

The appellant was found not criminally responsible for an assault with a weapon due to a mental disorder.

The Review Board ordered his transfer to a medium security hospital with privileges, applying the 'least onerous and least restrictive' test to the conditions of his detention.

The Court of Appeal held this test only applied to the choice of disposition, not the conditions.

The Supreme Court of Canada allowed the appeal, holding that the 'least onerous and least restrictive' requirement under s. 672.54 of the Criminal Code applies to both the disposition and the particular conditions forming part of it.

The respondent, who suffers from bipolar disorder, refused proposed medical treatment.

The attending physician found him incapable of making this decision, and the Consent and Capacity Board confirmed this finding.

On judicial review, the Superior Court of Justice overturned the Board's decision, finding it unreasonable and based on a misapplication of the statutory test for capacity.

The Court of Appeal upheld this decision.

The Supreme Court of Canada dismissed the appeal, holding that the Board's finding of incapacity was unreasonable because it conflated the respondent's best interests with his capacity to decide, and failed to recognize that the respondent understood his condition and the consequences of refusing treatment.