Gavin S. MacKenzie

An appeal under Part XX.1 of the Criminal Code against the Ontario Review Board's disposition dated June 30, 2017.

The appellant did not contest the Board's finding that he remained a significant threat to public safety or the disposition that he remain detained at the General Forensic Unit at CAMH.

However, he contended the Board acted unreasonably by not including a delegation of authority permitting community living in supervised accommodation when the Hospital deemed it appropriate, as had been included in the previous 2016 disposition.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and entitled to deference, as the evidence clearly showed the appellant was not ready for community living at the time of the hearing.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated May 25, 2017.

The appellant challenged the Board's removal of the possibility of community living from her disposition conditions.

The Board had acted on a joint position to detain the appellant in the secure unit with potential transfer to the general forensic unit but not to the community.

The appellant's treating physician testified that community living was not a realistic goal given the appellant's recent incidents of unauthorized absence and violence towards hospital staff, and that the frustration of an unattainable condition had contributed to the appellant's anger and violent behavior.

The Court of Appeal upheld the Board's decision, finding it entirely reasonable to remove the community living condition based on the evidence.

Two appellants, both found not criminally responsible on account of mental disorder and incapable of consenting to medical treatment under provincial law, appealed detention orders imposed by the Ontario Review Board.

The central issue was whether an accused person incapable of consenting to medical treatment could nonetheless consent to a condition regarding psychiatric or other treatment under section 672.55(1) of the Criminal Code.

The Court of Appeal held that the capacity required to consent to such a condition differs from the capacity required to consent to the treatment itself.

An accused need only understand information relevant to the operation of the condition and appreciate the reasonably foreseeable consequences of agreeing to it, including potential consequences for liberty.

The Court overruled its prior jurisprudence to the contrary and allowed the appeals, remitting the matters back to the Board for re-hearing.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated February 24, 2017.

The appellant sought a conditional discharge, arguing it was the least onerous and least restrictive disposition necessary to protect the public.

The Court of Appeal upheld the Board's decision to impose a detention order with community living privileges at the discretion of the hospital, finding that the Board reasonably determined this was the least onerous and least restrictive disposition given the appellant's admitted risk to public safety, history of non-compliance with medication, alcohol use, and pattern of rule violations.

The appellant appealed a disposition order from the Ontario Review Board dated January 5, 2017, which ordered his detention at Waypoint Centre for Mental Health Care – Provincial Forensic Division.

The appellant did not challenge the Board's finding that he posed a significant threat to public safety but argued that his transfer from CAMH to Waypoint was not necessary and appropriate for managing that risk.

He contended that the Board failed to consider the context of his behaviour and that the announcement of his transfer triggered his deterioration.

He also argued the Board did not give sufficient weight to the disruption of his therapeutic and familial relationships.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and amply supported by evidence.

An appeal from an Ontario Review Board disposition ordering that the appellant remain subject to a conditional discharge.

The appellant, a 62-year-old woman with schizophrenia, was found not criminally responsible for assaulting a five-year-old child in 2011.

The Board concluded she remained a significant threat to public safety based on her history of non-compliance with medication and the risk of decompensation if she ceased treatment.

The Court of Appeal allowed the appeal, finding the Board's conclusion unreasonable and speculative.

The court held that the evidence did not meet the onerous standard required under section 672.54 of the Criminal Code for maintaining restraints on an NCR accused's liberty, and ordered an absolute discharge.

An appeal against an Ontario Review Board disposition denying expanded privileges and absolute discharge for an individual found not criminally responsible on a charge of criminal harassment.

The appellant argued the Board failed to conduct a separate and specific analysis of whether his conduct would constitute a serious criminal offence with real risk of physical or psychological harm.

The Court of Appeal dismissed the appeal, finding the Board's reasons demonstrated proper consideration of the seriousness of the offence and the risk to the community.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated October 31, 2016.

The appeal was dismissed.

An addendum was issued after the reasons were prepared and signed, noting that counsel for the appellant subsequently provided the reasons for a ruling of July 31, 2014, which stayed the criminal harassment charge.

The trial judge's reasons, which detailed the evidence including the effect on the victim and the appellant's assessment under the Mental Health Act, were acknowledged by counsel to undermine many of the arguments made during the appeal, though the court found these reasons did not change the basis for dismissing the appeal.

The appellant appealed a Divisional Court decision that reversed a Small Claims Court judgment finding wrongful termination.

The respondent employer terminated the appellant, a probationary employee, before completion of six months of employment without just cause.

The trial judge had disregarded the probationary clause in the employment contract, finding it was not properly communicated.

The Court of Appeal upheld the Divisional Court's reversal, holding that the probationary term was valid and unambiguous, and that probationary employees may be terminated without notice during the probationary period if the employer makes a good faith determination of unsuitability, provided the employee was given a fair and reasonable opportunity to demonstrate suitability.

The appellant received statutory notice as required by the Employment Standards Act, 2000.

The appellant appealed a disposition of the Ontario Review Board ordering his detention on a General Forensic Unit at the Centre for Addiction and Mental Health with the ability to live in community accommodation approved by the person in charge of CAMH.

The Court of Appeal upheld the Board's decision, finding that an absolute discharge was not appropriate given clear evidence that the appellant would stop taking medication, decompensate quickly, and engage in threatening and aggressive behaviour.

The court also rejected the argument that a conditional discharge was the least restrictive appropriate order, finding that the detention order with community living possibilities was reasonable given the appellant's homelessness and ongoing risk of harm.

The appellant appealed the Ontario Review Board's disposition maintaining a detention order.

The appellant argued the Board erred in concluding she continued to pose a significant threat to public safety and that detention remained the least restrictive measure.

The Court of Appeal upheld the Board's decision, finding the expert evidence established the appellant suffered from schizophrenia with persistent delusional beliefs related to the index offense (assault of her mother), lacked insight into her condition, and would discontinue treatment if discharged.

Although the appellant had been placed in supervised community accommodation since the appeal was filed, the court found this did not undermine the Board's conclusion that conditional discharge would be inadequate to manage the risk.

The detention order was necessary to enable the hospital to approve and supervise the appellant's community placement.

An appeal concerning the disqualification of counsel due to an alleged conflict of interest arising from a lawyer's transfer between law firms.

The lawyer, who had worked extensively on an insurance coverage dispute for the plaintiff, transferred to the defendant's law firm where he would work closely with opposing counsel.

The court addressed whether an ethical screen could adequately protect the former client's confidential information given the intense working relationship between the two lawyers.

The appeal court upheld the disqualification, finding that while the firm had achieved technical compliance with professional guidelines, the spirit of those guidelines was absent and the presumption of inadvertent disclosure could not be rebutted by clear and convincing evidence.

The Applicant sought to disqualify the Respondent's counsel, Harold Niman and Niman Gelgoot & Associates, citing a conflict of interest due to Niman's prior representation against the Applicant and her family in other family law disputes, and alleging Niman possessed confidential information.

The Applicant also argued the Respondent's retention of Niman was tactical and intended to intimidate her.

Niman brought a cross-motion to strike certain evidence from the Applicant's affidavits, including settlement-privileged communications and documents related to a complaint against Dr. Douglas Weir to the College of Physicians and Surgeons.

The court dismissed the Applicant's motion to disqualify, finding no "sufficient relationship" between the prior retainers and the current proceeding, and no evidence that Niman actually possessed relevant confidential information.

The court granted Niman's motion to strike, upholding settlement privilege and the statutory prohibition against admitting professional regulatory proceedings in civil matters.

An NCR accused detained at a psychiatric hospital challenged the constitutionality of s. 672.56 of the Criminal Code, arguing that it violated s. 7 of the Charter by allowing the hospital’s person in charge to determine whether increased restrictions on liberty should trigger mandatory Review Board oversight.

The applicant argued this created a conflict of interest and reasonable apprehension of bias.

The court held that when s. 672.56 is considered within the broader statutory framework of Part XX.1, including discretionary review powers and the availability of judicial review, the scheme provides a fair process.

The notification requirement imposes a statutory duty rather than discretionary review authority.

Accordingly, the provision does not violate principles of fundamental justice.