Joseph Israel Berger

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.

The appellant, Mildred Micah, appealed two decisions of the Consent and Capacity Board.

The first decision confirmed the validity of a Community Treatment Order (CTO) issued in respect of Ms. Micah.

The second dismissed an application to review a finding that Ms. Micah lacked the capacity to consent to treatment under a Community Treatment Plan (CTP), due to a six-month time limit prescribed by the Health Care Consent Act, 1996.

The court reviewed the Board's interpretation of the time limit on a standard of reasonableness, concluding that the Board's decision was reasonable and correct, as the term "treatment" consistently includes a CTP for both review applications and time limits.

The court also found the Board's conclusion that all statutory criteria for the CTO were met to be reasonable, based on evidence that Ms. Micah would likely suffer substantial mental deterioration without the CTO.

Both appeals were dismissed.

The Crown appealed a disposition of the Ontario Review Board regarding Bartosz Gajewski, raising two grounds: (1) that a condition allowing indirectly supervised or unaccompanied entry into the community for up to seven days was unreasonable and did not protect public safety, and (2) that the Board's failure to include the victim's father (J.N.) in a 500-metre boundary condition was unreasonable.

The Court of Appeal dismissed the first ground, finding the Board's disposition reasonably supported by the evidence and noting that the Crown had not opposed the condition at the hearing.

The Court allowed the second ground in part, ordering that J.N. be included in the 500-metre boundary condition.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention at Waypoint Centre for Mental Health Care.

The appellant, found not criminally responsible on account of mental disorder for assault, argued that he had reached a treatment impasse at Waypoint and sought an independent assessment and transfer to a less secure facility.

The Court of Appeal dismissed the appeal, finding that the evidence did not substantiate the existence of a treatment impasse and that the Board's decision to maintain detention at Waypoint was well-supported by evidence regarding the appellant's risk to public safety, including his history of water intoxication, threats to staff, and previous elopement from other facilities.