Julie Zamprogna Ballès

The Court of Appeal for Ontario allowed Ernest Clayton’s appeal from a Review Board disposition finding him unfit and “permanently unfit” to stand trial.

The court held that the Board failed to apply the fitness test contextually, as required by law, and did not consider relevant evidence about the simplicity of the charges and Clayton’s ability to understand and respond to them.

The Board’s finding of permanent unfitness was also unsupported by sufficient reasons.

The matter was remitted to a differently constituted Board for a new determination of fitness.

The appellant, Brandon Mott, appealed a Consent and Capacity Board decision that found him incapable of consenting to anti-psychotic medication.

Mott, diagnosed with schizophrenia, denied his illness and argued the Board failed to consider reported side effects and the role of substance use in his mental health history.

The Board had concluded Mott was unable to appreciate the foreseeable consequences of declining treatment due to his inability to recognize the manifestations of his mental condition, a finding upheld by the court.

The appeal was dismissed, with the court finding no palpable and overriding error in the Board's decision.

Nathaniel White, found not criminally responsible, appealed a disposition of the Ontario Review Board (ORB) that removed his community living and 30-day pass privileges.

The ORB had accepted his request for a lateral transfer to another facility but removed the privileges based on clinical opinion that community living was not realistic due to his recent decompensation and need for a slower, more supported approach to treatment.

The Court of Appeal dismissed the appeal, finding the ORB's decision was not unreasonable or based on an error of law, distinguishing it from a case where there was a misapprehension of information.

Joseph Haddad appealed a disposition of the Ontario Review Board, which ordered his detention at a forensic mental health centre subject to conditions, specifically challenging a condition prohibiting him from attending within 250 metres of his mother's home.

Haddad was found not criminally responsible for an index offence involving discharging a shotgun.

The Board's decision to impose the condition was based on concerns for public safety, psychological harm to neighbours, and the appellant's transition to community living.

The Court of Appeal dismissed the appeal, deferring to the Board's reasonable decision, noting that the condition served to address victim safety and was not a significant restraint on the appellant's liberty, especially as his physician did not recommend visits to the family home.

An appeal from an Ontario Review Board disposition dated February 1, 2018, ordering the appellant's detention subject to conditions.

The appeal became moot when the Board issued a new disposition on January 14, 2019, before the appeal hearing.

The Court of Appeal declined to hear the moot appeal, applying the two-step analysis from Borowski v. Canada (Attorney General).

The court found no live controversy affecting the parties' rights and determined that the Borowski factors did not justify exercising discretion to hear the moot appeal.

The court indicated willingness to hear an appeal from the 2019 disposition at an early date.

The appellant appealed an Ontario Review Board disposition finding that she continued to pose a significant threat to the safety of the community.

The appellant sought an absolute discharge despite having requested a conditional discharge from the trial judge.

The Court of Appeal upheld the Board's finding of significant threat as reasonable, noting that although the appellant had complied with the conditional discharge order for almost a year, the Board had concerns regarding the serious nature of the index offence, the appellant's history of substance abuse, and her continuing mental health symptoms.

The court also noted that all parties had made a joint submission accepting significant threat as not an issue for the Board.

The appellant appealed a disposition issued by the Ontario Review Board that imposed additional restrictions on his community access, reducing his indirectly supervised community access to a maximum of four hours with an approved itinerary and reducing day passes from seven days indirectly supervised to three days directly supervised.

The appellant challenged the disposition on multiple grounds, including that it was not the least onerous and least restrictive disposition, that the Board failed to carry out its inquisitorial mandate, that the Board focused exclusively on public safety, that a treatment impasse existed requiring Board intervention, and that the Board failed to consult the complete risk assessment report.

The Court of Appeal dismissed all grounds of appeal and upheld the Board's disposition.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention at a psychiatric facility, arguing he did not pose a significant threat to public safety and should receive an absolute discharge.

The Court of Appeal found that the Board reasonably addressed conflicting medical evidence and properly considered a recent incident where the appellant brought methamphetamine into the facility.

The appeal was dismissed, as the Board's conclusion that the appellant remained a significant threat was reasonable.

The appellant appealed a disposition of the Ontario Review Board ordering her detention in a hospital.

The appellant argued the Board's finding that she posed a significant threat to public safety was unreasonable and that her risk could be managed in the community.

The Court of Appeal dismissed the appeal, noting the appellant's history of violence, mental illness, substance abuse, and noncompliance with medication and court orders.

The Court relied on expert evidence that the appellant continued to suffer from a significant mental illness and lacked community support, justifying the detention order.

The appellant, who was found not criminally responsible for index offences in 2007, appealed a disposition of the Ontario Review Board that concluded he constituted a significant threat to the safety of the public and ordered his continued detention without community living privileges.

The Court of Appeal allowed the appeal, finding the Board's decision unreasonable because it failed to address conflicts and ambiguities in the expert evidence regarding whether the appellant posed a significant threat, particularly given his lack of violent offences since 2003.

The matter was returned to the Board for a fresh determination.

The appellant appealed a disposition of the Ontario Review Board, arguing that the Board's finding that he continues to pose a significant threat to public safety was unreasonable.

Alternatively, he argued the Board erred in failing to grant a conditional discharge.

The Court of Appeal dismissed the appeal, finding ample evidence to support the Board's conclusion regarding the threat to public safety.

The Court also held that a conditional discharge was unavailable because the appellant required supervised housing approved by the person in charge.

Appeal under Part XX.1 of the Criminal Code from an Ontario Review Board disposition continuing detention subject to conditions permitting community living.

The appellant argued that the Board’s finding of significant risk to the safety of the community was unsupported by the evidence and therefore unreasonable.

The Court of Appeal held that, although the case was close, the evidence of the treating psychiatrist concerning the risk of a return to fire-setting and threatening behaviour supported the Board’s conclusion.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board.

Following a request for an early Board hearing, counsel advised that the appeal would not be pursued.

The Court of Appeal dismissed the appeal as abandoned.

The appellant appealed a disposition of the Ontario Review Board ordering his detention at a minimum secure unit, arguing it was too restrictive and seeking an unconditional discharge.

The appellant had been found not criminally responsible for assault, attempted sexual assault, and unlawfully being in a dwelling house, offences committed while experiencing command hallucinations.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable given the appellant's ongoing symptoms of schizoaffective disorder and the associated risk of disinhibited and aggressive behaviour.

The appellant appealed a disposition of the Ontario Review Board, raising for the first time the issue of whether the Board had jurisdiction to order random breath and urine sampling as a condition of his residing in the community.

The Court of Appeal declined to hear the jurisdictional issue, noting that the condition had been in effect since 2002, the record was unclear as to whether the appellant had consented to it, and it was unclear whether the treatment team would have recommended community living without it.

Finding no merit in the other issues raised, the court dismissed the appeal.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention at a medium secure unit following a finding of not criminally responsible for public mischief.

The appellant argued he had been detained too long for a minor offence and that the Board failed to adequately consider the least onerous and least intrusive disposition.

The Court of Appeal dismissed the appeal, finding that the statutory cap on detention relied upon by the appellant was not in force, and that the Board's reasons, read as a whole, demonstrated adequate consideration of the requirement to impose the least onerous and least restrictive disposition.