Linda Omazic

The administrators of two mental health centres appealed a decision of the Ontario Review Board transferring a patient, found not criminally responsible on account of mental disorder, from a maximum security facility to a medium security facility.

The Court of Appeal held that the Board applied the wrong legal test by using the 'least onerous and least restrictive' standard to determine the conditions of the patient's hospital detention under s. 672.54(c) of the Criminal Code.

The appeal was allowed and the matter was remitted to the Board for a rehearing with directions to apply the correct legal test and obtain further information regarding the patient's previous transfer and the suitability of the medium security facility.

The applicant hospital administrators moved under s. 672.76 of the Criminal Code to suspend a disposition of the Ontario Review Board ordering the transfer of the respondent accused from a maximum to a medium secure hospital facility, pending their appeal.

The court dismissed the motion, noting that the accused was fourth on the waiting list for the medium secure facility and it was highly unlikely he would be transferred before the appeal was heard in 13 days, making the suspension order unnecessary.