Michael Feindel

The accused was convicted of sexual assault and sexual interference in 2008 but was found unfit to stand trial prior to sentencing.

In 2021, the Ontario Review Board found him permanently unfit and recommended a stay of proceedings, concluding he no longer posed a significant threat to public safety.

The Superior Court held a hearing to determine whether to stay the charges under s. 672.851 of the Criminal Code.

The court rejected the ORB's recommendation, finding that the accused, despite his age and dementia, remained a significant threat to public safety due to his risk of reoffending sexually against children if he gained access to alcohol.

The court concluded a stay would undermine confidence in the administration of justice.

The applicant, who was found not criminally responsible, objected to the Ontario Review Board holding her annual disposition review hearing by videoconference during the COVID-19 pandemic.

The Board ruled it had the authority to proceed by videoconference without her consent and over her objections.

The applicant sought a writ of certiorari to quash the ruling.

The Superior Court of Justice granted the application, finding that under section 672.5(13) of the Criminal Code, the Board may only hold a hearing by videoconference if the accused consents, and therefore the Board exceeded its jurisdiction.

The applicant, Barrie Lynn, a 66-year-old man found unfit to stand trial due to dementia, challenged the constitutionality of s. 672.851(1)(a) of the Criminal Code under s. 7 of the Canadian Charter of Rights and Freedoms.

He argued that the provision, by precluding the Ontario Review Board from recommending a stay of proceedings at an initial disposition hearing, arbitrarily restricted the liberty of permanently unfit accused persons who do not pose a significant public threat.

The court dismissed the application, finding no sufficient causal connection between the impugned limitation and prejudice to the applicant's liberty or security of the person.

Furthermore, the court held that the limitation was not arbitrary, as it served the legitimate legislative purpose of ensuring adequate consideration of public safety and enhancing public confidence in the administration of justice by requiring a "second look" before a stay recommendation.

The applicant, who had been found unfit to stand trial, sought a writ of certiorari to quash an Ontario Court of Justice order.

The lower court had found that the Crown established a prima facie case of assault causing bodily harm under s. 672.33 of the Criminal Code and granted an extension of time for the hearing under s. 672.33(1.1).

The applicant argued that the evidence relied upon was inadmissible hearsay and that the judge erred in extending the time.

The Superior Court dismissed the application, finding no jurisdictional error.

The court held that the evidence was admissible under s. 540(7) and s. 672.33(5), and that the judge appropriately exercised her discretion to extend the time despite a minor error in considering one factor.

The applicant, who was found not criminally responsible, brought an application for a writ of habeas corpus with mandamus in aid to review his detention at Waypoint Centre for Mental Health Care and order his immediate transfer to the Centre for Addiction and Mental Health (CAMH).

The Ontario Review Board had ordered his transfer to CAMH 'forthwith', but he had been waiting seven months due to a shortage of secure forensic beds.

The Superior Court of Justice dismissed the application, finding that the applicant had not established a deprivation of liberty caused specifically by the delay, and that the ORB order provided lawful authority for his continued interim detention at Waypoint until a bed became available at CAMH.

The applicant sought an order in the nature of certiorari to quash a bail revocation order made by an Ontario Court of Justice judge during a fitness to stand trial hearing.

The Superior Court examined whether the lower court judge had jurisdiction under s. 523(2)(a) of the Criminal Code to revoke bail on her own motion, without cause being shown, and whether a fitness hearing constituted a "trial" for the purposes of that section.

The court found that the lower court judge lacked jurisdiction, as s. 523(2)(a) applies only to a trial judge presiding over the trial proper, and inherent jurisdiction could not be used to circumvent statutory limitations on liberty rights.

The Crown applied for a treatment order under s. 672.58 of the Criminal Code after the accused, who suffered from schizophrenia, was found unfit to stand trial.

The judge declined to make the order because the accused did not consent to treatment, preferring the civil provincial regime.

The Crown sought certiorari to quash the decision.

The Superior Court found that while the judge erred in law by allowing the accused's lack of consent to override the statutory purpose of the treatment order, the error was not jurisdictional.

The application for certiorari was dismissed.

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.

The applicants, who had been found unfit to stand trial, sought habeas corpus with mandamus compelling their transfer from jail to a psychiatric hospital pursuant to orders made under s. 672.46(2) of the Criminal Code.

They argued that continued detention in jail while awaiting a hospital bed violated ss. 7 and 9 of the Charter and that the responsible authorities had failed to comply with the underlying court orders.

The court held that the detention was lawful because the original orders expressly authorized custody in jail until a hospital bed became reasonably available.

The applicants had also been returned to court as required when no bed was available, meaning the orders had largely been complied with.

As a result, neither habeas corpus nor mandamus was available, and the Charter claims were rejected.