Court of Appeal for Ontario

Date: 2018-12-24 Docket: C59882

Judges: MacPherson, Pardu and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

The Ontario Review Board Respondent

The Person in Charge of the Centre for Addiction and Mental Health Respondent

and

Elizabeth Petroniuk Applicant/Appellant

Counsel

Graham Jenner, for the appellant

Catherine Weiler, for the respondent, Her Majesty the Queen

Gavin S. MacKenzie, for the respondent, The Person in Charge of the Centre for Addiction and Mental Health

Heard: December 21, 2018

On appeal from: the order of Justice Gary Trotter of the Superior Court of Justice dated December 1, 2014, with reasons reported at 2014 ONSC 6951.

Reasons for Decision

[1] In 2007, Elizabeth Petroniuk was found not criminally responsible on a charge of assault. Since that time, she has been subject to the jurisdiction of the Ontario Review Board (the "ORB").

[2] In 2014, Ms. Petroniuk applied for a declaration that s. 672.56 of the Criminal Code violated her rights under s. 7 of the Canadian Charter of Rights and Freedoms on the basis that the section did not afford an NCR accused the ability to compel the ORB to hold a hearing to review a decision of the person-in-charge of a hospital to significantly increase the restrictions on the liberty of an NCR accused.

[3] The application judge dismissed Ms. Petroniuk's application, finding that s. 672.56 did not violate s. 7 of the Charter: 2014 ONSC 6951, at para. 33. Ms. Petroniuk appeals.

[4] We dismiss the appeal substantially for the reasons given by the application judge in paras. 13-25 and 27-31 of his decision.

[5] Although we do not share the application judge's view that a mandamus application would provide a person in Ms. Petroniuk's situation with a practical avenue to review any increase in the restrictions on her liberty, we do note that both CAMH and the ORB considered and responded promptly to the information provided by Ms. Petroniuk's counsel complaining about her loss of privileges in 2013.

[6] As the Crown noted in para. 42 of its factum, Part XX.1 provides a number of "liberty safeguards" or procedural avenues to an NCR accused to be heard with respect to non-significant restrictions of liberties:

(i) The ability of the hospital to ask for a hearing to review a disposition under s. 672.81(2), even if the significant increase threshold in s. 672.56(2) has not been reached;

(ii) The ability of the ORB to hold a hearing to review a disposition at any time, on its own motion or at the request of a party, under s. 672.82(1);

(iii) The ability of an NCR accused to bring a hospital decision to the ORB's attention in writing and seek redress, as the appellant did in this case; and

(iv) The ability to have the ORB review any restrictions at the next annual review hearing under s. 672.81(1).

[7] Finally, the application judge did not have the benefit of this court's decision in Campbell (Re), 2018 ONCA 140, which clarified how to determine when a person-in-charge of a hospital significantly increases the restrictions on the liberty of an NCR accused. That decision reinforces the application judge's conclusion, at para. 20, that Part XX.1 of the Criminal Code does not contemplate the ORB micromanaging the day-to-day operations of hospitals. The decision in Campbell (Re) also counsels that when the hospital is in doubt as to whether a significant increase in restrictions on liberty has remained in place for more than seven days, it should give "responsible notice" to the ORB: at para. 69.

[8] The appeal is dismissed.

"J.C. MacPherson J.A." "G. Pardu J.A." "David Brown J.A."