Court of Appeal for Ontario

Date: 2023-05-19 Docket: M54141 (COA-23-CR-0071)

Before: Doherty, Gillese and Zarnett JJ.A.

Between: His Majesty the King, Responding Party and Diana Babor, Moving Party (Applicant)

Counsel: Diana Babor, acting in person Brent Kettles, for the responding party

Heard and released orally: May 18, 2023

Reasons for Decision

[1] The parties agree that the application to review the order of MacPherson J.A. is moot. We also agree.

[2] The order before MacPherson J.A. was a release order made by the trial judge after his finding that the applicant was NCR. That release order was made under s. 672.46(1)(2). According to the terms of those provisions, the release order remained in effect “until the Review Board made a disposition”. The Review Board has now made a disposition. The release order, including the conditions that the applicant challenged before MacPherson J.A., and which she seeks to challenge here, are no longer operative. Consequently, this application is properly described as moot.

[3] The court will, in unusual circumstances where the interests of justice so require, exercise its discretion in favour of hearing the merits of a moot application or appeal. We are not satisfied that there are grounds for the exercise of that discretion here. We note that the applicant has an outstanding appeal to this court from the NCR finding made at trial. On that appeal, she can take issue with the merits of the NCR finding and with any alleged procedural unfairness which led to that finding.

[4] The application is dismissed.

"Doherty J.A." "E.E. Gillese J.A." "B. Zarnett J.A."