COURT OF APPEAL FOR ONTARIO

CITATION: Ramos (Re), 2025 ONCA 820

DATE: 20251201

DOCKET: COA-24-CR-1273

Tulloch C.J.O., Dawe and Pomerance JJ.A.

IN THE MATTER OF: David Ramos

AN APPEAL UNDER PART XX.1 OF THE CODE

Anita Szigeti and Rudi Barwin, for the appellant

Grace Choi, for the respondent, the Attorney General of Ontario

Michele Warner, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Heard: July 4, 2025

On appeal against the disposition of the Ontario Review Board dated November 20, 2024, with reasons dated December 11, 2024 and reported at [2024] O.R.B.D. No. 2596.

Tulloch C.J.O.:

Table of Contents

A. INTRODUCTION. 2

B. FACTUAL BACKGROUND. 3

C. ISSUES ON APPEAL. 6

D. LEGAL FRAMEWORK. 6

E. STANDARD OF REVIEW.. 14

F. ANALYSIS. 15

(1) Conditional Discharge and Compulsory Mechanisms. 16

(2) Inquiry into Family Accommodation & Mr. Ramos’s Wishes. 19

(3) Assessment of Risk. 21

G. SYSTEMIC PRESSURES. 26

H. REMEDY. 27

I. DISPOSITION. 29

A. introduction

[1] This appeal arises from a disposition made by the Ontario Review Board (the “Board”) on November 20, 2024, continuing the detention of Mr. David Ramos at the Centre for Addiction and Mental Health (“CAMH”). Mr. Ramos had been found not criminally responsible (“NCR”) on account of mental disorder for serious offences committed in 2020. He challenges the Board’s decision as inconsistent with the requirement under s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, to impose the least onerous and least restrictive disposition that is compatible with public safety.

[2] For the reasons that follow, I would allow the appeal and remit the matter for a new hearing before a differently constituted panel, to take place as soon as reasonably possible. The Board approached its challenging task with care, producing detailed reasons that engaged with many of the issues and accounted for both public safety concerns and Mr. Ramos’s personal circumstances. However, the reasons do not fully engage with the proposed conditional discharge and associated safeguards, nor do they reflect a sufficient inquiry into available housing options, including the potential family accommodations which Mr. Ramos wished to explore. In addition, the assessment of Mr. Ramos’s risk profile relied in part on speculative concerns and certain factual assumptions not supported by the record.

[3] The result, though undoubtedly well-intentioned, is a disposition that does not fully reflect the legislative and constitutional imperatives that govern the treatment of people found NCR. Mr. Ramos’s circumstances also raise broader concerns about the challenges faced by people found NCR who are clinically stable but unable to access appropriate housing supports in the community. These concerns merit careful attention.

B. factual background

[4] The record, including Mr. Ramos’s factum and the hospital report, outlines his history and progress. Born in the United States to a Jamaican mother and Puerto Rican father, he was raised in Toronto by extended family. Despite early adversity, including his mother’s mental illness and his father’s incarceration, he experienced a stable childhood and maintained close family ties.

[5] In adulthood, Mr. Ramos was diagnosed with schizophrenia and a substance use disorder. His mental health declined following the death of his mother and a period of homelessness. The index offences in question occurred on April 4, 2020, during a period of acute psychosis.

[6] Since being found NCR and admitted to CAMH in 2021, Mr. Ramos has responded well to treatment, including medication, group therapy, and structured programming. He expressed remorse for his actions and demonstrated sustained clinical stability and rapid progress, achieving the highest level of community access CAMH allows within his first year there.

[7] The very next year, in 2022, he was discharged to a supervised boarding home with 24/7 on-site support. While living in the community, he obtained full-time employment as an autobody technician and formed a personal relationship. Although he encountered difficulty with the structure of the home, which imposed conditions ill-suited to his level of independence, he maintained mental stability in the community. His outpatient team determined that he did not need the home’s strict rules and high level of support and began looking for less restrictive housing.

[8] Unfortunately, Mr. Ramos lost his housing through no fault of his own before his outpatient team was able to find more appropriate accommodation. The home evicted him for breaking curfew when he was detained overnight by police on an expired and unexecuted warrant. He cooperated with his readmission when the police returned him to CAMH the very next day, after the charges were withdrawn.

[9] Since returning to the hospital, Mr. Ramos has continued to progress. He achieved high-level community passes, engaged in volunteer work and social activities, and entered into a new supportive personal relationship. He has been designated as “alternate level of care” (“ALC”) since September 2024, meaning inpatient treatment is no longer clinically required. However, he remains detained due to a lack of suitable housing options.

[10] At his most recent hearing, Mr. Ramos proposed a conditional discharge incorporating a “Young clause” pursuant to Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512, which would require him to attend CAMH at its request for the purpose of assessment, and a treatment compliance condition pursuant to s. 672.55 of the Criminal Code. He indicated a willingness to remain at CAMH until housing was secured or, alternatively, to reside with family members or his partner if CAMH continued to be unable to find housing. The Board declined to grant a conditional discharge, citing concerns about compliance, housing stability, and potential risks in the community.

C. ISSUES ON APPEAL

[11] The appeal raises the following issues:

1. Did the Board sufficiently consider the proposed conditional discharge and its associated safeguards?

2. Did the Board adequately exercise its duty to inquire into potential housing alternatives, including family accommodation, and adequately consider Mr. Ramos’s wishes in that regard?

3. Was the Board’s risk assessment consistent with the evidentiary record and the legal threshold for the least restrictive and least onerous disposition?

D. LEGAL FRAMEWORK

[12] At the outset, it is helpful to recall the origins and guiding principles of the legislative framework that Parliament created to balance the need for public safety with respect for the equality, liberty, and dignity of individuals found not criminally responsible due to mental disorder.

[13] How the law responds to people who commit offences while affected by a mental disorder reflects core societal values. A verdict of not criminally responsible recognizes that although the act or omission prohibited by the criminal law occurred, the individual lacked the necessary criminal intent because their mental condition affected their ability to appreciate the nature and consequences, or wrongfulness, of their actions. As a result, moral culpability is absent. The dispositions available under this regime are therefore not traditional punishments; they are protective and supervisory measures designed to address both the absence of criminal responsibility and any ongoing concerns about public safety. While community safety remains a central concern, individuals found NCR are equally entitled to dignity, equal treatment, and fairness. These protections must be applied in a way that accounts for their specific needs, vulnerabilities, and the impact of their mental condition: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 20, 30, 95; Woods (Re), 2021 ONCA 190, 154 O.R. (3d) 481, at paras. 35, 53, 56; R. v. Conway, 2008 ONCA 326, 90 O.R. (3d) 335, at para. 64, per Lang J.A. (dissenting, though not on this point), aff’d 2010 SCC 22, [2010] 1 S.C.R. 765; R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1321-1325.

[14] Meeting this standard has been challenging. Historically, people with mental illnesses who became involved in the justice system often faced stigma, misunderstanding, and fear. Assumptions of permanent dangerousness were common, risks were frequently overstated, and individuals were subjected to long periods of detention with few safeguards. Shame and stigma deepened these hardships and created additional social and psychological barriers to accessing justice: R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at pp. 973-74, 994, 1016; Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566, at para. 31; Winko, at paras. 18, 35-36, 58, 84, 95; Ontario (Attorney General) v. G., 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 61-63.

[15] To address these concerns, Parliament enacted Part XX.1 of the Criminal Code in 1991. The new scheme affirms the equality and dignity of people found NCR and seeks to provide them with the highest degree of liberty that remains compatible with public safety. It emphasizes individualized assessment, treatment, and reintegration, replacing the prior model of broad and often indefinite detention with carefully tailored dispositions that adjust as an individual’s level of risk changes. This framework reflects a commitment to supporting recovery and reintegration while maintaining appropriate safeguards for the community. In all these ways, Part XX.1 embodies the principles of the United Nations Convention on the Rights of Persons with Disabilities, Can. T.S. 2010 No. 8, which Canada later pledged to uphold – respecting liberty and dignity, accounting for diverse needs, and advancing equality and inclusion: Winko, at paras. 9, 16, 33, 39-42, 54, 81-91, 95; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 55; Convention, Arts. 1, 3.[^1]

[16] Parliament placed the Review Board at the centre of this process. To fulfill its role, it was designed as a specialized tribunal with expertise in assessing complex situations and making fair, informed decisions. Its inquisitorial approach obliges it to actively seek out information relevant to people found NCR, particularly where significant restrictions on liberty are at stake: Murray (Re), 2020 ONCA 547, at paras. 16-18; Winko, at paras. 54-55, 58-62, 69.

[17] The Board must grant an absolute discharge if the individual does not pose a significant risk to public safety. That risk must be real, substantial, and supported by evidence to justify continued oversight. Even where some risk exists, s. 672.54 of the Criminal Code requires the least restrictive and least onerous disposition compatible with public safety. Any restrictions must be evidence-based and responsive to the person’s liberty interest, mental condition, reintegration needs, and broader circumstances. All these factors must be a major focus, and overlooking or failing to meaningfully engage with them is a reversible error: Marmolejo (Re), 2021 ONCA 130, 155 O.R. (3d) 185, at paras. 34, 37, 52; Ahmadzai (Re), 2020 ONCA 169, at para. 8; Tompkins (Re), 2018 ONCA 654, at paras. 22-23; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19.

[18] Respecting these guarantees is essential to safeguarding the Charter rights of individuals found NCR and ensuring they are not treated more severely than those who are convicted: Winko, at paras. 3, 15-16; G., at para. 67; R. v. Jones, 2019 ABCA 313, 378 C.C.C. (3d) 77, at paras. 22-23. At the same time, the Board’s responsibilities must be carried out with full awareness of the need to protect the public, particularly in cases involving serious or violent conduct. Balancing these interests requires the Board to:

1. Remain attentive to constitutional protections and avoid the influence of stereotypes or prejudice;

2. Give thoughtful weight to the reasonable wishes and preferences of NCR individuals, while still prioritizing community safety;

3. Undertake a careful, individualized assessment that avoids assuming permanent or inherent dangerousness and instead evaluates the person’s present clinical and social circumstances;

4. Keep the legal thresholds distinct from hospital preferences or institutional rule compliance, recognizing that clinical convenience cannot substitute for the legal test and conducting a holistic assessment which acknowledges strengths and improvements;

5. Exercise its own independent judgment when reviewing professional opinions; and

6. Approach hearsay evidence with care, ensuring that any reliance on such information is fair, balanced, and consistent with the Board’s dual role of protecting both individual rights and public safety.

[19] First, the Board must be mindful of constitutional rights and remain alert to the risk of stereotypes and prejudice. Every person who comes before the Board has inherent dignity and worth, regardless of the nature of the offence, and is entitled to be treated with respect. Upholding this dignity is not optional; it is central to the human rights and freedoms that guide the Board’s work. Although the index offence may have been serious and may understandably raise concerns for community safety, the Board’s processes should continue to recognize the humanity of individuals found NCR, reflect the commitment to equality expressed in Part XX.1 and in the Convention, and help reduce the shame and stigma that often prevent people with mental illnesses from exercising their rights: Winko, at paras. 61, 81, 90; R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 32, 142; Gibbs, at para. 31; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at para. 29; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, [2021] 3 S.C.R. 176, at para. 56.

[20] Second, the reasonable wishes of people found NCR deserve thoughtful and serious consideration. Listening to their perspectives can support the goals of liberty, dignity, and personal autonomy that Part XX.1 envisions. Doing so also acknowledges that, despite having committed a violent offence, individuals may have clear insights into their own needs, especially when supported by treatment and clinical care. Respectfully engaging with their preferences helps recognize their humanity and sense of self, and it avoids assuming that a mental illness automatically prevents someone from meaningfully participating in decisions about their lives: Tompkins, at paras. 33-43; Winko, at paras. 74, 81; Granovsky, at paras. 29, 33, 36-38, 66, 69.

[21] Third, Board decisions require a careful, individualized assessment that avoids assumptions of permanent or inherent dangerousness. While public safety must always be the Board’s primary concern, Part XX.1 also emphasizes rehabilitation, recognizing that many people found NCR improve significantly with proper treatment and supports. The Board should focus on the individual’s current circumstances and clinical presentation rather than allowing the seriousness of the past offence – however troubling – to overshadow evidence of progress or reduced risk. Because mental health conditions can change over time, past behaviour influenced by illness or social marginalization may not be a reliable predictor of future risk, particularly where treatment has been effective and appropriate supports are in place: Winko, at paras. 35, 37, 58-61, 87-89, 93; G., at para. 65; Granovsky, at paras. 27, 33, 36-38; Gibbs, at para. 31; Hills, at para. 141.

[22] Fourth, the legal tests must be kept distinct from hospital preferences and institutional rule compliance. I address each of these in turn.

[23] Clinical convenience cannot determine the outcome. Even when a hospital may feel that continued detention or more restrictive conditions are easier from an operational standpoint or clinically ideal, individuals found NCR are legally entitled to the least restrictive and least onerous disposition that still meets the demands of public safety: Kalra (Re), 2014 ONCA 233, at para. 10; Valdez (Re), 2018 ONCA 657, at para. 21.

[24] Institutional rule compliance, while potentially relevant, is also not determinative. Difficult moments, minor rule violations, or behaviour that diverges from mainstream expectations do not automatically indicate risk, nor should they overshadow evidence of stability or progress. Disagreements with the treatment team or behaviours shaped by disability cannot be used to strip a person of dignity or set unrealistic standards that do not account for the challenges of mental illness. A holistic assessment is required – one that considers the whole person, including strengths and improvements, rather than focusing solely on a list of perceived shortcomings. People found NCR must be treated as individuals deserving of dignity, even when they do not fit neatly into institutional norms: Marmolejo, at paras. 44-47; R. v. Leonce, 2021 ABCA 270, 28 Alta. L.R. (7th) 109, at para. 70; R. v. H.M.H., 2021 ABCA 118, 404 C.C.C. (3d) 71, at paras. 17, 36-44, 58-62; G., at para. 61; Winko, at para. 74; Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, at para. 67.

[25] Fifth, the Board must exercise its own independent judgment. While psychiatrists and treatment teams provide critical expertise – especially given the individual’s history of mental illness and the need to ensure community safety – their opinions must still be assessed carefully. Expert evidence should be rooted in concrete facts and cannot replace the Board’s responsibility to apply the legal standards. Conclusions based on speculation or unsupported assumptions cannot justify restrictions on liberty, particularly when the goal is to balance safety with meaningful rehabilitation and avoid unnecessary institutionalization: Leonce, at paras. 71-76; Williams (Re), 2021 ONCA 90, at para. 15; Carrick (Re), 2018 ONCA 752, at para. 24; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 37, 59; International Air Transport Association v. Canada (Transportation Agency), 2024 SCC 30, 496 D.L.R. (4th) 385, at para. 78.

[26] Finally, the same care is required with hearsay evidence. While admissible, it must be carefully evaluated — particularly when it portrays people found NCR negatively. The Board must consider reliability concerns and any conflicting evidence, including NCR individuals’ own account: Campbell (Re), 2019 ONCA 973, at paras. 20-21; Ranieri (Re), 2015 ONCA 444, 336 O.A.C. 88, at para. 17.

E. standard of review

[27] To uphold these guarantees, Parliament gave people found NCR the right to appeal Board decisions to the Court of Appeal. The court may set aside a disposition if it is unreasonable or unsupported by the evidence, based on a legal error, or results in a miscarriage of justice. For questions of reasonableness, the standard is whether the Board’s reasons are coherent, rational, and justified in light of the record and the law. If this standard is met, the Board’s reasons are owed deference, reflecting respect for its expertise and its legislated role. Errors of law, however, are reviewed for correctness: Winko, at para. 71; Sookram (Re), 2024 ONCA 823, at para. 10; Mazzei, at para. 16.

[28] Because the Board exercises significant authority over a group of individuals who are often particularly vulnerable due to their mental health needs, its decisions require careful and transparent justification. Each annual hearing carries substantial consequences – not only for the individual, who may continue to face restrictions on liberty, but also for the broader community, whose safety remains paramount. Given these stakes, the Board’s reasons should clearly reflect the careful balancing that Parliament intended. This includes thoughtfully engaging with the potential impacts of its decisions and explaining how its conclusions are supported by the evidence and consistent with the legal framework: Magee (Re), 2020 ONCA 418, at para. 19, citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 133; Vavilov, at paras. 134-35; Pepa v. Canada (Citizenship and Immigration), 2025 SCC 21, 504 D.L.R. (4th) 1, at paras. 115-16; Woods, at paras. 35, 51.

F. ANALYSIS

[29] When detention has serious consequences — particularly where the person found NCR is classified as ALC, and no longer clinically requires inpatient treatment — the Board’s reasons must reflect the gravity of restricting liberty. While the Board acknowledged that Mr. Ramos did not require inpatient care and remained detained only because of housing issues, it did not address this with the level of scrutiny the situation required.

[30] The statutory framework presumes liberty in the absence of significant risk and seeks to maximize liberty even when risk exists. Where clinical grounds no longer justify detention, continued confinement — however temporary — requires strong and specific justification.

(1) Conditional Discharge and Compulsory Mechanisms

[31] The Board expressed concern that Mr. Ramos might not comply with a readmission order under a conditional discharge. Yet he proposed safeguards – namely, a Young clause and treatment compliance condition – designed precisely to address that risk. In these circumstances, a conditional discharge was a realistic option, and the Board was required to consider its viability carefully. That meant assessing: (1) whether Mr. Ramos would, in fact, voluntarily attend for treatment, and (2) whether compulsory mechanisms could adequately ensure compliance. While detention may still be necessary where hospital-approved housing is required to protect the public, the Board could only reach that conclusion after fully analyzing the adequacy of conditional discharge with compulsory terms: Young, at para. 37; Valdez, at paras. 22-23; Brockville Psychiatric Hospital v. McGillis (1996), 1996 CanLII 1828 (ON CA), 2 C.R. (5th) 242 (Ont. C.A.), at para. 4.

[32] On the first factor, the Board noted a risk that Mr. Ramos might not comply with a readmission order. But the record shows a history of compliance and voluntary readmission, with no evidence he would ignore lawful conditions. The concern was, therefore, speculative and not supported by the evidence.

[33] Greater independent judgment and closer scrutiny of the psychiatrist’s opinion were required. Her view – that Mr. Ramos would refuse admission if he had other housing – was speculative and based on a counterfactual. In fact, his past cooperation after eviction is evidence of compliance, not proof that he would resist admission under different circumstances.

[34] As to the second factor, Mr. Ramos proposed enforceable conditions – such as a Young clause and treatment compliance term – that directly addressed the concern about treatment refusal. The Board did not analyze how these mechanisms operate in practice, including timelines and enforcement under s. 672.93(2) of the Criminal Code, or their potential to mitigate risks. Instead, it focused on involuntary admission under the Mental Health Act, R.S.O. 1990, c. M.7, a measure outside its jurisdiction. This omission undermines the reasonableness of the decision.

[35] The Crown argued that these mechanisms could not guarantee readmission, citing Negash (Re), 2018 ONCA 179, at para. 12, which the Crown interprets as holding that s. 672.93(2) does not compel hospital readmission, which requires voluntary agreement or involuntary admission under the Mental Health Act.

[36] Accepting this interpretation of Negash would have far-reaching consequences. As one commentator has observed, it would render Young clauses largely ineffective, potentially leading the Board to order detention in cases where a conditional discharge could otherwise promote liberty and reintegration: Michael Feindel, “Mechanisms of ‘Return’ to Hospital Under the Ontario Review Board,” in Anita Szigeti et al., eds., Canadian Anthology on Mental Health and the Law (Toronto: LexisNexis Canada Inc., 2024) 619, at pp. 640, 652. This would worsen the already troubling barriers to the use of conditional discharges identified in Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 33-39.

[37] In fact, Young reached the opposite conclusion. As it explained, s. 672.93(2) empowers courts to order re-confinement in hospital following a breach of conditional discharge: at paras. 26, 32. This interpretation, later echoed in R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82, at para. 97 & fn. 23, ensures that compulsory readmission is available but subject to judicial authorization, thereby safeguarding liberty while maintaining accountability. It accords with s. 672.93(2)’s broad wording, which permits a justice to make any order “appropriate in the circumstances,” and advances its public safety purpose.

[38] Thus, to the extent that it suggests otherwise, Negash was rendered inadvertently or per incuriam. It overlooked both Young and Conception. Had those precedents been considered, the outcome would have differed: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460, at para. 77.

[39] Because per incuriam decisions are an exception to the five-judge rule, a three-judge panel may overturn Negash on this point: McArdle v. Bugler, 2007 ONCA 659, 87 O.R. (3d) 433, at para. 27. Respecting Young and Conception requires doing so here: Sullivan, at para. 75; R. v. Kirkpatrick, 2022 SCC 33, [2022] 2 S.C.R. 480, at paras. 205, 267, per Côté, Brown, and Rowe JJ. (concurring).

(2) Inquiry into Family Accommodation & Mr. Ramos’s Wishes

[40] Mr. Ramos proposed living with his aunt and uncle or his partner if community housing could not be secured. Both had long been supportive and informed about his condition. The hospital did not investigate these options in detail, despite the psychiatrist’s admission that they could work. The psychiatrist also seemed unaware of evidence in the hospital’s own report describing his partner as a positive influence and his uncle as a long-standing father figure. Instead, she assumed his relatives were distant sources of support without inquiring further.

[41] The Board accepted this lack of information without further inquiry. While it acknowledged Mr. Ramos’s wishes, it appeared to misunderstand them – assuming he wished to live with his parents, despite one being deceased and his limited contact with the other.

[42] The Board has a duty to seek relevant evidence, especially when alternatives are raised. Simple steps, such as contacting family members, might have clarified their suitability. This duty was especially pressing given the hospital’s prolonged inability to secure community housing. In the meantime, Mr. Ramos could not spend in-person time with his aunt and uncle because of their work schedules. The psychiatrist’s preference for community housing did not relieve the Board of its duty to consider whether family accommodation might nonetheless be the least restrictive and least onerous option consistent with public safety.

[43] Mr. Ramos’s wish to live with supportive relatives or his partner also reflected Winko’s emphasis on respecting the dignity and liberty of people found NCR and recognizing their legitimate aspirations. Seeking proximity to loved ones is natural, and it is reasonable to explore such options when systemic barriers delay community housing. Mr. Ramos was well placed to assess that living with supportive people would meet needs unmet by detention, and his wishes deserved genuine consideration.

[44] The Board did not undertake this analysis. At times, it seemed to view his wishes as evidence of risk, suggesting he was defying his treatment team by expressing a desire to live with family or his partner.

[45] Closer attention to Winko’s caution against exaggerating dangerousness would have helped. Expressing preferences is not a sign of risk, but of trust in the treatment team, which supports effective care: McInerney v. MacDonald, 1992 CanLII 57 (SCC), [1992] 2 S.C.R. 138, at pp. 152-53. The Board’s reasoning on this point was speculative and not supported by the record. Even the psychiatrist acknowledged that family accommodation could be viable. Wanting to live with loved ones is not evidence of future non-compliance with treatment conditions, and it would have been better for the Board to avoid using his wishes against him.

(3) Assessment of Risk

[46] The Board cited potential cannabis use, the risk of future instability, and a need for structured support as reasons to justify continued detention. While these concerns reflect legitimate attention to community safety, many of the conclusions drawn were speculative and not strongly supported by the record. There was no evidence to suggest that Mr. Ramos’s permitted cannabis use had contributed to psychiatric deterioration or violence: McAnuff (Re), 2016 ONCA 280, 130 O.R. (3d) 440, at paras. 37, 43-44. At the same time, his stability in the community, consistent work history, and voluntary engagement with support services indicated a pattern of responsible behaviour and low assessed risk. The finding that he required the structure of a hospital setting also sat uneasily alongside the Board’s acceptance that he did not require inpatient supervision, as well as clinical evidence indicating only minimal support needs and the outpatient team’s recommendation for a more independent living arrangement.

[47] The legal test must also remain distinct from matters of rule compliance. Although it is reasonable for the Board to consider minor infractions, the question is whether they meaningfully relate to public safety or the statutory threshold for hospital detention. Issues such as curfew lapses, borrowing small amounts of money, or interpersonal disagreements – while not ideal – did not indicate increased risk in this case. Overemphasizing them risks penalizing behaviours that may stem from limited resources, unsuitable housing, or efforts to navigate daily life with mental illness. As G. emphasized, individuals found NCR are entitled to be treated with “dignity in their plurality”: at para. 61. A balanced assessment should have acknowledged that these minor concerns did not endanger the public and that they were outweighed by Mr. Ramos’s many strengths and the substantial progress he had made since the index offence.

[48] The allegations that Mr. Ramos shared cannabis with co-residents or pressured them for money required careful scrutiny. These claims were unproven, were not shown to have caused harm, and relied largely on hearsay. Because Mr. Ramos denied the conduct, fairness required the Board to examine the reliability of the allegations and explain why it preferred the hearsay over his account. Their inclusion in a hospital report did not, on its own, justify accepting them. Without clearer substantiation, these allegations could not reasonably serve as the foundation for adverse findings.

[49] Even had these concerns been confirmed, they should not have overshadowed Mr. Ramos’s liberty interests and reintegration needs – especially given the Board’s own acceptance that he did not require hospital detention to protect the public. Maintaining him in an unnecessarily restrictive environment placed obstacles in the way of his reintegration and imposed conditions that did not align with his clinical profile or social needs.

[50] Proper attention should also have been given to the direction in Winko that the index offence, no matter how serious, does not itself create a presumption of ongoing dangerousness. The Crown correctly noted the gravity of Mr. Ramos’s past offences, but the record also showed that he had engaged in treatment, maintained stability, avoided violence, and cooperated fully with CAMH following his eviction. This sustained progress suggested that greater liberty could be safely considered. Parliament has emphasized that individuals found NCR must be treated with dignity and recognized for their capacity to change; accordingly, Mr. Ramos’s current strengths deserved meaningful weight.

[51] Some factual findings also appeared inconsistent with the evidence. The statement that Mr. Ramos “decompensated and eloped” was inaccurate: the record indicates that he returned voluntarily after an administrative misunderstanding, had not deteriorated psychiatrically, and was held overnight by police through no fault of his own. Similarly, he followed CAMH’s rules regarding cannabis by asking to smoke off-site, and his lottery spending was minimal. The Board also understated the duration of his hospital readmission – an important contextual fact. When considered together, these inaccuracies undermine confidence in the decision’s overall reasonableness.

[52] The Board also proceeded on the assumption that Mr. Ramos had a “considerable criminal record.” In reality, many of the historical incidents were situations in which police were involved but charges were not laid, or were laid and later withdrawn. His single finding of guilt – failure to comply with an undertaking – resulted in a conditional discharge more than three years earlier, leaving him without a criminal record and preventing the Board from using that disposition to cast negative judgment on his character: Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2008 SCC 48, [2008] 2 S.C.R. 698, at paras. 16, 20; Criminal Records Act, R.S.C. 1985, c. C-47, s. 6.1(1)(b).

[53] The Crown suggested that the term “criminal record” was used informally to refer to past police encounters. However, that terminology carries significant stigma and may unintentionally signal assumptions of bad character or a propensity for future offending. Its use can, therefore, introduce prejudice even in the absence of any conviction.

[54] While past police encounters can sometimes provide helpful context, a careful distinction must be maintained between such encounters and actual convictions. Merging them risks undermining the presumption of innocence and can perpetuate the effects of systemic over-policing, particularly among marginalized communities. This concern is especially relevant here, as Mr. Ramos is a Black man with mental health challenges – factors that research and jurisprudence recognize as being associated with disproportionate police contact: Winko, at paras. 36-37; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 90-95; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 154, per Binnie J. (concurring).

[55] Mr. Ramos’s appeal also underscores the importance of acknowledging systemic anti-Black racism within both the justice system and forensic mental health settings: McFarlane (Re), 2022 ONCA 633, at para. 33, citing R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 1. The hospital report itself noted that his first police encounter occurred in the context of race-based carding. Considering this social context helps provide a more complete understanding of the experiences of racialized individuals and the barriers they face, and it is consistent with the recognition that people with mental disabilities often have diverse needs shaped by systemic factors: R. v. I.M., 2025 SCC 23, 505 D.L.R. (4th) 1, at paras. 164, 166; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 81.

[56] In this case, the broader social context suggests that some of Mr. Ramos’s past police interactions may reflect systemic practices rather than behaviour indicative of genuine risk. Recognizing this does not diminish the importance of public safety; rather, it ensures that risk assessments remain accurate and grounded in reliable indicators. In other cases as well, such contextual evidence may help illuminate an NCR individual’s mental health needs, reintegration potential, and the kinds of supports that best promote stability: Aghdasi (Re), 2011 ONCA 57, 280 O.A.C. 119, at paras. 19-25. Where the record signals that these considerations may be relevant, the Board has a responsibility to take them into account or to inquire further, even when the parties do not explicitly raise them.

[57] For these reasons, the risk analysis in this matter did not fully meet the standard required by s. 672.54 of the Criminal Code for determining the disposition that is least restrictive and least onerous while still ensuring the safety of the public.

G. SYSTEMIC PRESSURES

[58] This case brings into focus the broader systemic pressures within the NCR system, including the limited availability of appropriate housing and the difficult circumstances faced by individuals who live with both mental health conditions and significant social challenges. These realities make the Board’s task more complex: dispositions must continue to prioritize public safety while also supporting meaningful reintegration. It is important that individuals are not effectively penalized for barriers beyond their control, particularly when those barriers stem from gaps in housing, resources, or community supports. Approaching dispositions in this balanced way helps advance Parliament’s goals of promoting liberty, dignity, and equality for people found NCR and helps guard against situations where individuals risk prolonged or unnecessary institutionalization.

[59] Addressing these pressures requires proactive and flexible responses so that Parliament’s scheme is not weakened, and individuals’ Charter rights are not inadvertently limited, as occurred in Shortt (Re), 2020 ONCA 651, 152 O.R. (3d) 449. Although Shortt involved exceptional facts, the systemic challenges it exposed are more commonplace. If these challenges are left unaddressed, they jeopardize the legislative promise of maximizing liberty consistent with public safety and may hinder the ability of NCR individuals to reintegrate and participate fully in community life. Both the Board and hospitals play an important role in ensuring that these individuals are supported in ways that enhance their stability and autonomy, rather than pushing them to the margins: Shortt, at paras. 47-52.

H. REMEDY

[60] The appropriate remedy is to remit the matter to the Board for a new hearing before a differently constituted panel, to be held as soon as reasonably possible. It would not be appropriate for this Court to substitute its own findings about family accommodation or the effectiveness of proposed conditions without further evidence.

[61] The new hearing should proceed with the following directions:

1. Conditional Discharge: Assess the effectiveness of a Young clause and treatment compliance condition, taking into account timelines, enforcement mechanisms, and Mr. Ramos’s treatment history.

2. Family Accommodation: Make reasonable inquiries into the viability of Mr. Ramos living with his partner or relatives, including their understanding of his circumstances and ability to provide support.

3. Liberty Interests: Carefully evaluate whether continued detention is justified in light of his ALC classification, compliance with treatment, and the relatively low risk he poses.

4. Mr. Ramos’s Wishes: Give due consideration to his expressed wishes and ensure they are not treated as evidence of dangerousness. To support his participation, the Board may wish to allow him to speak at the start of the hearing, as suggested by former Board member, Professor Jamie Cameron.[^2]

5. Reporting: The hospital must provide a detailed report within 30 days of this judgment on its housing efforts and assessment of family accommodation.

I. DISPOSITION

[62] The appeal is allowed. The Board’s disposition dated November 20, 2024, is set aside. The matter is remitted for rehearing before a differently constituted panel, with the above directions.

Released: December 1, 2025 “M.T.”

“M. Tulloch C.J.O.”

“I agree. J. Dawe J.A.”

“I agree. R. Pomerance J.A.”

[^1]: While the focus remains on Parliament’s intent, the Convention is relevant context that informs the interpretation of Part XX.1: Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, [2022] 2 S.C.R. 303, at paras. 45, 47-48; Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at paras. 69-71.

[^2]: See Jamie Cameron, “Indefinite Detention Under Part XX.1 of the Criminal Code and Winko v. British Columbia,” in Anita Szigeti et al., eds., Canadian Anthology on Mental Health and the Law (Toronto: LexisNexis Canada Inc., 2024) 457, at pp. 470-71.