Health Law - ONCA

An appeal from an Ontario Review Board disposition dated January 24, 2019, concerning a detention order for the appellant.

The appellant sought to include a term allowing community living at the Hospital's discretion, arguing it was a viable prospect within the year and would allow placement on a waiting list for community living.

The Board rejected these arguments after full consideration of the evidence.

The Court of Appeal upheld the Board's decision, noting that the Board had expanded the order to permit community access under indirect supervision, which the appellant was utilizing.

The appellant appealed an Ontario Review Board order detaining her in the General Forensic Unit at the Centre for Addiction and Mental Health.

The appellant had been found not criminally responsible on account of mental disorder for charges of possession of a weapon for dangerous purposes, assault with a weapon, and aggravated assault.

She sought an absolute or conditional discharge.

The Court of Appeal upheld the detention order, finding that the appellant continued to pose a significant threat to public safety based on her active psychiatric symptoms, stated intention to cease medication if released, vulnerability to opiate-based medications, and history of medication non-adherence.

The court found the Board's reasoning sound and the disposition reasonable and necessary.

The appellant appealed the Ontario Review Board's decision ordering his continued detention at the Brockville Mental Health Centre.

The appellant had been found not criminally responsible for reasons of mental disorder in 2008 and 2011.

The Court of Appeal allowed the appeal on three grounds: (1) the Board improperly used the appellant's request for discharge as evidence of lack of insight; (2) the Board's analysis on whether the appellant would pose a significant risk to public safety was insufficient and conflated risk of mental health relapse with risk to public safety; and (3) the Board improperly included a finding that the appellant had sexually assaulted a minor when he had been acquitted of that charge.

The appellant was entitled to a new hearing before the Board.

An NCR accused appealed the Ontario Review Board's disposition ordering his detention at the General Forensic Unit of the Centre for Addiction and Mental Health with discretionary community living privileges.

The appellant argued he posed no significant risk to public safety, citing 15 years without violent behaviour, and sought an absolute discharge or conditional discharge.

The Court of Appeal upheld the Board's decision, finding that the Board properly considered all relevant factors under section 672.54 of the Criminal Code and reasonably concluded the appellant continues to pose a significant threat to public safety based on his mental illness, lack of insight, substance abuse issues, and criminal history.

The court emphasized that absence of violent behaviour does not eliminate risk of serious psychological harm, and that Part XX.1 is designed to protect public safety before violence occurs.

An appeal from an Ontario Review Board disposition granting a conditional discharge to an NCR accused.

The appellant sought an absolute discharge, arguing he no longer posed a significant threat to public safety.

The Board found the appellant continued to pose a significant threat and imposed conditions including psychiatric medication compliance, monthly hospital reporting, and substance abstinence.

The Court of Appeal found the Board applied the wrong legal test, conflating the possibility of decompensation with a positive finding of significant threat.

However, fresh evidence of subsequent concerning behaviour (drug use, medication non-compliance, renewed focus on the victim) warranted remission to the Board for reassessment under the correct legal standard.

The appellant appealed the Ontario Review Board's December 27, 2018 disposition ordering his detention on a forensic unit at the Centre for Addiction and Mental Health with specified privileges.

The appellant contended that the Board departed from a joint submission of the parties by rejecting his request for community privileges accompanied by an approved person, and that he was denied procedural fairness.

The Court of Appeal dismissed the appeal, finding that no joint submission was made and that the Board's decision requiring staff accompaniment was amply supported by evidence of the appellant's history of violence, hallucinations, and medication non-compliance, as well as the opinion of his treating psychiatrist.

The appellant appealed a hybrid disposition ordered by the Ontario Review Board that imposed a detention order requiring detention on the Secure Forensic Unit with discretion to transfer to the General Forensic Unit.

The sole ground of appeal was that the Board failed to consider the appellant's liberty interest when imposing this condition rather than ordering immediate transfer to the General Forensic Unit.

The Court of Appeal dismissed the appeal, finding that the Board's reasons, read as a whole, were faithful to the requirements established in Pinet v. St. Thomas Psychiatric Hospital.

An appeal under Part XX.1 of the Criminal Code concerning the disposition of an individual found not criminally responsible on account of mental disorder.

The appellant challenged the Ontario Review Board's decision to maintain a detention order rather than grant a conditional discharge.

The appellant argued his risk could be managed safely in the community with a conditional discharge and resort to the Mental Health Act.

The Court of Appeal upheld the Board's decision, finding it was not unreasonable given the evidence of the appellant's lack of insight into his mental illness, continued cannabis use, limited protective effect of anti-psychotic medication, and risk factors including occasional violence.

The appellant appealed his not criminally responsible (NCR) verdict on account of mental disorder, asserting that his guilty pleas were invalid due to ineffective assistance of counsel.

The trial defence counsel, despite the appellant's stated opposition to putting his mental health in issue, unilaterally pursued an NCR disposition by requesting a psychiatric assessment under the Youth Criminal Justice Act.

The counsel failed to provide effective assistance by stepping outside his role as defence counsel, acting more as a social worker or parent.

The appellant and his parents did not fully understand the implications of an NCR finding on the appellant's liberty interest.

Additionally, the appellant had a potentially viable defence to the arson charge, claiming the fire was accidental, but counsel persuaded him to plead guilty to access the NCR disposition.

The court found the entire process was fundamentally flawed and denied the appellant procedural fairness.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated September 19, 2018.

The appellant had been on track for a conditional discharge but experienced two significant periods of decompensation in the year preceding the Board hearing.

The Board expressed serious concerns about inadequate medical investigations, including the absence of neurological examination and CT scan, and noted the appellant's significant decline from a relatively high-functioning individual to one who was confused, amotivated, and unable to manage her own medication.

The Board refused to order a four-month review despite being specifically requested to do so.

The appellant, found not criminally responsible on account of mental disorder for aggravated sexual assault in 2013, appealed a disposition order from the Ontario Review Board requiring his detention in the secure unit at the Centre for Addiction and Mental Health.

The appellant challenged the order as unreasonable and argued the Board should have intervened to break a treatment impasse.

The Court of Appeal upheld the disposition, finding that the appellant posed a significant threat to public safety based on his history of elopement, substance use, and limited understanding of sexual consent.

The court determined that detention in the secure unit was the least onerous and least restrictive disposition and that rehabilitative programming was available in that setting.

The appellants appealed a motion judge's order granting the respondents leave to amend their statement of claim to substitute the names of three doctors for "Dr. John Doe Anesthesiologist." The motion judge relied on the doctrine of misnomer and applied the "litigating finger" test, finding that the doctors would have known the claim was directed at them based on the notice of action, medical records, and their status as anesthesiologists.

The Court of Appeal upheld the motion judge's decision, finding no error in principle or palpable and overriding error in the alternative finding based on the notice of action served within the limitation period.

An appeal from an Ontario Review Board disposition concerning an NCR (not criminally responsible) accused who had been under the Board's supervision since 2005 following a nonviolent offence committed during a psychotic episode.

The Board concluded the appellant remained a significant threat to public safety and ordered his transfer from CAMH to St. Joseph's Mental Health Care.

The appellant challenged both the finding of significant threat and the Board's failure to consider a conditional discharge.

The Court of Appeal upheld the Board's finding that the appellant posed a significant threat but found the Board erred in failing to consider whether a conditional discharge was the least onerous and least restrictive disposition available.

The appellant appealed a disposition of the Ontario Review Board that found him to remain a significant threat to public safety and ordered a conditional discharge with reporting and drug testing requirements.

The appellant, found not criminally responsible on account of mental disorder for assault with a weapon in 2007, sought an absolute discharge.

The Court of Appeal upheld the Board's disposition, finding that the Board's conclusion that the appellant would likely discontinue antipsychotic medication, increase cannabis use, and decompensate into psychosis was supported by evidence, including the appellant's lack of insight into his need for medication and his history of drug use.

The appellants brought a motion seeking to appoint the Office of the Public Guardian and Trustee as litigation guardian for one appellant, to require a mental examination, to remove counsel, to extend time to perfect the appeal, and to seal evidence concerning mental health.

The motion judge addressed the sealing and confidentiality issues under the two-part test from Sierra Club v. Canada (Minister of Finance).

The court ordered redaction of solicitor-client communications and certain historical medical information as reasonable alternatives to confidentiality orders.

However, the court declined to grant a confidentiality order for current observations of the appellant's mental state, finding insufficient evidence of necessity under the Sierra Club test.

References to a non-party's health information were also redacted as unnecessary and irrelevant.

An appeal from an Ontario Review Board disposition ordering detention of a dual-status offender at Waypoint Centre for Mental Health Care.

The appellant, found not criminally responsible in 2010 for assault on a minor, was convicted in 2015 of assault causing bodily harm on a nurse at a secure forensic hospital and sentenced to 12 months' imprisonment and three years' probation.

The Board ordered the appellant serve the remainder of his sentence in a hospital at Waypoint.

The appellant challenged the disposition on multiple grounds, including failure to require testimony from the CECC psychiatrist, failure to require testimony from the Minister, failure to hold a review hearing as soon as practicable, presumption of illness rather than wellness, errors of fact, and failure to explain why detention at Waypoint was the least restrictive disposition.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable.

The appellant appealed a Consent and Capacity Board decision finding him incapable of consenting to antipsychotic and mood stabilizer treatment.

The board had granted an adjournment to allow the appellant to obtain counsel, but when the hearing resumed, the appellant appeared without counsel.

The majority held that the board did not breach procedural fairness because the appellant did not refuse legal representation but rather indicated he was prepared to represent himself.

The dissent argued the board failed to follow its own guidelines requiring a mini-inquiry to determine whether the appellant was making an informed decision to proceed without counsel, and that the board should have intervened when the appellant's condition deteriorated during the hearing.

The hospital appealed a mandatory order from the Ontario Review Board requiring it to provide up to two escorted visits per year for a forensic patient to his mother's home for dinner.

The patient had been found not criminally responsible on account of mental disorder for sexual assault offences and had been detained in maximum security since 1989.

The Review Board initially made the visits discretionary but amended its disposition to make them mandatory.

The Court of Appeal allowed the hospital's appeal, finding that the board erred in law and acted unreasonably by imposing a mandatory order without discretion.

The court held that while the board may encourage the hospital to create community visit programs, the terms must remain discretionary to allow the hospital to consider staff availability, patient stability, and the consent of the person to be visited.

The appellant appealed a disposition of the Ontario Review Board dated April 11, 2016, raising an issue regarding the supervisory powers of the Board between hearings.

The Court of Appeal found the appeal to be moot as the Board's disposition had been implemented and the appellant sought no remedy on appeal.

The appeal was dismissed as moot.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated May 13, 2016.

The appellant raised three grounds of appeal: (1) the Board failed to apply the Winko test in concluding the appellant remains a significant threat to public safety and failed to order an absolute discharge; (2) the Board erred in failing to order a conditional discharge; and (3) conditions should be amended to allow community living in Brockville rather than North Bay due to North Bay's inability to receive the appellant.

The Court of Appeal dismissed the first two grounds but allowed the appeal on the third ground, permitting the appellant to live in approved community accommodation in Brockville.