Re: Tyler H. Edgar
ORB File No: 6517
Hearing held on: Wednesday, September 17, 2025
Place of hearing: Waypoint Centre for Mental Health Care (virtual hearing)
Pursuant to: Section 672.81(1) and 672.81 of the Criminal Code
Before:
Chairperson: The Honourable Michael R. Dambrot, K.C.
Members: Ms. Leslie Maunder Dr. Padraig L. Darby Dr. Gjylena Nexhipi Mr. Agi Mete
Parties Appearing:
Tyler H. Edgar: Counsel: Mr. Michael Davies
The person in charge of the Hospital: Counsel: Ms. Julia L. Lefebvre
Attorney General of Ontario: Counsel: Ms. Shannon Curry
Amicus Curiae Ms. Mercedes Perez
REASONS FOR CHARTER RULING
(Dated November 4, 2025)
M. R. Dambrot, K.C., for the panel:
- This ruling concerns the constitutional validity of provisions of the Criminal Code of Canada (the “Code”) that limit the right of an accused found not criminally responsible by reason of mental disorder (“NCR”) or unfit to stand trial (“unfit”) to know and respond to the case presented to the Board by the hospital at their Ontario Review Board (“ORB” or “Board”) disposition hearing. The provisions of the Code in issue permit the Board to withhold information from an NCR accused that would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused.
Introduction
The ORB was established pursuant to Part XX.1 of the Code as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of NCR or unfit accused1.
Where a court renders a verdict finding an accused NCR or unfit, if the Court makes no disposition, the Board is required to hold a disposition hearing and make a disposition in respect to the accused within 45 days of the verdict pursuant to s. 672.47(1), or, if the Court makes a disposition, within 90 days after the disposition.
So long as an accused remains subject to a Board disposition, their disposition must be reviewed annually pursuant to s. 672.81(1) of the Code. The Code also mandates several other hearings in respect of accused under the Board’s jurisdiction that need not be described here.
Section 672.5(11) of the Code provides that at a disposition hearing or review, any party may adduce evidence, call witnesses and submit assessment reports. When an assessment report or other written information relevant to making or reviewing a disposition is submitted to or placed before the Board (“disposition information”), s. 672.51(2) of the Code requires the Board to provide a copy of it to each party and to counsel representing the accused, subject to the exceptions enumerated in s. 672.51.
One such exception is found in s. 672.51(3). That subsection provides:
The court or Review Board shall withhold some or all of the disposition information from an accused where it is satisfied, on the basis of that information and the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused, that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused. [Emphasis added.]
- And when disposition information is withheld from an accused pursuant to s. 672.51(3), the Board is required by s. 672.51(6) to exclude the accused when the information is presented or discussed before the Board at a hearing. That subsection provides:
A court or Review Board that withholds disposition information from the accused or any other party pursuant to subsection (3) or (5) shall exclude the accused or the other party, as the case may be, from the hearing during
(a) the oral presentation of that disposition information; or
(b) the questioning by the court or Review Board or the cross-examination of any person concerning that disposition information.
- This ruling concerns the constitutional validity of s. 672.51(3) and (6) as well as certain related provisions of the Code. More specifically, it responds to a claim by Mr. Edgar that these provisions do not conform to the principles of fundamental justice guaranteed by s. 7 of the Charter.2
Background
Mr. Edgar suffers from schizophrenia, borderline personality disorder, and substance use disorders. On April 16, 2014, he was found NCR on charges of assault with intent to resist arrest, mischief not exceeding five thousand dollars, and two counts of failure to comply with a probation order, all contrary to the Code. He has remained under the jurisdiction of the Board since that date.
Initially, Mr. Edgar was a patient at the Royal Ottawa Mental Health Centre (“ROH”). He progressed reasonably well and by 2016 he was living in the community on a conditional discharge. However, his mental health deteriorated, he became more violent and ultimately was detained in the ROH. He spent 2017 to 2019 largely as an inpatient.
Mr. Edgar’s time at ROH came to an end in the summer of 2019. A particularly violent episode at ROH resulted in his transfer to the high-security psychiatric facility at the Waypoint Centre for Mental Health Care (“Waypoint” or “the Hospital”), on July 10, 2019. Mr. Edgar is currently bound by a disposition dated November 27, 2023, detaining him at Waypoint, where he remains to date. With some exception at the beginning of his time at Waypoint, he has been in seclusion at Waypoint due to his violent behaviour. By the time the Board hears the merits of his current annual hearing, Mr. Edgar will have been in seclusion for about 6 years.
The Circumstances Leading Up to Mr. Edgar’s Current Annual Review
Mr. Edgar’s current annual review has a rather tortured history.
The review was initially scheduled to be heard on December 6, 2024. The hearing commenced on that date. Waypoint submitted two versions of a hospital report to the Board, one of which was shared with the Mr. Edgar and his counsel, and a second one that was not. The second report was identical to the first except that it included an appendix that contained additional information that the hospital sought to withhold from Mr. Edgar on the basis that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused within the meaning of s. 672.51(3). At the outset of the hearing, the hospital brought a motion to the hearing panel for an order that the information in the appendix be withheld from the accused pursuant to that section.
That panel proceeded to hear the substance of the hospital’s motion in camera, and in the absence of the accused and his counsel. At the conclusion of the in-camera portion of the hearing, but before ruling on the hospital’s motion, the panel invited submissions from counsel for Mr. Edgar. Counsel suggested that amicus curiae be appointed so that the evidence called on the motion could be “subject to the rigours of cross-examination” and so that submissions could be made. After hearing counsel’s suggestion, the panel directed that “an amicus well-versed in medical ethics and procedural fairness was required to review the transcript of the evidentiary portion of the in-camera preliminary motion in order to provide written guidance to the Panel and advise how best to proceed in the circumstances”. The panel also required that the appointed amicus “be well versed in the Law Society of Ontario’s Rules of Professional Conduct which are also applicable to the matter at hand.”
The panel then adjourned the hearing with the intention of remaining seized and continuing the hearing at a future date. However, in the result, Ms. Perez was appointed as amicus, the December 6, 2024, hearing was treated as a “mistrial”, and a new panel was convened to hear the entire matter afresh.
On April 25, 2025, Mr. Edgar’s annual hearing proceeded before a panel of the Board chaired by Mr. J. Goldenberg (the “Goldenberg panel”). It heard Waypoint’s preliminary motion pursuant to s. 672.51(3) and a consequential motion for an order pursuant to s. 672.51(6) that, should the motion pursuant to s. 672.51(3) be granted, the accused and his counsel be excluded from the hearing on the merits when the excluded evidence is presented orally and when there is questioning or cross-examination about the information.
The hearing proceeded in the absence of Mr. Edgar and his counsel, but in the presence and with the active participation of Ms. Perez as amicus. Counsel for the accused was present at the outset of the hearing, and, among other matters, asked to make representations to the panel at the conclusion of the hearing, and indicated that he understood that he and Mr. Edgar would not be present during the hearing. He also said, “I don’t want to take my agreements to this process as waiving any rights that Mr. Edgar might have subsequently to challenge the constitutionality of this section that allows for information to be withheld from him … I don’t want my acceptance of this process to be read as any kind of waiver on Mr. Edgar’s behalf to make a challenge if the need arises …”
Amicus then clarified with the Board that her role would include testing the evidence in cross-examination and making submissions to the Board. She went on to say that although she did not have instructions, she understood that she had a very counsel-like role, “at the end of the spectrum in terms of amicus appointment”. Mr. Goldenberg confirmed that amicus was there to assist the Board, and in doing so, the panel expected her to participate, to cross-examine and to use her judgment, albeit without instructions from Mr. Edgar. Amicus herself, in her factum, described the role she played at the April 25, 2025, motion as “really representing in this case the patient and the patient’s best interests, et cetera.”
After hearing the evidence and the submissions of counsel, the panel invited counsel for Mr. Edgar to return. Mr. Goldenberg assured counsel for Mr. Edgar that amicus had done a full and complete job, an assessment with which this panel, having reviewed a transcript of the hearing, fully agrees.
The hearing on the merits was scheduled to be heard on June 13, 2025. The parties agreed that the Board could be constituted with different members at the June 13, 2025, hearing.
In an order dated May 9, 2025, the Board recorded that it was satisfied that disclosure of the disposition information in question to the accused was likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused, and ordered: (1) that the addendum to the September 11, 2024, hospital report, and the addendum to the November 15, 2024, hospital report be withheld from the accused pursuant to s. 672.51(3) of the Criminal Code; (2) that the accused be excluded from his annual hearing when the excluded evidence is presented orally or when any person is questioned or cross-examined about it, pursuant to s. 672.51(6) of the Code; (3) that the accused be excluded from his annual hearing when that evidence is discussed pursuant to section 672.5(10)(b)(ii) of the Code; and (4) that no part of the record of the proceedings in which the accused is excluded pursuant to section 672.5(10)(b)(ii) shall be made available to the accused for inspection pursuant to s. 672.51(8) of the Code. Additional orders were made concerning the availability of the excluded evidence to non-parties and the publication and broadcasting of that information pursuant to sections 672.51(7) and 672.51(11). A copy of the order was provided to Mr. Edgar.
On May 21, 2025, the Board issued reasons for its decision to withhold the information from the accused and exclude him from his own hearing. These reasons have been provided to the hospital, the Attorney General and amicus, but they have neither been provided to Mr. Edgar nor made available to the public. Prior to releasing the reasons, the Board considered whether it could also issue a redacted set of reasons to Mr. Edgar that would provide insight into the panel’s reasoning for ordering the disposition information withheld. However, the panel’s reasoning in this case is so intertwined with the withheld information that this proved not to be possible. To disclose the Board’s reasoning in any meaningful way would make it obvious what the withheld information is.
On May 29, 2025, Mr. Edgar filed a notice of motion to the ORB returnable on June 13, 2025 (the date set for the hearing itself), “under s. 52(1) of the Charter of Rights and Freedoms (sic)3 for an Order finding that sections 672.51(3), (4), (6), (7), (8) and s.672.5(10)(b)(ii) of the Criminal Code of Canada to be of no force and effect due to the breach of the Applicant’s right to life, liberty, and security of the person as protected under s. 7 of the Charter.” Mr. Edgar also sought an order that the withheld material be disclosed to him.
Because the notice of motion was filed a mere two weeks before the date set for the annual review, it was necessary to vacate the hearing date and reschedule the annual review.
At a Pre-Hearing Conference (“PHC”) on June 23, 2025, after being informed that the Attorney General of Canada would not be participating in Mr. Edgar’s constitutional motion, on consent of all parties, the motion was scheduled to be heard on September 17, 2025, by videoconference, and his annual hearing was scheduled to be heard on November 28, 2025.
It was also agreed at the June 23, 2025, PHC, that, in addition to the arguments to be filed by the parties, amicus could file written argument in respect of the constitutional issue by August 14, 2025, in which she could address evidence from the s.672.51(3) motion that is relevant to the constitutional issue. In keeping with the Board’s May 21, 2025, decision allowing the hospital’s s. 672.51(3) motion, it was agreed that amicus’s written argument would not be distributed to Mr. Edgar or his counsel, and should amicus wish to make oral argument, the panel hearing the motion would determine whether it is necessary to excuse counsel for the accused for part or all of her argument.
At a further PHC on June 30, 2025, amicus stressed her position that as an administrative tribunal the panel must make a decision specific to Mr. Edgar’s circumstances and not make a generalized proclamation with regard to the constitutionality of the impugned sections and that absent an evidentiary foundation the panel will be unable to do so.4 To permit her to advance this position, amicus was permitted to refer to the evidence from the s.671.51(3) motion in her factum, and the transcript of the motion to exclude disposition material pursuant to s. 672.51(3) was provided to the panel.
The Constitutional Motion
This panel heard Mr. Edgar’s constitutional motion on September 17, 2025, via videoconference. While Mr. Edgar attended the beginning of the hearing, he chose to absent himself in short order, and with the consent of his counsel and the permission of the panel, the hearing proceeded in his absence pursuant to s. 672.5(10)(a) of the Code.
Ms. Perez, appeared as amicus at this hearing, and will continue to act as amicus at the hearing of the merits.
Counsel for Mr. Edgar remained throughout the hearing. No arguments were made that referenced redacted information from the Hospital Report or related information that was heard before the Goldenberg panel.
The Argument
In his factum and in his oral submissions, Mr. Edgar argued that since he was currently detained at Waypoint pursuant to an ORB disposition, and since the annual review could lead to a further severe deprivation of liberty, his right to liberty was engaged, and accordingly the provisions of the Code that governed his annual review must conform to the principles of fundamental justice guaranteed by s. 7 of the Charter.
Mr. Edgar further argued that because the impugned provisions of the Code permit the withholding of relevant information from an NCR accused and permit excluding an NCR accused from his or her own hearing, they violate the principles of fundamental justice by curtailing procedural fairness. Because he is facing significant consequences in respect of his liberty, procedural fairness requires that he have disclosure of all the evidence that will be relied on at his hearing and that he be present throughout his hearing. Put differently, he argued that he has an unqualified right to know the case presented to the Board by the hospital and to respond to it.
More specifically, he emphasized that he will not be able to challenge the material that has been withheld from him, or to know what kind of evidence to call in response to the evidence he has not seen, and the provisions of the Code do not provide an alternative method or substantial substitute to guarantee procedural fairness. While protecting the life or safety of another person and avoiding significant impairment of the treatment or recovery of the accused are worthy goals, they can be achieved in other ways and do not justify these limitations an accused’s procedural rights.
Amicus filed a redacted factum and an unredacted factum. In both factums, she supported Mr. Edgar’s argument that the impugned provisions are not procedurally fair, but she also added two arguments not raised by Mr. Edgar. She argued that the impugned provisions are not in accordance with two additional principles of fundamental justice: (1) laws that interfere with life, liberty and security of the person cannot be arbitrary; and (2) laws that interfere with life, liberty and security of the person cannot have grossly disproportionate effects. In her unredacted factum, she included excerpts from the transcript of the hearing before the Goldenberg panel to support her argument that the application of the challenged provisions in this case (via the Goldenberg panel Order) establish arbitrariness and gross disproportionality. I will have more to say about her arguments later.
Counsel for the Attorney General, as a preliminary matter, took issue with the fragmentation of this proceeding, all of which is properly Mr. Edgar’s annual review, submitted that the Charter issue should have been heard by a seized Goldenberg panel on April 25, 2025, and could have been appealed after the decision was made.
Substantively, counsel for the Attorney General conceded that the liberty interests guaranteed by s. 7 of the Charter are engaged when an accused is under the jurisdiction of the Board, and that they are accordingly entitled to procedural fairness on an annual review. However, counsel argued that procedural fairness does not mean that an accused has a right to be present throughout the entire hearing nor that they have a right to disclosure that is unfettered. Notice and participation are not invariable constitutional norms; a context-sensitive approach to procedural fairness is required. In some circumstances, the appointment of amicus to attend an ex parte proceeding and the crafting of safeguards to mitigate any potential unfairness can be an adequate substitute.
In the present context, counsel continued, the inquisitorial nature of the proceedings, the absence of a persuasive burden on the accused, and the Board’s authority to appoint amicus with a broad remit, sufficiently protects the accused’s rights and precludes a finding that the impugned legislation is inconsistent with s. 7.
Finally, counsel for the Attorney General argued that in deciding whether to exercise its jurisdiction to grant Charter relief, the board must consider whether the remedy sought is the kind of remedy that would fit within the Board’s statutory scheme. This requires consideration of the scope and nature of the Board’s statutory mandate and functions. The Board has no jurisdiction to grant a remedy that would endanger the safety of the public and frustrate the Board’s mandate. In this case, since the Board has been satisfied that the disclosure of the disposition information in question to the accused is likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused, it has no jurisdiction to disclose it to him.
In the event that the sections in question are inconsistent with s. 7 of the Charter, the Attorney General argued that they are saved by s.1 of the Charter, which provides that the rights and freedoms guaranteed by the Charter are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Counsel for Waypoint adopted the position of the Attorney General and went on, in her factum, to develop a very able argument that this is one of the rare circumstances where, if the impugned provisions do violate s.7, they are saved by s. 1 of the Charter. For reasons that will become evident, I need not rehearse that argument.
The Issues
While Mr. Edgar challenged the constitutional validity of several provisions of the Code, his argument focussed on two sections, s. 672.51(3) and s. 672.51(6), both of which are set out above.
The remaining orders of the Goldenberg panel made pursuant to other provisions of the Code rise or fall depending on the challenge to s. 672.51(3) and (6), and like counsel for Mr. Edgar, I will not focus on them.
I will proceed to consider the following questions:
Does this panel have the authority to consider Mr. Edgar’s challenge to sections 672.51(3) and (6) of the Code pursuant to s. 52(1) of the Constitution Act, 1982 and to grant a remedy to him pursuant to s. 24(1) of the Charter?
Is Section 7 of the Charter engaged?
Do sections 672.51(3) and (6) of the Code conform with the principle of fundamental justice requiring that laws that interfere with life, liberty and security of the person must be procedurally fair?
Do sections 672.51(3) and (6) of the Code conform with the principles of fundamental justice that laws that interfere with life, liberty and security of the person cannot be arbitrary and cannot have grossly disproportionate effects?
If sections 672.51(3) and (6) of the Code do not conform with the principles of fundamental justice, are they saved by s. 1 of the Charter?
Analysis
1. This Panel Has the Authority to Consider Mr. Edgar’s Challenge to [Sections 672.51(3)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec672.51subsec3_smooth) and [(6)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec672.51subsec6_smooth) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) pursuant to [s. 52(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec52subsec1_smooth) of the [Constitution Act, 1982](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
and to Grant a Remedy to Him pursuant to s. 24(1) of the Charter
In R. v. Conway, 2010 SCC 22, at para. 80, the Supreme Court concluded that administrative tribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, (1) have the authority to resolve constitutional questions that are linked to matters properly before them, including consideration of the constitutionality of their enabling statutes pursuant to s. 52 of the Constitution Act, 1982, (2) must act consistently with the Charter and its values when exercising their statutory functions, and (3) may order remedies pursuant to s. 24(1) of the Charter.
The Court further concluded, at para. 84, that the ORB, a Review Board created pursuant to Part XX.1 of the Code, being “a quasi-judicial body with significant authority over a vulnerable population” and being “unquestionably authorized to decide questions of law”, has the authority I have just described.
However, with respect to an administrative tribunal’s authority under s. 52, the Supreme Court made clear in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, at para. 17, that such a tribunal can make no formal declaration of invalidity, that its constitutional decisions are not entitled to curial defence, and that it may simply treat any impugned provision as invalid for the purposes of the matter before it.
Since the Board can make no formal declaration of invalidity, it has no authority to hear a free-standing motion challenging the constitutional validity of some or all of Part XX.1 of the Criminal Code. The Board can only determine constitutional issues that arise in the course of exercising its mandate: Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570 at paras. 50, 57 and 62).
Similarly, when considering the Board’s authority to order remedies under s. 24(1) of the Charter, the Supreme Court stated in Conway, at para. 84, that “… the Board is entitled to decide constitutional questions, including Charter questions, that arise in the course of its proceedings”. Gillese J.A. cited this passage in Starz (Re), 2015 ONCA 318, at para. 110, and continued, at para. 111, that in doing so:
… the Board’s focus is necessarily on the NCR accused person before it. Its role is not to make broad or general pronouncements but, rather, to ensure that the particular NCR accused person is subject to the least onerous and least restrictive conditions consistent with public safety. To that end, the Board has the power to make remedial orders directed at the particular NCR accused person.
Accordingly, when the Goldenberg panel was asked to order that disposition information be withheld from Mr. Edgar, and to order Mr. Edgar to be excluded from part of this hearing, Mr. Edgar had the right to challenge the constitutionality of the provisions that authorized these orders under s. 52, and to seek a remedy under s. 24(1). In the event, he did not do so and instead reserved his right to do so at some later time.
In my view, this approach was not what Conway, Douglas/Kwantlen and Starz contemplate. The challenge should have been made when the question arose. This would have allowed the Board, with input from the parties, to anticipate the scope of the issues, the logical order in which to proceed with them, and the necessity or not of a seized panel. It would have been a more efficient use of resources and time. Importantly, it would also have avoided the situation now before us where we are being asked to sit in review of the constitutionality of what was already done by another panel of this Board, and are being asked to order the disclosure of information that another panel ordered not be disclosed.
The fact that this motion and the motion before the Goldenberg panel are part of the same proceeding does not alter my opinion. However, as (i) this issue has not previously arisen in the Board’s practice, (ii) Mr. Edgar was permitted to “reserve” the issue, and (iii) we do not agree that only the Goldenberg panel has jurisdiction to hear the matter,5 this panel has decided to hear this constitutional motion despite it being raised now, after the pertinent decision has been made. In the future, we will expect any similar challenge to the Board’s authority to be made when the exercise of that authority arises.
2. Section 7 of the Charter Is Engaged
Section 7 of the Charter provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In Carter v. Canada, 2015 SCC 5, at para. 55, the Court explained that to demonstrate a violation of s. 7, a claimant must first show that the law interferes with, or deprives them of, their life, liberty or security of the person. Once they have established that s. 7 is engaged, they must then show that the interference or deprivation in question is not in accordance with the principles of fundamental justice.
In the first step, a claimant must establish “that there has been or could be a deprivation of the right to life, liberty and security of the person [emphasis added]”: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (“Charkaoui (2007)”), at para. 12. So, for example, the risk of imprisonment is sufficient: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, at para. 89.
Here, it is common ground amongst the parties that the first step in Carter is met, and that s. 7 is engaged. We agree. Admittedly, orders made under sections 672.51(3) and (6) do not directly interfere with or deprive an accused under the jurisdiction of the Board of their liberty. However, they must be analyzed in their context.
Dispositions (other than an absolute discharge) do directly interfere with the liberty of those subject to them – an accused may be ordered detained in hospital or may be ordered discharged with conditions that restrict their liberty. It follows that withholding some disposition information from an accused and excluding an accused from part of the hearing under the impugned provisions could interfere with that accused’s ability to advocate for their liberty. As a result, while the invocation of the impugned sections creates no certainty of a deprivation of liberty, it creates a risk of a deprivation. This is sufficient to engage s. 7 of the Charter having regard to what was decided in Charkaoui and Malmo-Levine.
3. [Sections 672.51(3)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec672.51subsec3_smooth) and [(6)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec672.51subsec6_smooth) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) conform with the principles of fundamental justice requiring that laws that interfere with life, liberty and security of the person must be procedurally fair
Section 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice – the basic principles that underlie our notions of justice and fair process. These principles include but are not limited to a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security: Reference re Motor Vehicle Act (British Columbia), s. 94(2), 1985 CanLII 81 (SCC), [1985] 2 SCR 486, at paras. 30 and 61-62; Charkaoui (2007), at para. 19.
I pause to note that Mr. Edgar’s challenge to sections 672.51(3) and (6) relates exclusively to procedural fairness. He says that “the impugned sections violate the principles of fundamental justice by curtailing procedural fairness”. Mr. Edgar attacks s. 672.51(3) as denying him his right to disclosure and s. 672.51(6) as denying his right to be present throughout his disposition hearing, both of which are components of his right to procedural fairness. I prefer to see his challenge respecting these two sections as two components of a single challenge – an argument that the two provisions violate his right to know and respond to the case presented to the Board by the hospital. This parallels, but with alterations suitable to the context, the language used by the Supreme Court in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 to describe an individual’s person’s right to “be informed of the case against him or her, and be permitted to respond to that case”: Harkat, at para. 41.
With respect to his challenge, Mr. Edgar derives support from the right to disclosure developed in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 and its progeny in the criminal context. He derives support as well from the conclusion in the deportation context in Charkaoui, (2007) that certain provisions of the Immigration and Refugee Protection Act (“IRPA”), as it existed at that time, violated s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility declaring that a foreign national or permanent resident (a “named person”) is inadmissible to Canada on grounds of national security based on secret material that the named person does not know and cannot challenge. An important consideration for the Court in reaching this conclusion was that IRPA did not provide for an independent agent to act as a substitute for the named person to protect the named person’s interests.
As useful as an examination of these decisions may be, it is important to bear in mind that s.7 requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake. The procedures required to meet the demands of fundamental justice depend on the context. Societal interests may be taken into account in elucidating the applicable principles of fundamental justice: Charkaoui (2007), at para. 20.
In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at paras. 113-115, the Supreme Court also emphasized the importance of being sensitive to the context of the statute involved and the rights affected in deciding what is required by way of procedural protection under s. 7 of the Charter in any particular case. The Court went on to list a number of factors that should be considered. Of relevance here, the list included: (1) the nature of the decision made, and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”; (2) the role of the particular decision within the statutory scheme; and (3) the importance of the decision to the individual affected. Of note, the Court concluded, “This list of factors is non-exhaustive in determining the common law duty of fairness: Baker, supra, at para. 28. It must necessarily be so in determining the procedures demanded by the principles of fundamental justice.”
The Court again stressed the importance of adopting a contextual approach in assessing the rules of natural justice and the degree of procedural fairness to which an individual is entitled in in Charkaoui v Canada (Citizenship and Immigration), 2008 SCC 38 (“Charkaoui (2008)”) and repeated what had been said in Suresh at para. 113, concerning the nature of the right to procedural fairness in a context where a person had been deprived of rights protected by s. 7 of the Charter, and its emphasis on the importance of being sensitive to the context of each situation.
Context is thus crucial to the proper articulation of whatever rights an NCR accused may have to know and respond to the case presented to the Board by the hospital at their hearing as a principle of fundamental justice guaranteed by s. 7 of the Charter. With this in mind, I turn to the specific s. 7 procedural fairness claims made by Mr. Edgar.
To begin, I will examine the first contextual consideration in Suresh: the nature of the decision made, and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”. I note first of all how much closer the decision here is to an administrative decision, while the decision in prosecution and national security contexts are judicial decisions. They are also both adversarial punitive proceedings. In the former, the state alleges that the accused is guilty of a criminal offence, marshals evidence to establish guilt, and if guilt is found, asks the court to punish the offender. In the latter the state seeks to establish that the subject of the proceeding is inadmissible on national security grounds and exclude them from Canada. A Review Board hearing is entirely different.
It may be helpful to pause here and examine the nature of a Review Board hearing in some detail. When an NCR accused comes before the Review Board, a court will already have been satisfied beyond a reasonable doubt that they committed a criminal act but will have found them not criminally responsible by reason of a mental disorder. The NCR accused is then to be treated by the Board in a special way in a system that is not punitive but instead is tailored to meet the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately. Under this approach, “the mentally ill offender occupies a special place in the criminal justice system; he or she is spared the full weight of criminal responsibility, but is subject to those restrictions necessary to protect the public”: Winko v British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 SCR 625, at para. 30.
In light of the preventive or protective nature of the Board’s jurisdiction over the NCR accused, the offender must be treated with dignity and accorded the maximum liberty compatible with Part XX.1’s goals of public protection and fairness to the NCR accused. Its hearings are inquisitorial, and the accused bears no burden of disproving dangerousness: Winko, para. 43. The nature of a Board’s hearing is well-described in Winko at para. 54:
The regime’s departure from the traditional adversarial model underscores the distinctive role that the provisions of Part XX.1 play within the criminal justice system. The Crown may often not be present at the hearing. The NCR accused, while present and entitled to counsel, is assigned no burden. The system is inquisitorial. It places the burden of reviewing all relevant evidence on both sides of the case on the court or Review Board. The court or Review Board has a duty not only to search out and consider evidence favouring restricting NCR accused, but also to search out and consider evidence favouring his or her absolute discharge or release subject to the minimal necessary restraints, regardless of whether the NCR accused is even present. This is fair, given that the NCR accused may not be in a position to advance his or her own case. The legal and evidentiary burden of establishing that the NCR accused poses a significant threat to public safety and thereby justifying a restrictive disposition always remains with the court or Review Board. If the court or Review Board is uncertain, Part XX.1 provides for resolution by way of default in favour of the liberty of the individual.
This jurisdiction supplants the traditional guilt-innocence dichotomy of the criminal law with an alternative of assessment to determine whether the person poses a continuing threat to society coupled with an emphasis on providing opportunities to receive appropriate treatment: Winko, para. 42. Treatment, not incarceration, is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition. Importantly, then, the context is also therapeutic. One party to the hearing (the hospital) is tasked with caring for and treating the NCR accused all year round. The hospital provides these therapeutic services by way of a team of clinicians (invariably a psychiatrist, but often also social workers, occupational therapists, behavioural therapists, psychologists, nurses and case workers), all of whom have ongoing professional obligations for the well-being of the NCR accused. The hospital must meet its obligations to the Board (for the most part annually) while protecting and fostering these therapeutic relationships.
Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application. The Board’s jurisdiction extends only to those who present a significant threat to society: Winko, at paras. 33-39. And even when the Board finds that an accused presents a significant threat to society, it must then make the order that is the least onerous and least restrictive to the accused consistent with the evidence. This requirement applies not only to the choice among potential dispositions, but also to the particular conditions forming part of the disposition: Penetanguishene Mental Health Centre v Ontario (Attorney General), 2004 SCC 20. The disposition is intended to maximize the accused’s liberty and emphasize treatment even where the accused remains a significant threat to society.
I turn next to the second contextual consideration in Suresh: the role of the particular decision within the statutory scheme. It seems clear to me that the decision to withhold information from an NCR accused would, ordinarily, be far from decisive in respect of the accused’s liberty. This does not detract from what I said in concluding that an accused’s liberty interest is engaged at a Review Board hearing. An accused’s liberty is directly in issue at a disposition hearing or an annual review conducted under Part XX.1 of the Code and withholding disposition information from an accused and excluding an accused from that part of the hearing where the withheld material is discussed could interfere with that accused’s ability to advocate for their liberty. I do not doubt that a right to know and respond to the case presented to the Board by the hospital at their hearing is one of the principles of fundamental justice afforded to an NCR accused. But I do not accept that is as broad as the right advanced by Mr. Edgar.
A right to know the case presented to the Board by the hospital at an NCR accused’s hearing is contained in Part XX.1. When an assessment report or other written information relevant to making or reviewing a disposition is submitted to or placed before the Board (“disposition information”), s. 672.51(2) of the Code requires the Board to provide a copy of it to each party and to counsel representing the accused, subject to the exceptions enumerated in s. 672.51. But the effect of withholding a narrow category of information from the accused in this context is limited compared to the prosecution context or the national security deportation context.
I begin with disclosure in criminal law. The right to disclosure in a criminal prosecution first developed in Stinchcombe flows from the accused’s right to make full answer and defence at their trial. To vindicate this right, there is a general duty on the part of the Crown to disclose the fruits of the investigation, including all information that is not clearly irrelevant, whether or not it is admissible in evidence and whether or not the Crown intends to adduce it, subject to privilege and certain other narrow exceptions. A failure to disclose evidence that may assist the accused in making full answer and defence stands to be of critical importance. This is a far cry from the Review Board context. Rather than being the fruits of an investigation, disposition information is drawn from an entire year of assessments, therapeutic interactions, and often (as in Mr. Edgar’s case) full-time supervision rendering full “disclosure” impossible and unhelpful – only highlights, significant events, and summaries of progress are practical or meaningful.
Having regard to the significant contextual differences between the criminal trial process and the Review Board context, I do not consider Stinchcombe to be a useful guide to the proper articulation of an NCR accused’s disclosure rights guaranteed by s.7 of the Charter.
I turn next to the circumstances of a person facing extended periods of detention on grounds of national security pending possible removal to a country where they may face torture without knowing the case against them and having the ability to challenge. Again, this is very far removed from the circumstances of an NCR accused. In Charkaoui (2007), at paras. 53-64, the Court said that a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case, but that the right to know the case to be met is not absolute, and that participation is not an invariable constitutional norm. Canadian statutes sometimes provide for ex parte or in camera hearings, in which judges must decide important issues after hearing from only one side. The Court emphasized a context-sensitive approach to procedural fairness.
In Charkaoui (2007), national security was the important contextual consideration that justified limiting the extent of disclosure of information to the affected individual. In the end, however, the specific protections in the IRPA at that time were an inadequate substitute for informed participation. However, a revised IRPA scheme that provides for participation of special advocates in closed hearings as a substantial substitute for personal participation by the named person in those hearings has passed constitutional muster: Harkat.
Undoubtedly, Charkaoui (2007) has much to tell us about the contextual approach that must be taken to determining the principles of fundamental justice in any particular legislative scheme. It undoubtedly sheds light on the substitutes for the right to know and respond to the case presented to the Board by the hospital at an NCR accused’s hearing that may permit compliance with s. 7 in some contexts. However, as is the case with Stinchcombe, I do not consider the outcome in Charkaoui (2007) to be a useful indicator of an NCR accused’s disclosure rights guaranteed by s.7 of the Charter.
Before moving on, I pause to note that we are concerned here with the withholding of information in a therapeutic context, a measure not uncommon in the health context to ensure that clinicians can balance the complex and sometime competing demands of their obligations to patients and the broader community.
I turn next to the third contextual consideration in Suresh: the importance of the decision to the individual affected. I do not doubt that the disposition at a Review Board hearing is of high importance to an accused. But I do doubt that a decision on a motion pursuant to s. 672.51(3) and (6) will ordinarily be of any great importance. About this, more later.
This brings me to the specific arguments made by Mr. Edgar in support of his claim that s. 672.51(3) and (6) violate the right of an NCR accused to disclosure of all information relevant to their hearing.
I begin this discussion with the comment that in my view, Mr. Edgar’s focus on disclosure confuses the issue. Disclosure, a concept developed in the criminal law, has no application here. As I have explained, there is no prosecutor at a disposition hearing or review, and there are no fruits of an investigation undertaken by an enforcement agency such as the police. What is really in issue is the right of the NCR accused to be informed of the case to be presented to the Board by the hospital. Section 672.51(1) and (2) provide this right to an NCR accused and have not been called into question by Mr. Edgar. The focus of the s. 7 challenge to s. 672.51 is simply whether the exception found in s. 672.51(3) is constitutional. To repeat, s. 672.51(3) mandates that disposition information be withheld from the accused where the Board
…is satisfied, on the basis of that information and the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused, that disclosure of the information would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused.
Whether the principle at stake here is characterized as a right to disclosure or as a right to know the case to be presented by the hospital, I have no doubt that s. 672.51(1) and (2) suitably codify this constitutional principle in the context of Part XX.1. As I have already explained, the broader requirements of disclosure in the criminal prosecution context are not suitable or workable in this scheme and are not a constitutional imperative in this context.
Nor can it be said that the mere existence of exceptions to the right to know the case to be presented by the hospital is constitutionally impermissible. Even the right to disclosure of relevant information in the criminal law context allows for exceptions for information that is privileged or where concern exists for the security or safety of witnesses or persons who have supplied information to the investigation: Stinchcombe, para. 22. What is in issue here is whether the exception in 672.51(3) is permissible in the Part XX.1 context, taking into account the safeguards in place to substitute for the withheld information.
I said previously that I do not consider Charkaoui (2007) to be a useful guide to the proper articulation of an NCR accused’s disclosure rights guaranteed by s.7 of the Charter, but that it sheds light on the substitutes for full disclosure that may permit compliance with s. 7 in some contexts. At para 59 of Charkaoui (2007), the Court stated that in some contexts, substitutes for full disclosure may permit compliance with s. 7 of the Charter, and went on to provide examples, which need not be rehearsed here. I turn next to examine the context, safeguards and substitutes in the Part XX.1 context.
I begin by reiterating what I have already said about the disposition hearing context. While an NCR accused’s liberty is very much in issue at a disposition or review hearing, the nature of the proceeding is markedly different from most other contexts where liberty is in issue and information is withheld from the subject of the proceeding. The following are some of the contextual considerations.
First, the goal of a disposition hearing is not in any way punitive. The twin goals of a hearing are to protect the public and to treat the mentally ill offender fairly and appropriately. Any restriction on liberty must be the least onerous and least restrictive to the accused consistent with the evidence.
Second, disposition information can only be withheld in the very narrow circumstances where:
(1) the Board is satisfied (on the balance of probabilities)
(2) on the basis of:
(a) the information itself, and
(b) the evidence or report of the medical practitioner responsible for the assessment or treatment of the accused
(3) that disclosure of the information would be likely to:
(a) endanger the life or safety of another person, or
(b) would seriously impair the treatment or recovery of the accused.
Third, motions under s. 672.51(3) are very rare, and while the words of the provision permit the withholding of an entire hospital report, it is difficult to imagine how any but a small fragment of a hospital report could meet the stringent test in that provision. A hospital report typically includes: (1) tombstone information, including the accused’s psychiatric diagnoses; (2) a description of the index offence or offences; (3) the accused’s criminal offence history, if any; (4) the accused’s personal and developmental history, including their childhood and developmental history, intellectual/educational history, employment history, relationship history, relevant medical history, alcohol and drug use history, adult environment, and family mental health history; (5) the accused’s previous psychiatric history, including an often very lengthy account of their year by year progress under the jurisdiction of the Board; (6) the accused’s clinical progress since the last annual review; (7) a risk assessment, including: the most recent actuarial assessment and any historical, clinical risk management assessment; (8) the disposition requested by the accused; (9) the clinical team’s opinion regarding disposition; and (10) and the recommendations of the person in charge. Mr. Edgar’s most recent hospital report is 182 pages in length.
Having regard to the length and nature of a hospital report, as I have already said, it is impossible to imagine how any but a small fragment of a such a report could meet the stringent test in s. 672.5(3). It is also hard to imagine how any withheld fragment of a hospital report could be decisive to the making of a disposition, but I will return to that possibility shortly.
Next, I will outline the two safeguards in the Part XX.1 that substitute for complete disclosure.
First, the NCR accused’s interests are well-protected in this scheme. Section 672.5(8) provides that where the accused is not represented by counsel, the Review Board shall assign counsel to act for the accused “wherever the interests of justice so require”. The Court of Appeal has interpreted this section liberally, so as to permit the appointment of amicus as an alternative to counsel, and to give amicus a broad mandate to protect the accused’s interests. In R. v. LePage (2006), 2006 CanLII 37775 (ON CA), 214 C.C.C. (3d) 105, at para. 29, the Court stated:
In my view, the words of s. 672.5(8) do not preclude the Board from appointing amicus curiae when the interests of justice so require. I would not adopt an unduly technical approach to the question. Certainly, amicus curiae appointed by the court have no solicitor-client relationship with the accused, and may be described as counsel to the court. However, the role of amicus curiae is not strictly defined and continues to evolve. One of the roles of amicus curiae has been recognized as being an assistant to the court when “there is a failure to present the issues (as, for example, where one side of the argument has not been presented to the Court)”: Clark et al. and Attorney-General of Canada (1977), 1977 CanLII 1084 (ON HCJ), 17 O.R. (2d) 593 (H.C.J.). When NCR accused are involved, there is an elevated possibility that all issues may not be presented. In my view, amicus curiae may be appointed by the Board and assigned the role of presenting the issues favouring the accused which otherwise might not be raised. I am satisfied that an amicus curiae who is assigned this role may be said to “act for the accused”.
- The Court of Appeal subsequently considered in greater depth the meaning of the words “wherever the interests of justice so require” in s. 672.5(8). In R. v. Runnalls, 2011 ONCA 364, at paras. 12-13, the Court stated:
[12] We start by noting that the language of the section is mandatory. The Board shall appoint counsel if “the interests of justice so require”. In Ontario, we are fortunate to have a number of lawyers, such as Mr. Davies, who are available to act for an NCR accused or as amicus curiae in these types of cases. Indeed, the Board often appoints counsel.
[13] In considering whether the “interests of justice” require the appointment of counsel, the Board should determine whether there can be a fair hearing if it proceeds with the NCR accused unrepresented. A variety of factors may be relevant to such a consideration, including the wishes of the NCR accused, the mental state of the NCR accused and his or her capacity to participate in the hearing without the assistance of counsel, the history of the proceedings, the nature of the issues likely to arise and the impact of any delay in obtaining counsel. There may well be other factors. No factor is determinative. In the end, the Board should assess the totality of the circumstances in arriving at its decision.
As the Court noted in Runnalls, the Board has a long history of appointing counsel, and amicus as well.
Thus, although the statutory scheme does not explicitly require that amicus be appointed in every case where the hospital seeks to withhold information from an accused, appointing amicus is, in effect, mandatory. A fair hearing of the motion would be difficult, if not impossible, to achieve if were to proceed with the NCR accused absent and unrepresented and without amicus. What is more, when an order has been made under s. 672.51(3) the role of amicus will continue at the substantive phase of the hearing or review during the oral presentation of the withheld evidence and during questioning and cross-examination of any person about it, and amicus will make submissions about the use to be made of the withheld information by the Board in deciding on a disposition.
In my view, the appointment of amicus with a broad mandate is a very meaningful substitute for complete disclosure and full participation. I reach this view, in part, on the basis of the decision of the Supreme Court in Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37. In Harkat, the Court considered whether the IRPA scheme as amended after the Court struck it down in Charkaoui (2007) was now compliant with principles of fundamental justice guaranteed by s. 7 of the Charter. It is necessary to spend a moment describing how the special advocate system works.
One of the changes to the IRPA scheme after Charkaoui (2007) was the addition of special advocates. Under IRPA, the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness may declare a non-citizen (“the person”) to be inadmissible to Canada on the basis that the person came to Canada for the purpose of engaging in terrorism. The reasonableness of the Ministers’ decision is subject to judicial review in the Federal Court. The scheme prevents the person from seeing some of the evidence and information tendered against them on the basis that its public disclosure would harm national security. Hearings to permit the Minister to present information and evidence the public disclosure of which could be injurious to national security or endanger the safety of a person are held before judges in camera and ex parte. The judges are required to appoint special advocates to protect the interests of the named person in these closed hearings.
Special advocates are security-cleared lawyers whose role is to protect the interests of the person and to make up so far as possible for the person’s exclusion from the evidentiary process. During the closed hearings, the special advocates perform the functions that the person’s counsel performs in the open hearings. They do so by challenging the Minister's claims that information or evidence should not be disclosed, and by testing the relevance, reliability, and sufficiency of the secret evidence. They are active participants in the closed hearings. They may make submissions and cross-examine witnesses who appear in those hearings.
The participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the person in those hearings. Indeed, Parliament added special advocates as a feature of the IRPA scheme to bring it into compliance with the substantive requirements of s. 7 of the Charter, as articulated in Charkaoui (2007). The Court in Harkat concluded that it did.
The Court observed, at para. 43, that while full disclosure of information and evidence to the person may be impossible, the basic requirements of procedural justice may be met “in an alternative fashion appropriate to the context, having regard to the government's objective and the interests of the person affected”. Procedural fairness does not require a perfect process, but the alternative to full disclosure and personal participation must constitute a substantial substitute. The Court concluded that the special advocate process does constitute a substantial substitute.
I am of the view that the same conclusion should be reached here.
The reasons for this conclusion in Harkat include the fact that the judge can permit communications between the Special Advocate and the person short of disclosure of the withheld information and can ensure that the special advocates function as closely as possible to ordinary counsel in a public hearing. In the Part XX.1 scheme, there is no bar to communications between amicus and accused at all, except for disclosure of the withheld information, as was the case here.
In oral argument, Mr. Davies placed reliance on the fact that the appointment of amicus is not specifically provide for in relation to the withholding of information under the Part XX.1 scheme. It is true that the Special Advocate scheme is more elaborately spelled out in legislation than is the role of amicus before the Board, but that is to be expected. Special advocates must be carefully selected, carefully vetted by security personnel, and security cleared to be permitted to have access to national security information, and a careful process must be spelled out to ensure the security of such information throughout the process. Here, the choice of amicus can be safely left to the panel, with input from counsel for the accused, and no special security process to handle the withheld information needs to be established. And the Board has a high degree of trust in the competence of the individuals it appoints as amicus and their high sense of responsibility in the handling of sensitive information. It is true that when there is a closed hearing under IRPA, it is mandatory to appoint a Special Advocate. However, as I have explained, it is also mandatory (albeit less explicitly so), subject to the wishes of the NCR accused, to appoint amicus when there is a closed hearing under Part XX.1.
The second safeguard in the Part XX.1 scheme is found in s. 672.51(4). It provides:
Notwithstanding subsection (3), the court or Review Board may release some or all of the disposition information to an accused where the interests of justice make disclosure essential in its opinion.
This provision is the ultimate safeguard of a fair hearing for an NCR accused and, in my view, even standing alone, it is a complete answer to this constitutional challenge. It empowers the Board to provide to an NCR accused information that the Board has found would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused where the interests of justice, in the Board’s opinion, make disclosure essential. Disclosure is obviously essential where despite the participation of amicus, the accused cannot have a fair hearing without it. And if disclosure is given pursuant to s. 672.51(4), s. 672.51(6) would no longer require the accused to be excluded at any time during the hearing.
It is not for this panel to attempt to explore in detail when the interests of justice would make it essential to disclose information to the accused that would be likely to endanger the life or safety of another person or would seriously impair the treatment or recovery of the accused. Obviously, it would not ordinarily do so, because that would make s. 672.51(3) pointless. I note as well that the narrow authority to disclose such information pursuant to s. 672.51 (4) stands in stark contrast to what the Court of Appeal has said would be the case in respect of a Charter remedy under s. 24(1): “the Board has no jurisdiction to grant a remedy that would endanger the safety of the public and frustrate the Board's mandate”: Re Conway, 2010 SCC 22, at para. 9.
In determining whether to exercise the authority in s. 672.51(4), a panel would no doubt take into account considerations such as:
(1) Is the withheld information decisive, or at least important to the making of the disposition, or is it nothing more than a small piece of the puzzle?
(2) Whether decisive or not, is amicus in a position to challenge the withheld information without sharing it with the accused? In answering this question, it must be born in mind that in some cases, challenging the withheld information does not require any input or information from the accused, and in some cases, amicus may be able to obtain pertinent information from the accused or their counsel without disclosing the nature of the withheld information.
(3) Could the withheld information be removed from consideration or could an appropriate disposition be made without any reliance on the withheld information?
There are two other points that I consider to be significant on this issue.
First, if the Board had no authority to withhold information from an accused that would be likely to endanger the life or safety of another person or seriously impair the treatment or recovery of that accused, it would tempt forensic hospitals to simply leave such matters out of their reports in order to cause no harm. It is undoubtedly preferable for the Board, a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of those accused who have been found NCR (see Mazzei v British Columbia (Director of Adult Forensic Psychiatric Services, 2006 SCC 7, at para. 29 and R. v. Conway, 2010 SCC 22, at para. 84), to be aware of such information and treat it appropriately in exercising its mandate rather than to be left in ignorance of it.
Second, it is apparent that the authority to withhold information that, if disclosed to the accused, would be likely to endanger the life or safety of another person, or seriously impair the treatment or recovery of the accused aligns with the objectives of Part XX.1 discussed by the Supreme Court in Winko, at paras. 39-41: protecting society and addressing the mental illness of the dangerous NCR accused by providing opportunities for treatment.
4. [Sections 672.51(3)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec672.51subsec3_smooth) and [(6)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec672.51subsec6_smooth) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) conform with the principles of fundamental justice that laws that interfere with life, liberty and security of the person cannot be arbitrary and cannot have grossly disproportionate effects
As I have explained, the constitutional challenge to the impugned provisions on the basis that they are arbitrary and cannot have grossly disproportionate effects was raised exclusively be amicus. In my view, raising these arguments fell outside her remit, and should not be considered. In explaining why I say this, I need to examine the role of amicus generally, and the scope of the appointment of amicus in this case.
The role of amicus, and the limits to that role, were explored most recently by the Supreme Court in R. v. Kahsai, 2023 SCC 30. In Kahsai, the Court was considering the role of amicus appointed pursuant to the inherent jurisdiction of superior courts to manage their own procedure to ensure a fair trial: Kahsai, para. 35. Here, as I have explained, the power to appoint amicus is statutory. It is found in s. 672.5(8) of the Code, as interpreted by the Court of Appeal in LePage. Section 672.58 limits the appointment of amicus to circumstances where the accused is not represented by counsel, and where the interests of justice so require. Since there is no other guidance or limitations on the role of amicus in Part XX.1, I see no reason to imagine that the role of amicus appointed pursuant to s. 672.51(8) and the limits on that role differ from what the role and limits discussed in Kahsai.
To begin, it is important to understand that it is the Court or tribunal that appoints amicus, and that tailors the scope of the appointment. The purpose of tailoring the scope of the appointment is to enable amicus to help the Court or tribunal by providing a perspective or performing a function that it considers necessary to decide the issues in dispute. This role is justified on the reasoning that a court or tribunal should not have to decide contested, uncertain, complex and important points of law or of fact without the benefit of thorough submissions: Kahsai, at paras. 30 and 37.
The role that may be tailored for amicus is highly adaptable and can encompass duties that exist on a broad spectrum of functions. The precise role for amicus will depend on the particular needs identified by the trial judge – here, the panel. But the role of amicus is not without limits. The Court was clear that amicus would exceed the proper scope of their role once clothed with all the powers, duties and responsibilities of defence counsel. But there is no bar to appointing amicus with defence-like functions when the court determines that an adversarial perspective is needed to ensure a fair trial: Kashai, at para. 39.
Finally, and most importantly on this issue, the Court stated, at para. 43, that the roles that amicus can perform may also be restricted by the constitutional right of the accused to conduct their own defence. Undoubtedly, the decision to bring a motion under s.52 to challenge the constitutional validity of legislation and the decision to bring a motion under s. 24(1) of the Charter for Charter relief fall within the category of litigation decisions reserved to the accused.
But even if a Court could authorize an amicus to bring a motion under s. 52 or under s. 24(1), there are two insurmountable impediments to amicus doing so here.
First, recall that the first panel that heard the aborted motion ordered the appointment of counsel so that the evidence called on the motion could be “subject to the rigours of cross-examination” and so that submissions could be made. The panel further directed that amicus be well-versed in medical ethics, procedural fairness and the Law Society of Ontario’s Rules of Professional Conduct. Amicus was in fact appointed under the authority of that order. Then, when that amicus appeared before the Goldenberg panel, Mr. Goldenberg clarified with her that her role would include testing the evidence in cross-examination, making submissions to the Board, participating, and using her judgment, albeit without instructions from Mr. Edgar.
Nothing in the tailoring of the role by either panel suggested that amicus was authorized to bring a constitutional challenge to sections 672.51(3) and (6) after the Board decided the motion, or to challenge the decision on the motion under s. 24(1) of the Charter. On the contrary, it was counsel for Mr. Edgar, and not amicus, who purported to reserve the right to bring a constitutional challenge to the sections “if the need arose”. There was no hint that amicus would be entitled to participate in such a challenge, far less raise separate grounds for the challenge.
The second impediment is simply that s. 672.5(8), the legislation authorizing the appointment of amicus, limits that authority to circumstances where the accused is not represented by counsel. No doubt Parliament had in mind situations where NCR accused chose not to be represented by counsel. But s. 672.5(8) also permits appointments where, as here, an accused is not represented, and indeed not present, for parts of a hearing for reasons other than choice. But what s. 672.5(8) does not authorize is the appointment of amicus at a hearing or a part of a hearing where the accused is represented by counsel. The words of the section preclude such an appointment, and there is no other authority permitting it. As a result, the appointment of amicus here excludes amicus from duplicating the work done by counsel for Mr. Edgar on this constitutional challenge either orally or in writing or from bringing her own motion for a s. 24(1) Charter remedy on behalf of the accused.
Nonetheless, at the June 30, 2025, PHC, as noted above, amicus took the position that the panel must make a decision specific to Mr. Edgar’s circumstances and not make a generalized proclamation with regard to the constitutionality of the impugned sections and that absent an evidentiary foundation the panel will be unable to do so. Accordingly, amicus was permitted to file an unredacted factum on Mr. Edgar’s Charter motion in which she referred to the evidence from the s.671.51(3) motion. And at the hearing, she told the panel that she was prepared to make submissions about the redacted evidence in the absence of the accused and his counsel, if the Board required it.
Had there been a purpose in placing the excerpts of the in camera hearing before the panel on Mr. Edgar’s s.52 motion, I would readily agree that, in that respect, he would have been effectively unrepresented, and the amicus would have had a role to play. But in my view, there was no such purpose. Mr. Edgar’s challenge was to the constitutionality of the legislation. The legislation is constitutional, or it is not. If it is not, then the Board would simply treat it as invalid for the purposes of the matter before it, and Mr. Edgar would be entitled to the withheld information.
The fact is, we did not examine the redacted evidence on this motion, and we did not hear amicus in the absence of the accused and his counsel. As a result, since s. 672.5(8) limits the role of amicus to circumstances where the accused is not represented by counsel, amicus had no remaining role to play on hearing of the constitutional challenge, no authority to raise Charter arguments not raised by counsel and no authority to make a motion for Charter relief not made by Mr. Edgar.
In fairness to amicus, the Board should have done a better job of defining her role in advance of the hearing. No doubt, the novelty of a s. 52 challenge before the Board led to this shortcoming.
For completeness, I will say a word about the argument raised by amicus that sections 672.51(3) and (6) of the Code do not conform with the principle of fundamental justice because they are arbitrary and because they have grossly disproportionate effects. I will begin with a brief description of her argument.
In her factum, amicus recognizes that, “The ORB can determine Charter motions pursuant to both s.52 (any law that violates the Constitution is invalid and of no force or effect) and s.24(1) (individualized remedies for infringements of a person’s Charter rights).” She also recognizes that in his motion, Mr. Edgar seeks an order that ss.672.51(3), (4), (6), (7), (8) and 672.5(10)(b)(ii) of the Criminal Code are inconsistent with s. 7 of the Charter and “are of no force and effect”, and as a result the withheld information should be disclosed to him. And finally, the following is found in her factum:
Amicus submits that the impugned provisions are not in accordance with three recognized and established principles of fundamental justice, specifically that (a) laws cannot be arbitrary (b) laws cannot have grossly disproportionate effects and (b) laws cannot undermine the requirements of procedural fairness.
With respect to arbitrariness, amicus says that an arbitrary law is one lacking a logical connection between its purpose and its effect on the individual, but her argument focused on the arbitrariness of the decision to withhold the disposition information on the facts of the case, not the arbitrariness of the provision that allows it to be withheld.
With respect to gross disproportionality, amicus says that a grossly disproportionate law is one that might be effective but disproportionately harmful. Again, the argument focuses on the decision to withhold the disposition information from Mr. Edgar being disproportionately harmful, rather than the provisions being disproportionately harmful.
In the result, even if amicus were entitled to broaden the constitutional challenge to the validity of the impugned sections, the challenge fails. In substance, the arguments raised are an attack on the decision of the Goldenberg panel – they ask us to find that the decision to withhold the disposition information from Mr. Edgar was arbitrary (because disclosure will not likely endanger the life or safety of another person or seriously impair the treatment or recovery of the accused) and disproportionately harmful (because withholding the information will do more harm than disclosure would). That is really another way of saying that the decision was wrong. If the decision is arbitrary or disproportionately harmful, it would not have satisfied the prerequisites of s. 672.51(3). In my view, if we were to embark on such an exercise, we would be sitting in review of that panel’s decision. But we are not an appellate panel. An appeal of a decision of the Board must be brought in the Court of Appeal.
Nothing in what I have said should be taken as suggesting that amicus does not have an important role to play at the merits stage of this review hearing.
5. [Section 1](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec1_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
- Having found that the impugned provisions conform to the principles of fundamental justice guaranteed under s. 7 of the Charter, we need not consider whether they are saved by s.1.
Conclusion
- For these reasons, we conclude that sections 672.51(3), (4), (6), (7), (8) and s.672.5(10)(b)(ii) of the Criminal Code of Canada do not violate s. 7 of the Charter. The motion is dismissed.
DATED this 4th day of November 2025, at the City of Toronto, in the Region of Toronto.
The Honourable Michael Dambrot, K.C.
Chairperson
__________________
Office of the Registrar
Ontario Review Board
Footnotes
- R. v. Conway, 2010 SCC 22 at para. 84.
- Although these provisions apply to both NCR and fitness hearings either in court or before the Board, in most cases, including this one, they will be invoked in NCR hearings before the Board. As a result, to simplify my analysis to the extent possible, in the remainder of these reasons I will refer only to the situation of an NCR accused before the Board.
- Counsel obviously meant s. 52(1) of the Constitution Act, 1982.
- I confess that I do not understand this position. The evidence heard by the Goldenberg panel about the excluded disposition information and about Mr. Edgar’s circumstances cannot affect the constitutional validity of a legislated enactment. I will have more to say about this later.
- As for the suggestion that the Goldenberg panel’s April 25, 2025, decision could have been appealed after it was made, I point out that appeals to the Court of Appeal are statutory, and s. 672.72(1) of the Code provides for appeals only from a Board disposition or placement decision. Of course, the issue could be raised in an appeal from the disposition of the Board at the end of Mr. Edgar’s annual review.