Re: Troy Warner, 2025 CanLII 15875

Re: Troy Warner

ORB File No: 6069 & 6349

Hearing held on: Wednesday, December 18, 2024

Place of hearing: Centre for Addiction and Mental Health

Pursuant to: Sections 672.81(1) and 672.81 (2.1) of the Criminal Code

Before:

Chairperson: The Honourable M.R. Dambrot, K.C.

Members: Ms. S. Kert Dr. G. Eayrs Dr. L. E. Cappe Mr. A. Mete

Parties Appearing:

Accused: Troy Warner Counsel: Mr. T. Willier

The person in charge of Hospital: Counsel: Ms. L. Senko

Attorney General of Ontario: Counsel: Mr. M. Feindel

REASONS FOR RULING

(Dated February 25, 2025)

Introduction

1The Ontario Review Board ("ORB") was established by Part XX.1 of the Criminal Code of Canada (the "Code") as a specialized statutory tribunal with ongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of those accused who have been found not criminally responsible by reason of mental disorder ("NCR").¹ Where necessary and appropriate, the Board may direct that an NCR accused be detained in custody in a forensic hospital. In carefully circumscribed circumstances, forensic hospitals have the authority to place an NCR accused in seclusion. Seclusion is a form of restraint. It involves the involuntary confinement of a patient alone in a room or area from which exit is denied.² Seclusion may be used either for therapeutic purposes or as a temporary containment measure of last resort when no other method of preventing an individual from seriously harming themself or others will succeed.

2The essential question to be determined in this ruling is whether the jurisdiction of the Board extends to reviewing a decision of a hospital to seclude an NCR accused for more than seven days.

The Statutory Scheme in Part XX.1 of the Criminal Code of Canada

3In 1991, in R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, the Supreme Court struck down the provision for automatic, indefinite detention of an NCR accused on the basis that it violated the accused's liberty rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms (the "Charter)". In response, Parliament enacted Part XX.1 of the Code in 1991, which reflected an entirely new approach to the problem of the mentally ill offender. The scheme has largely survived Charter scrutiny. I have described Part XX.1 briefly in paragraph 1 above, but I will proceed to do so in a little more detail here.

4When a court renders a verdict of NCR in respect of a person charged with a criminal offence, that person becomes subject to Part XX.1 of the Code. Although the court that rendered the verdict may then hold a hearing and make a disposition in respect of the accused, ordinarily, at least in Ontario, pursuant to s. s. 672.45(1.1), the court sends the verdict to the Board, and the Board holds a disposition hearing and makes a disposition pursuant to s. 642.47(1). For the sake of simplicity, in the remainder of these reasons, I will refer only to disposition hearings held by the Board and dispositions made by the Board.

5When the Board makes a disposition pursuant to s. 642.47(1) of the Code, s. 672.54 gives it three options. If the accused is not a significant threat to the safety of the public, the Board must direct that the accused be discharged absolutely. Otherwise, the Board must direct that the accused be discharged subject to such conditions as it considers appropriate, or direct that the accused be detained in a hospital subject to such conditions as the Board considers appropriate. The Board must make the disposition that is necessary and appropriate in the circumstances. To be necessary and appropriate in the circumstances, the disposition must be the least onerous and least restrictive of the accused's liberty interest consistent with the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.

6The disposition hearing has been characterized by the Supreme Court as an assessment-treatment system in which those NCR accused who pose a significant threat to public safety are identified and treated appropriately while impinging on their liberty rights as minimally as possible, having regard to the particular circumstances of each case (Winko v. British Columbia (Forensic Psychiatric Institute) (1999), 1999 CanLII 694 (SCC), 135 C.C.C. (3d) 129 (S.C.C.), at para. 16). The emphasis is on achieving the twin goals of protecting the public and treating the mentally ill offender fairly and appropriately (Winko, para. 21).

7Except in the case of an absolute discharge, the making of an initial disposition does not end the role of the Review Board with an accused. The Board assumes ongoing supervision of the NCR accused (Winko, para. 66). The Board must hold a further hearing within 12 months of making any disposition other than an absolute discharge and further reviews must be conducted at least every 12 months thereafter (s. 672.81(1)).

8In the periods between annual reviews, the forensic hospitals are responsible for making the day-to-day decisions concerning each accused. Like the Board, keeping in mind the paramount concern for public safety, the hospitals must make decisions that provide NCR accused with the utmost liberty compatible with their situation. The hospital must remain vigilant about interfering with liberty interests as little as possible, making decisions that are the least onerous and least restrictive to the NCR accused's liberty (Campbell (Re), 2018 ONCA 140, at para. 59).

9There are, in addition, several other liberty safeguards that may come into play between annual reviews, including provision for additional Board hearings. In particular, the Board may, at any time, review any of its dispositions of its own motion or on the request of the accused or any other party (s. 672.82(1)), and it must do so if the hospital requests it (s. 672.81(2)). In addition, by virtue of s. 672.81(2.1), the Board must hold a hearing to review a decision made by a hospital to significantly increase the restrictions on the liberty of an accused after receiving notice from the hospital of any such increase that remains in force for a period exceeding seven days pursuant to s. 672.56(2). Such a hearing is commonly referred to as an ROL hearing.

10The individualized scheme of Part XX.1, including in particular the provision for an annual review and the possibility of ROL hearings and other early reviews, is one of the considerations that insulate it from a claim that the scheme has the effect of demeaning the dignity of the NCR accused and therefore violates s. 15(1) of the Charter (Winko, para. 88-89).

The History of this Case

11Mr. Warner is detained in custody at the Forensic Service of the Centre for Addiction and Mental Health, Toronto ("CAMH" or "the Hospital"). On August 21, 2024, Mr. Warner was placed in locked emergency seclusion. As I have already noted, seclusion may be used either for therapeutic purposes or as a temporary containment measure of last resort when no other method of preventing an individual from seriously harming themself or others will succeed ("safety purposes"). In Mr. Warner's case, it was used for safety purposes because of an increase in Mr. Warner's uninvited touching of co-patients, his assault on a CAMH staff member, and his refusal to follow staff direction. He remained in seclusion for more than seven days.

12By letter dated August 28, 2024, CAMH notified the Board of this seclusion but left it to the Board to determine whether this amounted to a reportable restriction on liberty requiring an ROL hearing. Following an exchange of correspondence amongst the parties³, by letter dated September 18, 2024, the Board advised the Hospital, the Attorney General and Mr. Warner that it would treat the Hospital's correspondence as notice pursuant to s. 672.56(2) and would schedule an ROL hearing. The Board scheduled the ROL hearing and the accused's next annual review to be heard together on December 18, 2024.

13In the end, the Hospital took the position that seclusion is not a reportable issue, and that the Board did not have jurisdiction to conduct an ROL hearing. In order to deal with this issue efficiently, the Hospital, the Attorney General and Mr. Warner jointly proposed to the Board that the ROL be bifurcated. They proposed that the panel scheduled to conduct the ROL hearing and Mr. Warner's annual review instead determine whether the Board has jurisdiction to conduct an ROL hearing to review the placement of an NCR accused in locked seclusion based on the written submissions of the parties, and then adjourn the annual review and the ROL, if there is to be one, to be heard by another panel after the first panel determines the preliminary issue. We are the panel initially scheduled to conduct the ROL hearing and Mr. Warner's annual review, and we agreed to this procedure. The jurisdictional issue raised by the Hospital has been raised in several cases, and I, as Chair of the Board, was of the view that it would be useful to take the time to write a fully reasoned decision. The other panel members supported my view.

14The Hospital takes the position that the seclusion of Mr. Warner was not undertaken pursuant to authority delegated to the person in charge by the Board, but rather pursuant to authority it possesses under the common law or pursuant to s. 25 of the Mental Health Act, R.S.O. 1990, c. M.7, and accordingly the Board has no jurisdiction to review the placement of the accused in locked seclusion. More generally, the Hospital takes the position that seclusions, whether characterized as a response to immediate safety concerns or as part of psychiatric treatment, are not subject to review by the Board.

15Neither the accused nor the Attorney General support the position of the Hospital. They both take the position that the Board's jurisdiction extends to the reviewing of all seclusion episodes that increase the restrictions on liberty of an NCR accused significantly and remain in force for longer than seven days, including those characterized as a response to immediate safety concerns or as part of psychiatric treatment.

16After receiving and reviewing the written submissions of the parties, the panel reached the conclusion that the Board does have jurisdiction to review the placement of an NCR accused in locked seclusion. In order to permit the expeditious hearing of Mr. Warner's annual review and the ROL, we provided the parties with our "bottom-line" decision, with reasons to follow in due course. These are our reasons.

Analysis

17As I have explained, the Board has responsibility for the ongoing supervision of NCR accused persons. It has the statutory obligation to implement the twin goals of public protection and fair treatment of the NCR accused in accordance with the "assessment-treatment" model created by Part XX.1 of the Code. Yet, in the face of this responsibility, the Hospital would have it that when it places an NCR accused in seclusion for more than seven days, perhaps the most severe restriction of the liberty of the accused imposed by a forensic hospital, whether for safety or treatment reasons, the Board has no authority to hold an ROL hearing and review the Hospital's decision.

18At the least, this position is counterintuitive. How does the Hospital justify this position?

19The Hospital correctly says that the Board must find its authority to conduct an ROL hearing in Part XX.1 of the Code. The Board only has jurisdiction under s. 672.81(2.1) to conduct an ROL hearing if it has received notice of a restriction on liberty from the person who increased the restriction on liberty pursuant to s. 672.56(2). A person who increases a restriction on liberty is only obliged by s. 672.56(2) to give notice to the Board if the restriction on liberty is imposed pursuant to authority delegated by a Review Board. The delegation, in turn, pursuant to s. 672.56(1), must be found in a disposition of the Board pursuant to s. 672.54(b) or (c) that delegates to the person in charge of a hospital the authority to direct that the restrictions on liberty of an accused be increased within any limits and subject to any conditions set out in the disposition.

20However, the Hospital then makes an argument that is in dispute. It says that the authority to place an NCR accused in seclusion does not flow from Part XX.1 of the Code. Instead, it argues that the authority flows exclusively from s. 25 of the Mental Health Act and the common law in cases of clinical emergency, and from the Health Care Consent Act for treatment purposes. The Hospital then says that since the authority to place an NCR accused in seclusion does not flow from Part XX.1, the Board has no jurisdiction to delegate that authority to a hospital, and as a result no jurisdiction to review decisions of hospitals to place NCR accused in seclusion.

21The following five propositions are implicit in this argument, namely:

1. ROL notice and hearings are only triggered by restrictions on liberty of NCR accused flowing from authority delegated to the person in charge by the Board in a disposition.

2. Authority to seclude an NCR accused can be found in the Mental Health Act, the Health Care Consent Act and the common law.

3. Where a restriction on liberty such as seclusion is lawfully authorized by a provincial statute or the common law, that authority is exclusive, and accordingly it is not authorized by Part XX.1 and cannot be delegated to the person in charge by the Board in a disposition.

4. As a result, Mr. Warner's disposition does not delegate the authority to seclude to the person in charge.

5. Accordingly, the seclusion of Mr. Warner for more than seven days, even if it is a significant increase in the restrictions on his liberty and therefore outside his liberty norm, does not trigger ROL notice or an ROL hearing.

22I agree with the first two propositions, but I disagree with the remaining three, which are interrelated. I am firmly of the view that: (1) the authority to place an NCR accused in seclusion does flow from Part XX.1 of the Code, which operates in harmony with the Mental Health Act, the common law and the Health Care Consent Act; (2) the authority to seclude in narrow circumstances can be delegated to the person in charge in a disposition; and (3) in this case the authority to seclude was delegated.

23At bottom, the Hospital's argument is grounded on a question of statutory construction. The Board's obligation to conduct an ROL hearing is triggered by a hospital's ROL notice, and a hospital's obligation to provide notice of an ROL is triggered by a restriction of an accused's liberty "pursuant to authority delegated to the person [who restricts liberty] by a Review Board" pursuant to s. 672.56(2). As a result, in large measure, the Hospital's argument turns on the narrow construction it would place on the words "pursuant to authority delegated to the person by a Review Board" – a construction that would oust seclusion because authority for it can be found in other statutes and in the common law.

24To justify this narrow construction, the Hospital looks exclusively at the text of s. 672.56(2). However, that approach is not in accord with the modern approach to statutory construction. In Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, Iacobucci J. articulated the definitive formulation of the modern approach to statutory interpretation as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

25Iacobucci J. went on to say that this approach has been repeatedly cited by the Supreme Court as the preferred approach to statutory interpretation across a wide range of interpretive settings. It recognizes the important role that context must inevitably play when a court construes the written words of a statute.

26In this case, where the Hospital argues that the words of the statute under consideration should be interpretated narrowly in the manner I have described, it is important to examine how that interpretation sits with their entire context, the scheme of the Act, the object of the Act, and the intention of Parliament.

27To begin, I consider the purpose of the provisions for notice and review of restrictions of liberty found in Part XX.1 of the Code. As I have explained, Parliament has placed exclusively on the Board responsibility for the ongoing supervision of NCR accused persons. The objectives of Part XX.1 were explained in Winko, at para. 71. The Court stated that the dual objectives of Part XX.1 are to protect the public from the NCR accused who poses a significant threat to public safety while safeguarding the NCR accused's liberty to the maximum extent possible. The Court then proceeded to discuss the safeguards of the accused's liberty found in Part XX.1, beginning with the requirement that the Board give, at minimum, annual consideration of the accused's case (para. 72).

28Similarly, in Pinet v. St Thomas Psychiatric Hospital, 2004 SCC 21, at para. 19, the Court stated:

The principles of fundamental justice require that the liberty interest of individuals, like the appellant, who have been found not criminally responsible ("NCR") for a criminal offence on account of mental disorder be taken into account at all stages of a Review Board's consideration. The objective is to reconcile the twin goals of public safety and treatment. In this process of reconciliation, public safety is paramount. However, within the outer boundaries defined by public safety, the liberty interest of an NCR accused should be a major preoccupation of the Review Board when, taking into consideration public safety, the mental condition and other needs of the individual concerned, and his or her potential reintegration into society, it makes its disposition order [emphasis added].

29Again in R. v. Conway, 2010 SCC 22, at para. 88, the court said:

The Ontario Board manages and supervises the assessment and treatment of each NCR patient in Ontario by holding annual hearings and making dispositions for each patient ... It is well established that the review board regime is intended to reconcile the "twin goals" of protecting the public from dangerous offenders, and treating NCR patients fairly and appropriately ... While public safety is the paramount concern, an NCR patient's liberty interest has been held to be the Board's "major preoccupation" within the fence posts staked by public safety ... The Board fulfills its "primary purpose" therefore by protecting the public while minimizing incursions on patients' liberty and treating patients fairly … [emphasis added].

30Finally, in Campbell (Re), 2018 ONCA 140, at para. 52, Fairburn J.A., as she then was, noted that the Board's oversight of an NCR accused is governed by its overriding need to safeguard liberty as much as possible, while having regard to its paramount focus, the safety of the community. She further noted that an NCR accused's liberty interest has been held to be the Board's major preoccupation within the fence posts staked by public safety. Having said this, she noted that Part XX.1 includes several legislated liberty safeguards. It goes without saying that s. 672.81(2.1), which provides for hearings to review decisions to significantly increase the restrictions on the liberty of accused persons, is one of those liberty safeguards.

31Interpreting the jurisdiction of the Board to review restrictions of liberty to exclude seclusion, which I have described as perhaps the most severe restriction of the liberty of the accused imposed by a forensic hospital, is decidedly at odds with the Board's duty to have the NCR patient's liberty interest as its "major preoccupation within the fence posts staked by public safety". Indeed, if the Hospital is correct, the exclusion of seclusion from the notice and review provisions of Part XX.1 would be a significant impediment to the Board fulfilling its mandate.

32Next, I return to the text itself, and the Hospital's narrow interpretation of the words "pursuant to authority delegated to the person by a Review Board". In response, I observe that the Supreme Court did not read these words narrowly in Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20. To understand the application of that decision to this case, a bit of background is needed.

33As I have explained, when the Board makes a disposition directing that an accused be detained in custody in a hospital subject to conditions pursuant to s. 672.54, s. 672.56(1) permits the Board to delegate to the person in charge of the hospital authority to direct that the restrictions on the liberty of the accused be increased or decreased within any limits and subject to any conditions set out in the disposition. That same provision deems any direction so made to be a disposition made by the Board.

34The practice in Ontario when the Board orders detention in custody in a hospital is to delegate the authority to increase the restrictions on the accused's liberty by general language, ordering the person in charge to "create a program for the detention in custody and rehabilitation of the accused" in the Forensic Service of the particular hospital, in some cases naming the level of security, and then specifying the limits of the discretion to decrease the restrictions of liberty. It appears to me that this was precisely how Binnie J. viewed the virtually identical language in the disposition under consideration in Penetanguishene, at para. 68-69: as a delegation of the authority to increase the restrictions on the accused's liberty by general language.

35In Penetanguishene, the disposition ordered that "the person in charge of the Whitby Mental Health Centre create a program for the detention in custody and rehabilitation of the accused within the medium secure unit of the Whitby Mental Health Centre", followed by the specification of the limits of the discretion to decrease the restrictions of liberty.

36Binnie J. stated, at para. 68, in reference to this disposition:

Thus, within the outer envelope established by the Review Board order, a hospital administrator may move to restrict the detainee's liberty if circumstances warrant, although if the restriction is significant and lasts longer than seven days, the Review Board must be notified, and a hearing held.

37Using the general language I have underlined, language invariably found in Ontario detention dispositions, gives flexibility to the person in charge, without which it would be impossible to accommodate the unique and complex needs of each NCR accused in a complex hospital setting. It is precisely the language that Binnie J. had in mind when he concluded that the outer envelope of the delegated authority in a disposition permits a hospital administrator to move to restrict the detainee's liberty if circumstances warrant, but if a significant restriction continues for more than seven days, ROL notice must be given, and an ROL hearing must be held.

38Binnie J. went on to say, at para. 69:

The delegated authority, of course, must be exercised having due regard to the detainee's liberty interest in light of the twin goals of public safety and treatment, but it permits a degree of day-to-day fine tuning that, if properly exercised, will prevent the "least onerous and least restrictive" requirement from compromising achievement of treatment objectives.

39As Fairburn J.A. (as she then was) stated in Campbell (Re), 2018 ONCA 140, at para. 42, "The number of permutations and combinations of possibilities impacting liberty are impossible to calculate." Examples include moving an accused from a somewhat less secure unit to a somewhat more secure unit (for example, a unit with more stringent exit requirements (swipe cards, buzzers, etc.) or with a smaller staff to accused ratio), moving an accused from a unit with a greater number of programs to one with fewer programs, briefly confining an accused to their room in a general unit of a hospital or eliminating or reducing decreases in the restrictions of liberty previously granted by the person in charge.

40Of course, most of these increases in restriction on liberty do not meet the "significant" threshold. As noted in Campbell, at para. 63, "Section 672.56(2) is not intended to transform the Board into a body that second-guesses all or even most hospital decisions that adversely impact liberty." But when a person in charge increases the restrictions on liberty of an accused significantly pursuant to the authority delegated to it by the Board, they must make a record of it and, if the restriction remains in force for longer than seven days, give notice of it as soon as practicable to the Board (s. 672.56 (2)).

41The Board must then, as soon as practicable after receiving notice, hold an ROL hearing to review the decision to significantly increase the restrictions on the liberty of the accused (s. 672.81 (2.1)).

42I see no reason why seclusion would not fit within the outer envelope of the delegated authority in a disposition such as the one here that, as described by Binnie J., permits a hospital administrator to move to restrict the detainee's liberty if circumstances warrant.

43However, as I said, the Hospital takes a different view. It says that seclusion falls outside of the Board's delegation mandate. As I have noted, the Hospital relies on the Mental Health Act, the Health Care Consent Act and the common law as the sole authorities for hospitals to place NCR accused into seclusion. I will discuss this body of law briefly.

44I begin with s. 25 of the Mental Health Act. It provides:

Any person who is detained in a psychiatric facility under Part XX.1 of the Criminal Code (Canada) may be restrained, observed and examined under this Act and provided with treatment under the Health Care Consent Act, 1996.

45Section 1 of the Mental Health Act provides the following definition of restrain:

"restrain" means place under control when necessary to prevent serious bodily harm to the patient or to another person by the minimal use of such force, mechanical means or chemicals as is reasonable having regard to the physical and mental condition of the patient.

46Given the definition of restrain, it seems clear that its use in s. 25 includes seclusion.

47In addition, as the Hospital notes, s. 7 of the Health Care Consent Act recognizes that there exists a common law duty on caregivers to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. Indeed, provisions similar to s. 7 of the Health Care Consent Act that recognize the common law duty to restrain are also found in the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, the Fixing Long-Term Care Act, 2021, S.O. 2021, c. 39, Sched. 1, the Patient Restraints Minimization Act, 2001, S.O. 2001, c. 16, and the Retirement Homes Act, 2010, S.O. 2010, c. 11.

48I do not doubt that the Hospital is correct that both s. 25 of the Mental Health Act and the common-law contemplate that an NCR accused can be placed in seclusion in appropriate circumstances. But I do not agree that the corollary is that seclusion and other forms of restraint are therefore somehow removed from the authority delegated in a disposition to the person in charge that gives rise to the possibility of an ROL.

49I begin with s. 25 of the Mental Health Act. It seems apparent that the Ontario legislature did not intend s. 25 to exist as an independent source of authority for restraint, but rather one that operate in harmony with the authority to detain an NCR accused in custody granted to a person in charge by a Board disposition. I say this first of all because the words of s. 25 permit the authority it recognizes to be exercised only in relation to persons detained in a psychiatric facility under Part XX.1. By virtue of the words of s. 25 themselves, the authority to restrain that s. 25 references is intended to work in harmony with a disposition made under Part XX.1. It is only available in circumstances where a disposition has been made by a court or the Board directing that an accused be detained in custody in a hospital subject to such conditions as the Court or Board consider appropriate. The detention order is the overall restriction on liberty. Section 25 is not meant to somehow carve seclusion and other forms of restraint out from the Board's supervision and create an independent restriction on liberty within the overall bubble of the Board's restriction on liberty.

50As counsel for the Attorney General aptly put it in his written argument:

The authority of the Person In Charge over the liberty of a detained forensic patient is entirely contingent on the warrant of committal or Form 49 issued by the Review Board and the terms of the disposition in the exercise of its criminal law power. The hospital has no independent jurisdiction over the liberty of an accused detained in their facility under Part XX.1.

51The operation of s. 25 in harmony with the authority to detain in custody granted by a Board disposition is an example of what Bastarache J. described in Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7 at para. 29. He said that the legislative scheme in Part XX.1 of the Code involves "the participation of provincial health authorities and facilities in delivering appropriate medical services where appropriate and necessary in order to facilitate the assessment and management of the threat posed by NCR accused persons to public safety, and to improve their prospects for rehabilitation and community reintegration." Section 25 of the Mental Health Act augments the legislative scheme; it doesn't operate independent of the scheme.

52In addition, interpreting s. 25 of the Mental Health Act to operate as a source of authority for restraint that operates independently from the delegated authority of a disposition would lead to absurdities that the legislature could not have intended. It is important to note that while the Hospital focusses on seclusion as being authorized by s. 25 of the Mental Health Act, and not Part XX.1, the scope of s. 25 is far broader. It authorizes the restraint, observation, and examination of NCR accused who are detained in psychiatric facilities under Part XX.1. If seclusion is excluded from the ROL notice and review provision, then so are other forms of restraint as well as observation and examination of NCR accused. If restraint, observation, and examination fall outside the scope of an ROL notice and an ROL hearing, it is hard to imagine what remains as the possible subject of such notice and such a hearing. I reach the opposite conclusion: the scope of an ROL notice and an ROL hearing include other forms of restraint as well as observation and examination of NCR accused if they significantly restrict the liberty of an accused and continue for more than seven days.

53There is still another unfortunate consequence that would flow from the Hospital's position if it were adopted, and a distasteful one at that. What would happen if frustrated Hospital staff used seclusion as a means of punishing a very difficult NCR accused? Hopefully this would never happen in an Ontario forensic hospital, but, true or not, exactly that scenario was alleged to have occurred in Stolove (see paras. 51-52).

54In Stolove, the plaintiffs in a proposed class action brought against a forensic hospital alleged that the hospital used restraint and seclusion as punishment. I emphasize that this was simply an allegation. The Court in Stolove was hearing a procedural motion in which it was asked to certify a class action. It could not, and did not consider the merits of the claim, and the decision in no way lends credence to it. In fact, certification of the class action was refused for reasons unrelated to this allegation. I only mention the case because, if the Hospital's argument is correct, then a hospital could avoid scrutiny of such misbehaviour if it ever actually occurred by the simple expedient of labelling it as seclusion for safety reasons, and thereby avoid Board scrutiny. On the other hand, if seclusion for more than seven days regardless of the basis for it ordinarily triggers ROL notice and an ROL hearing, allegations of misuse of seclusion will see the light of day and will be subject to Board review.

55As for the Hospital's reliance on the common law, I content myself by saying that there is nothing in Conway v. Fleming, [1996] O.J. No. 1242 (Gen. Div.), aff'd (1999) 1999 CanLII 19907 (ON CTGD), 43 O.R. (3d) 92 (Div. Ct.), leave to appeal refused [1999] S.C.C.A. No. 473, the leading Ontario case on the common law duty to restrain, to suggest that it ousts the authority of Parliament under the criminal law power to authorize review by the Board of exercises of that common law power when used in relation to an NCR accused detained in a hospital under a Board disposition. Nor was there any argument made to us that it even could do so. I note, coincidently, that Conway arose in the context of restraint of an involuntary forensic patient, albeit under the authority of a Lieutenant-Governor's Warrant, the predecessor of the current warrant of committal and disposition order.

56In reaching the conclusion that the Board has jurisdiction to review decisions of hospitals to place NCR accused in seclusion for more than seven days, I take comfort from the fact that the Board has repeatedly reached the same conclusion when this issue has been raised in the past. In this regard, I refer to Ince (Re), [2012] ORBD No. 2558, Jardine (Re), [2015] O.R.B.D. No. 857, Hazzard (Re), [2015] O.R.B.D. No. 2435, Huang (Re), [2016] ORBD No. 1768, Ducharme (Re), [2021] ORBD No 2363, and McFarlane (Re), [2022] ORBD No 1715. Huang, Ducharme and McFarlane are particularly notable for their careful analysis of the issue.

57The Supreme Court tells us in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 129, that while administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis, nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker -- expectations that do not evaporate simply because the parties are not before a judge.

58Any hospital considering in the future whether to raise the objection raised here should bear the Supreme Court's admonition in mind.

59I also take comfort from the fact that the Court of Appeal has expressed the view that seclusion is the proper subject matter of an ROL notice and an ROL hearing. In Campbell, the Court stated, at para. 68,

Certain circumstances will emerge which, by their very nature, will suggest a significant enough increase in restrictions on liberty that they will point toward the probable need for notice. For instance, if an NCR accused has been living in the community or afforded significant community access for long enough that it has become the individual's liberty norm, then removal of these privileges for more than seven days will almost invariably result in the need for notice. Equally, where an NCR accused residing in a general unit and accessing multiple privileges is placed in a secure unit or in isolation for more than seven days, this will almost always trigger the need for notice. These are only examples. While Board decisions and appeals can drive the application of the test, an individualized assessment is still required in each case [emphasis added].

60While it may well be that the Court of Appeal did not hear the detailed argument presented by CAMH to this panel in making the above comment about seclusion, it is clear that the Court was aware of it. At para. 40, the Court noted that the Forensic Directors Group of Ontario had developed a document entitled: "Restriction of Liberty Notification Guidelines" to identify categories where notice under s. 672.56(2) should be given. The Court observed that the categorical approach set out in the Guidelines conflicted with the Board's jurisprudence, and in particular, observed that the suggestion that there is no restriction on liberty where an NCR accused is secluded for more than seven days conflicted with "Ince, Jardine, Hazzard, and Huang". The Court stated at para. 41 that "this type of categorical approach risks both undershooting and overshooting the statutory mark."

61In light of the Court of Appeal's reference to Huang in discussing the categorical approach to ROL notice, and since an argument similar to the one here was made in Huang, the Court could not have been unaware of that argument when it later said that "where an NCR accused residing in a general unit and accessing multiple privileges is placed in a secure unit or in isolation for more than seven days, this will almost always trigger the need for notice."

62The Hospital attempts to avoid the comments in Campbell by labelling them obiter and relying instead on the earlier decision in Centre for Addiction and Mental Health v. Young, 2011 ONCA 432. Leaving aside any debate about the extent to which obiter of the Court of Appeal is binding, I content myself in saying that Young is distinguishable, and when properly understood does not support the Hospital's position.

63In 2001, Mr. Young was found NCR. He was initially held in hospital under a detention order made by the Board pursuant to s. 672.54. By late 2006, he was living in the community under the terms of a condition discharge disposition made by the Board. His mental condition deteriorated significantly in late 2009, and in October 2009 he was involuntarily committed to hospital under the terms of the Mental Health Act. He remained in hospital under that order until December 2009. By the time of his next annual review under Part XX.1, he was back living in the community.

64At his annual review, the Board was asked to consider the effect of Mr. Young's confinement in October 2009. The Board determined that his confinement under the Mental Health Act constituted a restriction on his liberty that necessitated notification to the Board and a hearing under s. 672.81 (2.1). The panel went on to conduct the annual review and ordered his discharge on conditions.

65On appeal, CAMH argued that confinement pursuant to the Mental Health Act does not trigger the requirement that the Review Board conduct a restriction on liberty hearing pursuant to s. 672.81(2.1). The Court of Appeal agreed. The Court held that the language of the Criminal Code clearly indicates that confinement under the Mental Health Act does not trigger the hearing requirement under s. 672.81(2.1). The Court stated, at para. 19, that an involuntary committal under the Mental Health Act has nothing to do with the Review Board or the terms of any disposition made by the Review Board. Committal under the Mental Health Act depends on the criteria set out in that Act and is determined using the procedures set down in the Mental Health Act. The Board's focus is on restrictions of liberty pursuant to authority delegated to hospital personnel with respect to persons confined under the Criminal Code.

66There is a fundamental distinction between the circumstances of Mr. Young and the circumstances of Mr. Warner. Mr. Young's confinement had nothing to do with the Review Board. Mr. Warner's confinement had everything to do with the Review Board. Mr. Young was detained pursuant to the Mental Health Act, not under a Board disposition. An appeal was available to Mr. Young from his involuntary committal to the Consent and Capacity Board. Mr. Warner's seclusion took place while he was detained under a Board disposition, not under the Mental Health Act. No appeal to the Consent and Capacity Board is available to him from either his detention or his seclusion. His only recourse is a review by the ORB. These distinctions rise to the level of principle.

67The position of the Hospital that no statutory review is available when an NCR accused is placed in locked seclusion in a hospital, even where it deviates significantly from the accused's liberty norm (as that concept was explained in Campbell) and continues for more than seven days, if correct, would remove one of the liberty safeguards afforded to an accused in a situation where their liberty is most restricted, and would be inconsistent with the important values of openness, transparency, and accountability in such circumstances. To borrow the words of Louis Brandeis written before his appointment to the United States Supreme Court, "Sunlight is said to be the best of disinfectants". Of course, if the hospital complies with the guidance in Campbell and informs the Board of seclusions for more than seven days (a so-called Campbell letter), then the Board would be free to hold a discretionary review pursuant to s. 672.82.⁴ But a voluntary Campbell notice and a discretionary hearing fall well short of statutory obligations.

68The Hospital advances an additional argument in support of its position that seclusion is not subject to review by the Board in circumstances where it is part of a treatment plan. The Hospital notes that at times during their clinical care, a patient may be placed in locked seclusion as part of a treatment plan for which consent has been obtained, typically by the patient's Substitute Decision Maker ("SDM") on behalf of an incapable patient. When used in this way, locked seclusion is a form of treatment, and its use is authorized by the provisions of the Health Care Consent Act. The Hospital then says:

It is well established law that the ORB does not have jurisdiction to order treatment (see section 672.55(1) of the Criminal Code; Mazzei v British Columbia). Although, the ORB has supervisory oversight over treatment and other aspects of an accused's detention, it must leave decisions about which treatment to propose (and which treatments to stop or change), as well as other aspects of day-to-day management of the patient, to the hospital and the clinical team. This separation between supervisory and treatment roles is demonstrated in the following example: it would be plainly inappropriate for the ORB to order that a patient not be treated with clozapine, injectable medications, or mood stabilizers.

69CAMH extrapolates from this assertion that it would also be inappropriate for the Board to have the jurisdiction to review a patient's placement in locked seclusion and make a determination as to whether or not it was warranted or inappropriate. In its submission, this would usurp the legislated right of the patient or their SDM to make decisions about treatment and would be "troubling".

70With respect to CAMH's position, the Hospital's characterization of the Board having jurisdiction to review seclusion for treatment purposes as "troubling" is itself troubling. The Hospital's position is based on a fundamental misunderstanding of the purpose of an ROL hearing. There is no question, as CAMH says, drawing from the decision in Mazzei, that the Board does not have jurisdiction to order the medical treatment of an NCR accused. But it is apparent from the remainder of what is said in Mazzei that this in no way precludes the Board from reviewing and supervising the medical treatment of an NCR accused.

71In the context of an NCR accused detained in a hospital pursuant to a detention order, Bastarache J. stated, at para. 32 of Mazzei:

The provision of medical services in this context is merely a logical and inevitable (but ancillary and incidental) effect of Part XX.1's focus on public safety and community reintegration. The provision of medical services under Part XX.1 is therefore to be engaged only in order to help achieve the goals of public safety and maximization of liberty interests (except, of course, for other medical services performed by hospital staff pursuant to the hospital's responsibilities for the health of its patients, with respect to other illnesses or conditions not directly related to or part of the mental illness or condition of the NCR accused which has led to his or her "NCR" designation). The medical treatment of the NCR accused can only occur with a view to reducing the accused's level of threat to public safety and creating a situation where it is no longer significant, thereby permitting reintegration into society. According to McLachlin J. in Winko (at paras. 39-40), medical treatment "is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition.... Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused."

72Given this interplay between the Board's mandate and the hospital's role in providing treatment, it is not surprising that the Court did not at all suggest, contrary to the position of CAMH, that the fact that the Board cannot order treatment makes it inappropriate for the Board to have the jurisdiction to review a patient's treatment, including seclusion. On the contrary, at para. 39, Bastarache J. stated:

Although Review Boards may not actually prescribe or impose a particular course of medical treatment for an NCR accused, they still possess the authority to make orders and conditions in a "supervisory" role or capacity with respect to the NCR accused's medical treatment and clinical progress. Review Boards are in effect empowered to make orders and conditions "related to" or "regarding" an NCR accused's medical treatment (or the supervision of such treatment) while in the custody of a provincial hospital … It would therefore include the power to require hospital authorities and staff to question and reconsider past or current treatment plans or diagnoses and explore alternatives which might be more effective and appropriate. The authority for this power is derived from the purpose of the legislative scheme, the mandate and expertise of Review Boards, and the wording of various sections of Part XX.1; it is also echoed in the jurisprudence.

73At para. 41, Bastarache J. said:

… [I]f Review Boards are to fulfill their statutory role and mandate in terms of making appropriate disposition orders aimed at protecting the public while safeguarding the liberty interests of the accused, they must have some supervisory power over the medical treatment of NCR accused persons who are detained in hospitals. By the very definition of a verdict of "not criminally responsible on account of mental disorder", the accused's mental condition is effectively the reason why the accused is now subject to Part XX.1, and in most cases it is the very reason why the accused represents a threat to public safety and why the accused's liberty interests have been curtailed in accordance with that risk. It is therefore logical that a Board, in achieving the goals of public protection and fairness to the NCR accused, should have the power to supervise the medical treatment provided to the accused, since a major aim of that treatment is to reduce the accused's safety risk and to provide the NCR with the maximum liberty possible.

74And again, at para. 42:

In fulfilling its statutory mandate and role under Part XX.1, it is necessary and essential for a Review Board to form its own independent opinion of an accused's treatment plan and clinical progress, and ultimately of the accused's risk to public safety and prospects for rehabilitation and reintegration [emphasis added].

75All of this is a far cry from the Hospital's position that when it comes to treatment, the Board should mind its own business. On the contrary, while the Board cannot order treatment, it can "order a re-evaluation of current or past treatment approaches, and an exploration of alternatives where necessary … Such supervisory powers are an inherent part of a Board's mandate" (Mazzei, para. 42.) As noted by the Board in Huang, at para. 32, "restrictions of liberty are frequently related to treatment issues (whether someone is moved from a general unit to a secure unit or back from community living to the hospital). This does not preclude the Board from reviewing them." The Board can also require hospital staff to re-examine a diagnosis or a treatment plan, and to consider alternatives which might be more effective or appropriate, -- thus requiring hospital authorities to justify their position regarding any treatment impasse (Mazzei, para. 42).

76Finally, in my view the decision of the Court of Appeal in Campbell is fatal to the Hospital's position concerning treatment. In Campbell, unlike in Mazzei, the Court spoke directly about the requirement of ROL notice, and its decision is dispositive. Fairburn J.A. stated, at para. 81:

While I accept the fact that the hospital's decisions were made in an effort to protect the appellant's well-being, I reject the majority view that the fact that these decisions could be described as treatment justified a lack of notice. I agree with the minority's position that "treatment" can result in a significant increase in restrictions on liberty. Like the minority, I agree that whether a change to an NCR accused's liberty norm is for treatment or not does not answer whether it constitutes a significant increase in restrictions on liberty.

Conclusion

77For these reasons, I am of the view that when a forensic hospital places an NCR accused detained in its custody into locked seclusion, it does so pursuant to authority delegated to the person in charge by the Board, and the jurisdiction of the Board extends to reviewing such a decision at an ROL hearing if it continues for more than seven days. I am further of the view that when a hospital places an NCR accused in seclusion, whether for safety or treatment reasons or for any other reason for more than seven days, the hospital is obliged, except in very rare circumstances, to give notice of the restriction on liberty to the Board. The Board is then obliged to hold an ROL hearing and review the Hospital's decision. The only exception is the rare and circumstance where seclusion does not deviate significantly from the accused's liberty norm.

78In accordance with these reasons, an ROL hearing has been scheduled for Mr. Warner along with his annual review.

DATED this 25th day of February, 2025, at the City of Toronto, in the Region of Toronto.

The Honourable M. Dambrot, K.C. Chairperson

__________________ Office of the Registrar Ontario Review Board

Footnotes

1. 1R. v. Conway, 2010 SCC 22 at para. 84.
2. 2Stolove (Litigation guardian of) v Waypoint Centre for Mental Health Care, 2024 ONSC 3639 at para. 123.
3. 3Including a September 17, 2024, letter to the Board in which the Hospital stated that it "concedes that a significant restriction of liberty occurred in this particular case."
4. 4Section 672.82 authorizes a Review Board to hold a hearing to review any of its dispositions at any time, and any direction to increase the restrictions on the liberty of an NCR accused by the person in charge under Board delegated authority is itself deemed to be a disposition made by the Board pursuant to s. 672.56 (1). The Code is silent as to who makes a decision to hold such a hearing on behalf of the Board, but the practice in Ontario is to assume that the Chair has the authority to make all decisions on behalf of the Board other than those that must be made after a hearing. Upon receipt and review of a Campbell letter, the Board may conclude that it is appropriate to hold a hearing pursuant to s. 672.82 to consider whether a significant increase in the accused's liberty occurred. In R. v. Petroniuk, 2014 ONSC 695, aff'd 2018 ONCA 1083, Trotter J. as he then was, at para. 25, recognized the Board's jurisdiction to hold such a hearing, and referred to it as a "restrictions hearing". This procedure was endorsed in Campbell, at para. 69, and is set out in the Board's November 19, 2020, Practice Direction Concerning Restrictions on the Liberty of an Accused.