|
Criminal - NCR - Conditional Discharge. Singh (Re)
In Singh (Re) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal from an ORB ruling, here where the "Board continued the detention order on the basis that it was the least restrictive order needed to protect the public":[5] At her most recent annual review, Ms. Singh sought a conditional discharge. She proposed several terms including attendance at the hospital for assessment and readmission on request (a “Young” clause, so-named after Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512), and a treatment compliance clause, which would require her to take medication as prescribed. She also agreed to maintain the abstinence, substance testing, and weapons prohibitions clauses as in the current disposition. The Young clause would require that she attend at the hospital for assessment when requested by the hospital and admit herself to the hospital on request. If she refused either direction, she would be in breach of the disposition, and the enforcement provisions in s. 672.93 of the Criminal Code, R.S.C., 1985, c. C-46 could be used to obtain a judicial order for her readmission.
[6] It was not disputed that the appellant continued to pose a risk to public safety. The Board continued the detention order on the basis that it was the least restrictive order needed to protect the public:The panel unanimously finds that, absent a Detention Order and the strict oversight of the Hospital, it is likely that Ms. Singh would disengage from treatment, become medication non-adherent and continue or even increase her substance use. This would lead to an exacerbation of her psychotic and mood symptoms, which in the context of the index offences, led to violent consequences.
The panel further finds that the provisions of the Mental Health Act would be insufficient to return Ms. Singh to the Hospital quickly in the event of a deterioration in her mental status, nor does the panel believe she would readmit herself voluntarily if she became psychotic. [7] Ms. Singh appeals on the basis that the Board did not explain why a conditional discharge on the conditions she proposed would not constitute the least onerous, least restrictive disposition needed to protect the safety of the public. She asks this court to set aside the board’s disposition and order a new hearing. Her position is supported by the hospital.
[8] This court has held that, where a conditional discharge has an air of reality, it must be considered: Collins (Re), 2018 ONCA 563, at para. 43. In Ahmadzai (Re), 2020 ONCA 169, this court set aside a detention order on the basis that the Board “gave no meaningful consideration to whether [the appellant’s] risk to the public could be managed under a conditional discharge”: at para. 24. In Ramos (Re), 2025 ONCA 820, 179 O.R. (3d) 126, this court held that where an appellant seeking a conditional discharge proposes safeguards such as a Young clause (by which the accused agrees to attend hospital and submit to assessment or readmission where required) and a treatment compliance obligation, the Board has to consider the proposal carefully. This means considering: (1) whether the evidence and treatment history supported the conclusion that the appellant would not voluntarily attend for treatment; and (2) whether the compulsory mechanisms proposed would not adequately ensure compliance. In that case, the Court held that Mr. Ramos’s history of compliance and voluntary readmission supported a conditional discharge. As to the mechanisms available to ensure compliance, the Court held that the Board erred by not considering the viability of the proposed conditions to address potential treatment refusal. The matter was remitted back to the Board for a new hearing. The Board was specifically directed to consider the effectiveness of a Young clause and treatment compliance condition, considering timelines, enforcement mechanisms, and the appellant’s treatment history.
[9] As this Court explained in Ramos, s. 672.93(2) of the Criminal Code “empowers courts to order re-confinement in hospital following a breach of conditional discharge … [this] ensures that compulsory readmission is available but subject to judicial authorization, thereby safeguarding liberty while maintaining accountability”: at para. 37. Whether such an order would be appropriate in the case of any particular NCR accused must be decided on the evidence. The Court in the case of Mr. Ramos was not in a position, on the record before it, to assess the nature of the NCR accused’s potential for decompensation – likely, unlikely, slowly, rapidly – and determine whether a Young clause could be judicially enforced on a timeline that would adequately safeguard the public interest. Accordingly, the matter was remitted for a new hearing to consider the question.
[10] The same result should obtain here. What was needed is a determination of whether a Young clause – together with the other proposed conditions – could practically and effectively address the risk to the public posed by a comparatively stable NCR accused who meets regularly with the treatment team, is compliant with anti-psychotic medication, whose symptoms are managed well with the current medication regime, and who has a commitment of continuing support from the treatment team. The Board would need to make this determination given the evidence of the nature of the appellant’s particular treatment history and likely clinical path to decompensation. It is particularly appropriate to remit the matter for a new hearing given the fresh evidence of the Crown on the appeal, which we accept, that Ms. Singh was recently involuntarily admitted to hospital. This involuntary admission was upheld by the Board at a restriction of liberties hearing on February 18, 2026. There is nothing in the record before us that would explain the nature of the admission, the treatment received, and how any of this might bear on the appropriateness of a conditional discharge.
|
