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Criminal - NCR - General

. Dhanpaul (Re)

In Dhanpaul (Re) (Ont CA, 2024) the Court of Appeal considered an appeal from an Ontario Review Board NCR decision establishing a conditional discharge, the appellant seeking an absolute discharge:
[8] Section 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 provides, in part, that:
When a court or Review Board makes a disposition …, it shall, taking into account 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, make one of the following dispositions that is necessary and appropriate in the circumstances:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely.
[9] A “significant threat” is a risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature (though not necessarily violent), which must be more than speculative and must be supported by the evidence: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 46, 48-51 and 57.

[10] The Board’s findings are reviewed on a reasonableness standard. If the Board’s decision falls within a range of reasonable outcomes, it is entitled to deference, absent an error in law or a miscarriage of justice: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31.

[11] The test for reasonableness is whether the Board’s risk assessment and disposition order are supported by reasons that can bear a “somewhat probing” examination: Owen, at para. 33. In considering whether the decision was reasonable, the court must consider the reasons given and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.

....

[20] Mr. Dhanpaul points out that, “Lack of insight has its place in the overall clinical picture; however, it must not dominate the significant threat analysis” and that some NCR accused may never gain any real insight into their situation. However, a lack of insight alone cannot overshadow the rest of the evidence: Woods (Re), 2019 ONCA 87, at para. 17 and Sim (Re), 2019 ONCA 719, at para. 24-25.
. R. v. Jackman [SOR]

In R. v. Jackman (Ont CA, 2024) the Court of Appeal considered the SOR for denying an NCR defence:
[20] Assuming the trial judge applied the correct legal test, the standard of review for a trial judge’s decision to reject an NCR defence is reasonableness. A verdict may be unreasonable where it is not supported by the evidence, or if it is based upon a misapprehension of evidence that was essential to the reasoning process: R. v. Worrie, 2022 ONCA 471, 415 C.C.C. (3d) 45, at paras. 101-02, 106, 138 and 158.
. R. v. Jackman [illustration]

In R. v. Jackman (Ont CA, 2024) the Court of Appeal illustrates the conduct of an NCR 'defence', denied on fact-findings:
[11] After receiving Dr. Gray’s report, counsel for the appellant indicated that he would be seeking a finding that the appellant was NCR pursuant to s. 16(1) of the Criminal Code. He produced a February 2016 report from Dr. Julian Gojer which, although not relied on at trial, had raised the prospect that the appellant might be NCR. Specifically, Dr. Gojer had stated that, while he lacked information about the appellant’s past criminal history and psychiatric history that would be necessary to conduct a risk assessment, “it [was] likely that [the appellant had] a defense based on section 16(1)”.

[12] Dr. Gray prepared an addendum addressing the issue of criminal responsibility, while Dr. Gojer prepared a supplementary report to his February 2016 report focusing specifically on the NCR issue.

[13] Although both doctors differed in their exact diagnosis, they agreed that the appellant suffered from a disease of the mind. Both doctors further agreed that the appellant was capable of appreciating the nature and quality of the acts leading to the offenses, and that those actions were legally wrong. However, the doctors disagreed on whether the appellant was aware of the moral wrongfulness of his actions. Thus, the key issue in dispute at the NCR hearing was whether the appellant knew and had the capacity to know that his conduct was “morally wrong”.

[14] The trial judge accepted the evidence of Dr. Gray and rejected that of Dr. Gojer on this issue, finding that the appellant knew that his conduct was morally wrong in the eyes of the community. In reaching that conclusion, the trial judge relied on the fact that the appellant had engaged in similarly abusive, dishonest, and manipulative behaviour in the past and had never raised an NCR defence in prior criminal proceedings. She also found that he suffered from Anti-Social Personality Disorder (ASPD) and had a general disregard for societal norms, despite being aware of them. In her view, his conduct was fuelled primarily by drug use, sexual gratification, and pecuniary gain, and the content of the messages themselves, as well as his post-arrest conduct, demonstrated that he was aware of the moral wrongfulness of his actions. Although the appellant had stated to Dr. Gojer that he felt that what he was doing was “morally the right thing to do”, the trial judge found this statement to be a self-serving and contrived attempt to avail himself of the NCR defence and avoid a Dangerous Offender designation.

[15] Accordingly, the trial judge found that the NCR defence was not available to the appellant and dismissed his s. 16(1) application.

....

3. The trial judge reasonably rejected the NCR defence

[36] The appellant argues that the trial judge erred in failing to accept Dr. Gojer’s opinion that the appellant believed that he was doing what he thought was necessary in order to protect his children from sexual abuse by the Jemetz family. Dr. Gojer therefore concluded that, through the distorted lens of his mental illness, the appellant saw his conduct as being morally justified.

[37] The trial judge understood Dr. Gojer’s opinion and carefully considered his findings in great detail in her reasons. However, the trial judge ultimately preferred the opinion of Dr. Gray who concluded that, even accepting that the appellant believed that members of the Jemetz family were sexually abusing his children, he knew that the right thing to do would have been to contact police rather than directly threaten the family. Dr. Gray further opined that the appellant committed these offenses primarily due to his use of stimulants, as well as for pecuniary gain and sexual gratification, rather than because of his delusions.

[38] I see no legal error in the trial judge’s analysis and her weighing of the evidence is entitled to deference. She engaged carefully with the psychiatric evidence and clearly explained why she preferred the evidence of Dr. Gray over that of Dr. Gojer. Her finding that the appellant was not credible in claiming that he felt morally justified in his action was amply supported in the record, including by his post-arrest conduct denying or minimizing his harassment. In short, her ruling that the NCR defence was not available to the appellant was reasonable, and I see no basis for appellate intervention.

[39] I would therefore dismiss this ground of appeal.
. Aliko (Re)

In Aliko (Re) (Ont CA, 2023) the Court of Appeal considered a CAMH-brought appeal of an ORB order for absolute discharge, complicated by recent medical developments clarified via the statutory 'fresh evidence' provision [CCC 672.73(1)]:
[6] Further, pursuant to s. 672.76(2)(a.1), the Hospital sought an order suspending the absolute discharge pending the determination of the appeal. The application was based on a fresh evidence application, detailing Mr. Aliko’s circumstances since his absolute discharge, which included the affidavit of Dr. Sumeeta Chatterjee, the Hospital’s “person in charge”. Mr. Aliko did not oppose either application. On August 14, 2023, Pepall J.A. made an order suspending the absolute discharge. The conditional discharge, to which Mr. Aliko was previously subject, came back into force pending the determination of the appeal: s. 672.77.

....

Discussion

[9] On appeal, the Hospital seeks the admission of the fresh evidence and submits that the absolute discharge be set aside, the conditional discharge imposed on April 21, 2022 be re-instituted, and the matter be sent back to the Board for a new hearing. This approach is supported by the Attorney General. Mr. Aliko takes no position on the appeal.

[10] This is an appropriate case to admit the fresh evidence tendered by the Hospital. The affidavit of Dr. Chatterjee meets the test for the admission of fresh evidence under s. 672.73(1) of the Criminal Code, which provides:
672.73(1) An appeal against a disposition by a court or Review Board or placement decision by a Review Board shall be based on a transcript of the proceedings and any other evidence that the court of appeal finds necessary to admit in the interests of justice.
[11] In our view, it is in the interests of justice to admit the affidavit of Dr. Chatterjee: Furlan (Re), 2014 ONCA 740, 123 O.R. (3d) 287, at para. 10, and R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 48-61. The information, based upon more current events, was not available at the time of the hearing. The evidence appears to be reliable; it was not challenged on appeal. It bears on the critical issue the Board was tasked with deciding.

[12] Dr. Chatterjee’s affidavit demonstrates a dramatic and rapid decline in Mr. Aliko’s condition since being discharged absolutely, resulting in a number of involuntary hospital admissions. The criminal charges remain outstanding. Nonetheless, the description of his post-discharge behaviour, considered in light of his deteriorated mental condition, supports Dr. Chatterjee’s opinion – absent the involvement and supervision of the Board, Mr. Aliko poses a significant risk of serious harm to the public: see LaTouche (Re), 2015 ONCA 675.

[13] In concluding, we observe that Mr. Aliko’s situation – being brought back under the jurisdiction of the Board based on post-discharge events – is unusual, although not without precedent. Notably, Mr. Aliko did not resist the order made by Pepall J.A.; nor did he oppose the Hospital’s appeal. To his credit, he appears to acknowledge the need for the Board’s supervision over him at this point in time.

Disposition

[14] The fresh evidence is admitted. The appeal is allowed. The April 26, 2023 absolute discharge is set aside. The conditional discharge, dated April 21, 2022, is reinstated on the same conditions. A new hearing should be held by the Board no later than 60 days from the release of this decision.
. Billing (Re)

In Billing (Re) (Ont CA, 2023) the Court of Appeal considers (and dismisses) an NCR appeal:
[13] The Board’s findings are reviewed on a reasonableness standard. If the Board’s decision falls within a range of reasonable outcomes, it is entitled to deference, absent an error in law or a miscarriage of justice: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31. The test for reasonableness is whether the Board’s risk assessment and disposition order are supported by reasons that can bear an even “somewhat probing” examination: Owen, at para. 33. The court must evaluate reasonableness by considering the reasons given by the Board and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.

....

[15] Pursuant to s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46, the Board must determine that an NCR accused poses a “significant threat to the safety of the public.” A “significant threat” is a risk of serious physical or psychological harm to members of the public resulting from conduct that is criminal in nature (though not necessarily violent), which must be more than speculative and must be supported by the evidence: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 46, 48-51, 57.
. Summers (Re)

In Summers (Re) (Ont CA, 2023) the Court of Appeal considered NCR in an indigenous context:
[12] As noted by the majority in its reasons, the application of Gladue principles to ORB dispositions requires a consideration of “the unique circumstances and background of aboriginal NCR accused”: R. v. Sim, 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, at para. 19; see also Mitchell (Re), 2023 ONCA 229, at paras. 22-23.
. Mott (Re)

In Mott (Re) (Ont CA, 2023) the Court of Appeal noted the standard of review for NCR appeals:
[9] We note that absent an error on a question of law or a miscarriage of justice, appellate review of the Board’s decisions is limited to determining whether the decision of the Board is reasonable. The court does not make its own judgement on whether the appellant poses a significant threat or re-weigh the considerations before the Board: Woods (Re), 2019 ONCA 87, at para. 14; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. A decision is reasonable if, having regard to the Board’s reasoning process and the outcome, it reflects “an internally coherent and rational chain of analysis… that is justified in relation to the facts and the law”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 83-85, 94, 125.
. R. v. Salifu

In R. v. Salifu (Ont CA, 2023) the Court of Appeal considers 'provocation' [under CCC 232], which - if operative - can reduce murder to manslaughter. In these quotes the court briefly cites NCR ('not criminally responsible') law:
The NCR Instruction

[28] The defence of mental disorder is set out in s. 16(1) of the Criminal Code, which provides that:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
[29] There are two possible paths to an NCR finding. If one establishes that they suffered from a mental disorder at the time of the offence, they will not be held responsible for their conduct if 1) they were incapable of appreciating the nature and quality of the act or omission, or if 2) they did not know it was wrong.
. Edgar (Re)

In Edgar (Re) (Ont CA, 2023) the Court of Appeal set out the appellate standard of review for 'not criminally responsible' decisions:
(1) Statutory Framework and Standard of Review

[24] Absent an error on a question of law or a miscarriage of justice, appellate review of the Board’s decisions is limited to determining whether the decision of the Board is reasonable. The court does not make its own judgement on the significant threat question or re-weigh the considerations before the board: Woods (Re), 2019 ONCA 87, at para. 14; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at para. 24. A decision is reasonable if, having regard to the Board’s reasoning process and the outcome, it reflects “an internally coherent and rational chain of analysis… that is justified in relation to the facts and the law: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 83-85, 94, 125.
. Edgar (Re)

In Edgar (Re) (Ont CA, 2023) the Court of Appeal considered the four NCR factors set out in s. 672.54 of the Criminal Code:
672.54 When a court or Review Board makes a disposition under subsection 672.45(2), section 672.47, subsection 672.64(3) or section 672.83 or 672.84, it shall, taking into account 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, make one of the following dispositions that is necessary and appropriate in the circumstances:
(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.
[4] Following the appellant’s 2022 annual review hearing, the Board decided to maintain the appellant’s existing detention order at Waypoint without alteration. The appellant appeals this disposition on the basis that the Board failed to: (i) consider all four statutory factors identified under s. 672.54 of the Criminal Code; (ii) recognize that his case constituted a treatment impasse; and (iii) exercise its inquisitorial and supervisory powers break the alleged impasse: Criminal Code, R.S.C. 1985, c. C-46, s. 672.54.

....

(2) The Board Reasonably Considered All Relevant Statutory Factors

[25] The appellant argues that, although the Board addressed the issue of public safety, it failed to consider the other three statutory factors set out in s. 672.54 of the Criminal Code, namely, the mental condition of the accused, the reintegration of the accused into society, and the other needs of the accused.

[26] We do not agree. As our discussion above makes plain, the Board considered in great detail the appellant’s mental condition. It also considered the appellant’s reintegration into society, including the efficacy of the various treatment plans proposed and the possibility of transferring him to another facility. The Board further considered the appellant’s other needs, including the desirability of arranging additional contact with his family.

[27] Moreover, the Board’s decision to continue the appellant’s detention order was amply supported on the record. The Board recognized that the appellant’s prolonged time in seclusion was a “most serious concern” but concluded that no other hospital in Ontario had the necessary high-secure resources necessary to manage his aggression. As noted above, counsel for the appellant conceded that these findings were appropriate and necessary in the circumstances.

[28] In our view, the Board’s reasoning and findings on all of these issues were reasonable and we dismiss the first ground of appeal.

(3) The Board did not Err in Failing to Find a Treatment Impasse

[29] A treatment impasse refers to a situation where an NCR accused has been incarcerated for a prolonged period of time, and no progress has been made or is likely to be made with respect to his treatment: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 42. A long period of incarceration without treatment or progress can constitute an impasse, as can an accused’s stubborn refusal to engage with the treatment team. While a treatment impasse might well be tolerable for a while as the situation ripens, after a certain point the Board is obliged to go further: R. v. Conway, 2008 ONCA 36, 98 O.R. (3d) 335, at paras. 29-34 and 83-85; Gonzalez (Re), 2017 ONCA 102, 136 O.R. (3d) 453, at paras. 18-30, 41.

[30] In this case, the Board candidly acknowledged that the fact that the appellant had not made any progress since been transferred to Waypoint in 2019 was a matter of “serious concern”. The Board also noted Dr. Mishra’s comment that the hospital had hit “a brick wall” in their treatment efforts. At the same time, the hospital continued to be active in attempting to develop treatment options which might cause the appellant’s condition to improve. Waypoint had obtained two consultations with psychiatric experts and were attempting to act on those recommendations, including efforts to obtain government approval to administer a LAI form of clozapine.

[31] In our view, these circumstances are sufficient to distinguish the appellant’s situation from earlier cases in which a treatment impasse has been found to exist. We conclude that it was not unreasonable for the Board to decline to designate this case as being at an impasse and would dismiss this ground of appeal.

(4) The Board Fulfilled its Inquisitorial and Supervisory Responsibilities

[32] The appellant argues that the Board failed to recognize and act on its supervisory powers, noting in particular a Board comment in its Reasons for Disposition to the effect that “expert clinical decisions are not for the Board to make”. The appellant argues that the Board had an obligation to “leave no stone unturned in trying to improve his situation”, and that the Board failed to do so.

[33] The Board is empowered to make orders and conditions in a supervisory role or capacity with respect to an NCR accused’s mental treatment and clinical progress. This power encompasses “anything short of actually prescribing the treatment be carried out by hospital authorities”: Mazzei, at para. 39. For example, where a treatment impasse is reached, the Board is entitled to order a re-evaluation of current or past treatment approaches and exploration of alternatives. The Board must form its own independent opinion about the accused’s treatment plan and clinical progress and, in doing so, may order an independent assessment: Gonzalez, at para. 30.

[34] In this case, we note that there was extensive evidence before the Board with respect to the appellant’s institutional history, treatment options, and the reasons behind his lack of progress in the last three years. None of this evidence was disputed in any meaningful way. Moreover, unlike in cases relied upon by the appellant such as Conway and Gonzalez, Waypoint had recently obtained an independent assessment of the appellant’s treatment options and was attempting to act on the recommendations set out in that assessment. The Board also carefully considered the possibility of transferring the appellant to another facility but concluded that no other hospital in Ontario was equipped with the high secure resources necessary to manage the appellant’s behaviour. We further note that the Board engaged in a constructive and helpful discussion of the clinical options available to the appellant, and reviewed possible measures that should be explored in an effort to improve his circumstances and condition.

[35] In short, it was not unreasonable for the board to decline to impose any additional conditions on Waypoint. We regard the Board’s comment that “expert clinical decisions are not for the board to make”, as suggesting nothing more than the Board’s acknowledgement of the limitations on its powers to prescribe actual treatment, and its recognition of the division of labour and authority between the hospital and Board that is well established in the jurisprudence: Mazzei, at para 35. We find that the Board properly recognized and exercised its inquisitorial and supervisory responsibilities in this case, and this ground of appeal is therefore dismissed.
. R. v. Roche

In R. v. Roche (Ont CA, 2023) the Court of Appeal considered the legal test for DNA sampling of a person found to be not criminally-responsible (NCR):
[10] Under section 487.051(3)(a) of the Code, a judge may make an order authorizing the taking of a sample of the DNA of a person found NCR where the judge is satisfied that it is in the best interests of the administration of justice to do so and the offence committed by the NCR is a designated offence.[1] The Code sets out factors a judge is to consider.

[11] The order is discretionary in nature. The unique status of an NCR offender is reflected in the discretionary nature of the statutory provision.

[12] Absent an error in principle, a failure to consider a relevant factor, or an overemphasis of an appropriate factor, an appellate court should only intervene if the discretionary decision under review was clearly unreasonable: R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at paras. 46-49.

[13] As described by Weiler J.A. in R. v. Briggs, (2001) 2001 CanLII 24113 (ON CA), 55 O.R. (3d) 417 (C.A.), at para. 22, the DNA data bank is designed to:
(1) deter potential repeat offenders; (2) promote the safety of the community; (3) detect when a serial offender is at work; (4) assist in solving cold crimes; (5) streamline investigations; and most importantly, (6) assist the innocent by early exclusion from investigative suspicion (or in exonerating those who have been wrongfully convicted).


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Last modified: 16-03-24
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