|
Criminal - NCR - General (2). Ramos (Re)
In Ramos (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed a defendant's NCR appeal, here brought against a decision continuing detention on the grounds that it was "inconsistent with the requirement under s. 672.54 ['Dispositions by a Court or Review Board - Terms of Dispositions'] of the Criminal Code, R.S.C. 1985, c. C-46, to impose the least onerous and least restrictive disposition that is compatible with public safety."
Here the court generally reviews the NCR regime:D. LEGAL FRAMEWORK
[12] At the outset, it is helpful to recall the origins and guiding principles of the legislative framework that Parliament created to balance the need for public safety with respect for the equality, liberty, and dignity of individuals found not criminally responsible due to mental disorder.
[13] How the law responds to people who commit offences while affected by a mental disorder reflects core societal values. A verdict of not criminally responsible recognizes that although the act or omission prohibited by the criminal law occurred, the individual lacked the necessary criminal intent because their mental condition affected their ability to appreciate the nature and consequences, or wrongfulness, of their actions. As a result, moral culpability is absent. The dispositions available under this regime are therefore not traditional punishments; they are protective and supervisory measures designed to address both the absence of criminal responsibility and any ongoing concerns about public safety. While community safety remains a central concern, individuals found NCR are equally entitled to dignity, equal treatment, and fairness. These protections must be applied in a way that accounts for their specific needs, vulnerabilities, and the impact of their mental condition: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at paras. 20, 30, 95; Woods (Re), 2021 ONCA 190, 154 O.R. (3d) 481, at paras. 35, 53, 56; R. v. Conway, 2008 ONCA 326, 90 O.R. (3d) 335, at para. 64, per Lang J.A. (dissenting, though not on this point), aff’d 2010 SCC 22, [2010] 1 S.C.R. 765; R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at pp. 1321-1325.
[14] Meeting this standard has been challenging. Historically, people with mental illnesses who became involved in the justice system often faced stigma, misunderstanding, and fear. Assumptions of permanent dangerousness were common, risks were frequently overstated, and individuals were subjected to long periods of detention with few safeguards. Shame and stigma deepened these hardships and created additional social and psychological barriers to accessing justice: R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, at pp. 973-74, 994, 1016; Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566, at para. 31; Winko, at paras. 18, 35-36, 58, 84, 95; Ontario (Attorney General) v. G., 2020 SCC 38, [2020] 3 S.C.R. 629, at paras. 61-63.
[15] To address these concerns, Parliament enacted Part XX.1 of the Criminal Code in 1991. The new scheme affirms the equality and dignity of people found NCR and seeks to provide them with the highest degree of liberty that remains compatible with public safety. It emphasizes individualized assessment, treatment, and reintegration, replacing the prior model of broad and often indefinite detention with carefully tailored dispositions that adjust as an individual’s level of risk changes. This framework reflects a commitment to supporting recovery and reintegration while maintaining appropriate safeguards for the community. In all these ways, Part XX.1 embodies the principles of the United Nations Convention on the Rights of Persons with Disabilities, Can. T.S. 2010 No. 8, which Canada later pledged to uphold – respecting liberty and dignity, accounting for diverse needs, and advancing equality and inclusion: Winko, at paras. 9, 16, 33, 39-42, 54, 81-91, 95; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, at para. 55; Convention, Arts. 1, 3.[1]
[16] Parliament placed the Review Board at the centre of this process. To fulfill its role, it was designed as a specialized tribunal with expertise in assessing complex situations and making fair, informed decisions. Its inquisitorial approach obliges it to actively seek out information relevant to people found NCR, particularly where significant restrictions on liberty are at stake: Murray (Re), 2020 ONCA 547, at paras. 16-18; Winko, at paras. 54-55, 58-62, 69.
[17] The Board must grant an absolute discharge if the individual does not pose a significant risk to public safety. That risk must be real, substantial, and supported by evidence to justify continued oversight. Even where some risk exists, s. 672.54 of the Criminal Code requires the least restrictive and least onerous disposition compatible with public safety. Any restrictions must be evidence-based and responsive to the person’s liberty interest, mental condition, reintegration needs, and broader circumstances. All these factors must be a major focus, and overlooking or failing to meaningfully engage with them is a reversible error: Marmolejo (Re), 2021 ONCA 130, 155 O.R. (3d) 185, at paras. 34, 37, 52; Ahmadzai (Re), 2020 ONCA 169, at para. 8; Tompkins (Re), 2018 ONCA 654, at paras. 22-23; Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19.
[18] Respecting these guarantees is essential to safeguarding the Charter rights of individuals found NCR and ensuring they are not treated more severely than those who are convicted: Winko, at paras. 3, 15-16; G., at para. 67; R. v. Jones, 2019 ABCA 313, 378 C.C.C. (3d) 77, at paras. 22-23. At the same time, the Board’s responsibilities must be carried out with full awareness of the need to protect the public, particularly in cases involving serious or violent conduct. Balancing these interests requires the Board to:1. Remain attentive to constitutional protections and avoid the influence of stereotypes or prejudice;
2. Give thoughtful weight to the reasonable wishes and preferences of NCR individuals, while still prioritizing community safety;
3. Undertake a careful, individualized assessment that avoids assuming permanent or inherent dangerousness and instead evaluates the person’s present clinical and social circumstances;
4. Keep the legal thresholds distinct from hospital preferences or institutional rule compliance, recognizing that clinical convenience cannot substitute for the legal test and conducting a holistic assessment which acknowledges strengths and improvements;
5. Exercise its own independent judgment when reviewing professional opinions; and
6. Approach hearsay evidence with care, ensuring that any reliance on such information is fair, balanced, and consistent with the Board’s dual role of protecting both individual rights and public safety. [19] First, the Board must be mindful of constitutional rights and remain alert to the risk of stereotypes and prejudice. Every person who comes before the Board has inherent dignity and worth, regardless of the nature of the offence, and is entitled to be treated with respect. Upholding this dignity is not optional; it is central to the human rights and freedoms that guide the Board’s work. Although the index offence may have been serious and may understandably raise concerns for community safety, the Board’s processes should continue to recognize the humanity of individuals found NCR, reflect the commitment to equality expressed in Part XX.1 and in the Convention, and help reduce the shame and stigma that often prevent people with mental illnesses from exercising their rights: Winko, at paras. 61, 81, 90; R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 32, 142; Gibbs, at para. 31; Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, [2000] 1 S.C.R. 703, at para. 29; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, [2021] 3 S.C.R. 176, at para. 56.
[20] Second, the reasonable wishes of people found NCR deserve thoughtful and serious consideration. Listening to their perspectives can support the goals of liberty, dignity, and personal autonomy that Part XX.1 envisions. Doing so also acknowledges that, despite having committed a violent offence, individuals may have clear insights into their own needs, especially when supported by treatment and clinical care. Respectfully engaging with their preferences helps recognize their humanity and sense of self, and it avoids assuming that a mental illness automatically prevents someone from meaningfully participating in decisions about their lives: Tompkins, at paras. 33-43; Winko, at paras. 74, 81; Granovsky, at paras. 29, 33, 36-38, 66, 69.
[21] Third, Board decisions require a careful, individualized assessment that avoids assumptions of permanent or inherent dangerousness. While public safety must always be the Board’s primary concern, Part XX.1 also emphasizes rehabilitation, recognizing that many people found NCR improve significantly with proper treatment and supports. The Board should focus on the individual’s current circumstances and clinical presentation rather than allowing the seriousness of the past offence – however troubling – to overshadow evidence of progress or reduced risk. Because mental health conditions can change over time, past behaviour influenced by illness or social marginalization may not be a reliable predictor of future risk, particularly where treatment has been effective and appropriate supports are in place: Winko, at paras. 35, 37, 58-61, 87-89, 93; G., at para. 65; Granovsky, at paras. 27, 33, 36-38; Gibbs, at para. 31; Hills, at para. 141.
[22] Fourth, the legal tests must be kept distinct from hospital preferences and institutional rule compliance. I address each of these in turn.
[23] Clinical convenience cannot determine the outcome. Even when a hospital may feel that continued detention or more restrictive conditions are easier from an operational standpoint or clinically ideal, individuals found NCR are legally entitled to the least restrictive and least onerous disposition that still meets the demands of public safety: Kalra (Re), 2014 ONCA 233, at para. 10; Valdez (Re), 2018 ONCA 657, at para. 21.
[24] Institutional rule compliance, while potentially relevant, is also not determinative. Difficult moments, minor rule violations, or behaviour that diverges from mainstream expectations do not automatically indicate risk, nor should they overshadow evidence of stability or progress. Disagreements with the treatment team or behaviours shaped by disability cannot be used to strip a person of dignity or set unrealistic standards that do not account for the challenges of mental illness. A holistic assessment is required – one that considers the whole person, including strengths and improvements, rather than focusing solely on a list of perceived shortcomings. People found NCR must be treated as individuals deserving of dignity, even when they do not fit neatly into institutional norms: Marmolejo, at paras. 44-47; R. v. Leonce, 2021 ABCA 270, 28 Alta. L.R. (7th) 109, at para. 70; R. v. H.M.H., 2021 ABCA 118, 404 C.C.C. (3d) 71, at paras. 17, 36-44, 58-62; G., at para. 61; Winko, at para. 74; Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, at para. 67.
[25] Fifth, the Board must exercise its own independent judgment. While psychiatrists and treatment teams provide critical expertise – especially given the individual’s history of mental illness and the need to ensure community safety – their opinions must still be assessed carefully. Expert evidence should be rooted in concrete facts and cannot replace the Board’s responsibility to apply the legal standards. Conclusions based on speculation or unsupported assumptions cannot justify restrictions on liberty, particularly when the goal is to balance safety with meaningful rehabilitation and avoid unnecessary institutionalization: Leonce, at paras. 71-76; Williams (Re), 2021 ONCA 90, at para. 15; Carrick (Re), 2018 ONCA 752, at para. 24; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 37, 59; International Air Transport Association v. Canada (Transportation Agency), 2024 SCC 30, 496 D.L.R. (4th) 385, at para. 78.
[26] Finally, the same care is required with hearsay evidence. While admissible, it must be carefully evaluated — particularly when it portrays people found NCR negatively. The Board must consider reliability concerns and any conflicting evidence, including NCR individuals’ own account: Campbell (Re), 2019 ONCA 973, at paras. 20-21; Ranieri (Re), 2015 ONCA 444, 336 O.A.C. 88, at para. 17. . Tobin (Re)
In Tobin (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed an NCR appeal, here wrt the hospital seeking community housing for the appellant:Issue 2: The Board erred in failing to impose a condition in its disposition requiring the hospital to exercise due diligence in pursuing community housing for Mr. Tobin
[14] Mr. Tobin submits that the Board erred in not including an order in the disposition requiring the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin. We agree.
[15] In its reasons, the Board admonished the hospital for letting Mr. Tobin’s housing at Emmaus Place lapse without a plan for suitable permanent housing. The Board expressed its concerns as follows:Dr. Nagari testified that [Mr. Tobin’s] condition settled quickly once he was readmitted, and Mr. Tobin could have been transitioned to discharge planning to the community after 2 weeks or so, but for the fact that there is no suitable housing available for him at this time. He currently exercises indirectly supervised passes into the community without issue. The hospital now has him on 4 wait-lists for permanent housing. The panel finds it very concerning that arrangements were not made for Mr. Tobin to transition to permanent housing from Emmaus Place long before his tenancy at Emmaus Place was terminated. The hospital was aware that Emmaus Place is a transitional housing facility, intended to house individuals for approximately 2 years while they are being transitioned to permanent housing. The hospital was aware that his tenancy was extended by Emmaus Place a few years ago. The hospital was also aware that there is a waiting list of many months to years to secure the supervised permanent housing. It was incumbent on the hospital to understand Mr. Tobin’s tenancy situation with Emmaus Place, and to take the necessary steps to have Mr. Tobin placed on a waiting list in a timely manner to prevent the current situation where Mr. Tobin is hospitalized only to await the availability of suitable housing. [Emphasis added.] [16] The Board went on to state that a detention order was necessary as a result of this situation because Mr. Tobin cannot live independently in the community. The Board further urged “the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin”. However, the Board’s disposition, which sets out all the terms of its order, does not include a direction to the hospital requiring that it exercise all due diligence in pursuing housing for Mr. Tobin. As it stands, this is merely a strong suggestion in the reasons.
[17] In Re Le Feuvre, 2020 ONCA 822, at para. 12, this court found that “it was an error for the Board to issue a disposition that fails to reflect its reasons.” We find that the Board made a similar error in this case. The fact that Mr. Tobin is obligated to reside at the hospital when his current condition would allow him to live in some form of supervised community housing is at least in part due to the hospital’s error. The hospital’s obligation to remedy this situation should be reflected in the Board’s disposition rather than simply a strong suggestion to act with due diligence in the reasons. Accordingly, we would amend the disposition to include the following term: “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”.
[18] This term is broad enough to give the hospital the necessary flexibility to manage the priority needs of other patients under its care. It is also broad enough to ensure the hospital takes necessary steps to determine Mr. Tobin’s needs and the available options to meet them. However, making this a term of the order ensures that the hospital will treat Mr. Tobin’s need for housing as an obligation rather than a suggestion.
Disposition
[19] The appeal is allowed to the limited extent that the disposition of the Board is amended to add a term that “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”. The appeal is otherwise dismissed. . Joya (Re)
In Joya (Re) (Ont CA, 2025) the Ontario Court of Appeal dismissed an ORB NCR appeal, here setting out some of the applicable statutory regime:[9] The issues for determination are whether the Board’s decision was unreasonable and whether there was a breach of the appellant’s Charter rights.
[10] Section 672.78 of the Criminal Code states that a decision of the Board may be set aside only if it is unreasonable or unsupported by the evidence, if it is based on an error of law, or if there was a miscarriage of justice.
[11] Section 672.54(a) of the Criminal Code requires the Board to consider whether the accused presents a “significant threat to the safety of the public”. The Board must determine the least restrictive disposition that will protect the public, taking into account the accused’s mental condition. To deny an accused an absolute discharge, there must be evidence that they pose a foreseeable and substantial risk of serious harm to the public if discharged absolutely, and that risk cannot be speculative: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 57, 68; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 16-17.
[12] Given the Board’s expertise, an appellate court should not easily overturn its assessment of risk: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 37; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 95. . Joya (Re)
In Joya (Re) (Ont CA, 2025) the Ontario Court of Appeal considered an NCR appellant's argument that the lack of psychiatric
services was prejudicial to his ORB disposition.Note: The appellant's case was unsuccessful on this argument, due to the court disagreeing with him that he was so prejudiced on the tribunal's fact-finding (a situation that I would not usually extract as it reflects no useful legal points). However, I'm using the case to open a new related sub-topic as the 'inadequacy of medical services' has become a serious problem, particularly in cases of social benefit entitlement where medical evidence is required (eg. ODSP). The court continues to state:(2) The Charter argument
[18] The appellant argues that his ss. 7, 9, and 15 Charter rights were infringed because he was denied an absolute discharge due to waitlists and a lack of resources that made him unable to obtain acceptance into a non-forensic mental health treatment program. The Board declined to make this order for two reasons.
[19] First, the appellant’s complaint was about the adequacy of psychiatric services if he was given an absolute discharge, but the Board loses its jurisdiction once an absolute discharge is ordered. It was therefore doubtful whether it had jurisdiction to make the order requested.
[20] Second, and in any event, the Board concluded that an absolute discharge was inappropriate not because of the lack of non-forensic care, but because of its conclusion that the appellant continues to present a significant threat to public safety. The Board concluded that the appellant needed to remain under the jurisdiction of the hospital for his illness to be monitored, and we see no error in this conclusion. While there was no certainty that the appellant would be able to successfully access treatment outside of the forensic care he received in the hospital, there was evidence that the hospital would assist the appellant in finding non-forensic care and that he would not be left without treatment. The Charter issue that was raised therefore did not arise.
[21] The Board was therefore entitled to deny the Charter relief that the appellant sought. . Ontario (Attorney General) v. G. [CCC Part XX.1]
In Ontario (Attorney General) v. G. (SCC, 2020) the Supreme Court of Canada summarizes aspects of CCC Part XX.1 ['Mental Disorder'], which applies to those who "are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 ...":V. Criminal Code, Part XX.1
[33] Part XX.1 of the Criminal Code sets out the “assessment‑treatment system” that applies to persons who are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 (Winko, at para. 16). Part XX.1 provides for the establishment of provincial review boards, with the responsibility to hold hearings to determine whether to grant persons found NCRMD conditional or absolute discharges under s. 672.54.[1]
[34] In Winko, at para. 20, this Court described the purposes of Part XX.1, a scheme founded on the “twin goals of fair treatment [for those found NCRMD] and public safety”:... the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. . . . [The NCRMD finding] triggers a balanced assessment of the offender’s possible dangerousness and of what treatment‑associated measures are required to offset it. Throughout the process the offender is to 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. [para. 43] [35] Following a disposition or review hearing, a review board may order an absolute discharge, a conditional discharge, or a hospital detention (s. 672.54). In arriving at a disposition that is “necessary and appropriate in the circumstances”, review boards must take into account the safety of the public, along with the mental condition of the person found NCRMD, their reintegration into society, and their other needs (s. 672.54). Conditions relating to treatment may only be included in a disposition if the accused consents to the condition (s. 672.55).
[36] In general, disposition hearings are held within 45 days of an NCRMD verdict, and disposition review hearings are held no more than 12 months after the most recent disposition or disposition review hearing (ss. 672.47 and 672.81).
[37] The review board must absolutely discharge any person found NCRMD unless it concludes, based on the evidence presented at the hearing, that the person poses a “significant risk of committing a serious criminal offence” (Winko, at para. 57; see also s. 672.54(a)). If the review board cannot make the required positive finding of significant risk, jurisdiction under Part XX.1 falls away — the criminal law cannot legitimately restrain that individual’s liberty any further (Winko, at para. 33).
[38] This constitutional imperative, coupled with the individualized review that the review board must undertake at least annually in every person’s case, illustrate Part XX.1’s rejection of “invidious” stereotypical notions that persons with mental illnesses are inherently dangerous (Winko, at paras. 35, 47 and 89). Risk cannot be assumed; it must be positively found. And it must be found based on evidence considered within an individualized assessment of a person’s circumstances.
|
