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Criminal - NCR - Mootness. Kazi (Re)
In Kazi (Re) (Ont CA, 2025) the Ontario Court of Appeal held that an NCR appeal was moot, here due to common situation of a subsequent ORB 'disposition' (ie. order):[10] After the initial ORB hearing, the appellant stopped taking his oral medication and experienced decompensation. In December 2024, he was involuntarily admitted to the Hospital for concerns over his “deteriorating mental health”. Prior to that, the Hospital notified the Board that they were requesting a mandatory early review of the October 2024 Disposition pursuant to s. 672.81(2) of the Criminal Code, R.S.C. 1985, c. C-46.[21] We agree with the Crown’s position that the appeal is moot because the October 2024 Disposition is spent and is of no further legal effect. See Halat (Re), at para. 9; Roberts (Re), at para. 5. The January 2025 Disposition is currently operative, and no appeal has been taken from it.
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[22] Despite the amicus’ able submissions, we are not persuaded that the October 2024 Disposition is not moot because significant threat was not argued at the January 2025 hearing.
[23] For one, s. 672.63 of the Criminal Code makes it clear that a disposition shall only “remain in force until the Board holds a hearing to review the disposition and makes another disposition” (emphasis added). Consequently, the issuing of a new disposition means that the previous disposition no longer governs or applies to the appellant. See also Halat (Re), at para. 9.
[24] Second, the circumstances of the request for early review and the joint position taken by the parties in the January 2025 hearing demonstrates that there is no “live controversy” between the parties in relation to the October 2024 Disposition. See Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at pp. 357-58; Halat (Re), at para. 9. As noted by the Board in its January 2025 Disposition, in light of the significant subsequent events since the previous disposition, “[a]ll parties agreed that the [Hospital’s] initial restriction of liberty was warranted, necessary and appropriate, as is the ongoing restriction of liberty.” As the Crown points out, implicit in the joint submission on this issue was an acknowledgement that continued detention for the appellant represented the least onerous and least restrictive measure in the circumstances. After all, the purpose of a restriction of liberty hearing “is to act as a final liberty safeguard, allowing for a second-look at those hospital decisions that have such serious ramifications for the liberty of the NCR accused, that they should be examined ahead of the next yearly review”. See Heinekamp (Re), 2024 ONCA 183, at para. 25, citing Campbell (Re), 2018 ONCA 140, 139 O.R. (3d) 401, at para. 64. It would therefore be incongruent for the appellant to acknowledge that a continuation of significant restrictions on his liberty are necessary on the restriction of liberty hearing while arguing for an absolute discharge on the early review hearing.
[25] Finally, the Board review process is inquisitorial in nature. See Winko v. Forensic Psychiatric Institute, 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 54. “Once a detention order is made, the task of monitoring whether an NCR individual continues to constitute a significant threat to the safety of the public is given to the Board” (emphasis in original). See R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 26. If, at the end of the hearing, “the court or Review Board cannot so conclude, the legal justification for confinement is absent and the NCR [individual] must be released". See Owen, at para. 27, citing Winko, at para. 51. This obligation to consider the significant threat analysis applies to all review hearings, not just the annual ones.
[26] We are not persuaded to exercise our discretion to decide this moot appeal. As the amicus acknowledges in his written materials, this is not a case where the appeal raises an important legal issue or is evasive of review. See Campbell (Re), at paras. 23-26. The issues raised on this appeal are confined to ones of concern only to the parties in the immediate circumstances of the appellant. There is therefore no reason to depart from the general rule that this court does not decide moot cases. See Borowski; Abernethy (Re), 2021 ONCA 509, at para. 4.
[27] We further do not accept that the concerns raised by the amicus create the problematic scenarios he suggests. For one, the early reviews initiated by hospitals are included in the Part XX.1 scheme to “respond quickly to changing circumstances relevant to both the individual’s best interests and public safety concerns.” See Katsav (Re), 2013 ONCA 627, 118 O.R. (3d) 192, at paras. 12-13. It is not an abuse of process for the hospital to request early review in the face of significant events that would “justif[y] a reconsideration of [the appellant’s] status” (Katsav (Re), at para. 14) and would potentially be relevant fresh evidence on appeal. See Latouche (Re), 2015 ONCA 675, at para. 7, citing Owen, at paras. 48-61 and 78; Conway (Re), 2018 ONCA 139, 404 C.R.R. (2d) 319, at paras. 8-9. Second, “[c]hanges in circumstances or in an accused's condition are more effectively addressed by the [Board] process than by the appellate process.” See Katsav (Re), at para. 13. NCR accused are not “at the mercy” of the hospital in such hearings. It is open to counsel to raise arguments on live issues they would like the Board to decide upon. . Le Feuvre (Re)
In Le Feuvre (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an NCR ORB appeal, here in the common circumstance where circumstances have "materially changed" (here where the appellant has "moved to a long-term care facility") since the appeal was commenced and render the appeal moot:[2] The sole issue on appeal is whether the Board’s determination that the appellant continues to constitute a significant threat to the safety of the public was unreasonable.
[3] The Crown has filed fresh evidence indicating that there was a subsequent urgent hearing at the request of CAMH on April 8, 2024. In its April 2024 disposition, the Board continued the appellant’s detention order and transferred him to a new hospital with privileges at the discretion of the person in charge to allow community living in approved supervised accommodation.
[4] The purpose of the April 2024 disposition was to allow the appellant to be moved to a long-term care facility in Prescott. He moved in mid-April 2024.
[5] We accept the Crown’s position that the appeal is moot because the October 2023 disposition is now spent: Halat (Re), 2019 ONCA 112, 2019 CarswellOnt 1885, at para. 9. CAMH took no position on this issue.
[6] Despite Ms. Szigeti’s able argument, we also accept the Crown’s further position that we should decline to hear this appeal because the appellant’s circumstances have now materially changed, and the issue of significant threat should be assessed based on the appellant’s current circumstances.
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