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Criminal - NCR - Reasons. 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.".
This case is relevant to facing social barriers in the NCR system, particularly homelessness:[2] For the reasons that follow, I would allow the appeal and remit the matter for a new hearing before a differently constituted panel, to take place as soon as reasonably possible. The Board approached its challenging task with care, producing detailed reasons that engaged with many of the issues and accounted for both public safety concerns and Mr. Ramos’s personal circumstances. However, the reasons do not fully engage with the proposed conditional discharge and associated safeguards, nor do they reflect a sufficient inquiry into available housing options, including the potential family accommodations which Mr. Ramos wished to explore. In addition, the assessment of Mr. Ramos’s risk profile relied in part on speculative concerns and certain factual assumptions not supported by the record.
[3] The result, though undoubtedly well-intentioned, is a disposition that does not fully reflect the legislative and constitutional imperatives that govern the treatment of people found NCR. Mr. Ramos’s circumstances also raise broader concerns about the challenges faced by people found NCR who are clinically stable but unable to access appropriate housing supports in the community. These concerns merit careful attention.
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[29] When detention has serious consequences — particularly where the person found NCR is classified as ALC, and no longer clinically requires inpatient treatment — the Board’s reasons must reflect the gravity of restricting liberty. While the Board acknowledged that Mr. Ramos did not require inpatient care and remained detained only because of housing issues, it did not address this with the level of scrutiny the situation required.
[30] The statutory framework presumes liberty in the absence of significant risk and seeks to maximize liberty even when risk exists. Where clinical grounds no longer justify detention, continued confinement — however temporary — requires strong and specific justification.
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G. SYSTEMIC PRESSURES
[58] This case brings into focus the broader systemic pressures within the NCR system, including the limited availability of appropriate housing and the difficult circumstances faced by individuals who live with both mental health conditions and significant social challenges. These realities make the Board’s task more complex: dispositions must continue to prioritize public safety while also supporting meaningful reintegration. It is important that individuals are not effectively penalized for barriers beyond their control, particularly when those barriers stem from gaps in housing, resources, or community supports. Approaching dispositions in this balanced way helps advance Parliament’s goals of promoting liberty, dignity, and equality for people found NCR and helps guard against situations where individuals risk prolonged or unnecessary institutionalization.
[59] Addressing these pressures requires proactive and flexible responses so that Parliament’s scheme is not weakened, and individuals’ Charter rights are not inadvertently limited, as occurred in Shortt (Re), 2020 ONCA 651, 152 O.R. (3d) 449. Although Shortt involved exceptional facts, the systemic challenges it exposed are more commonplace. If these challenges are left unaddressed, they jeopardize the legislative promise of maximizing liberty consistent with public safety and may hinder the ability of NCR individuals to reintegrate and participate fully in community life. Both the Board and hospitals play an important role in ensuring that these individuals are supported in ways that enhance their stability and autonomy, rather than pushing them to the margins: Shortt, at paras. 47-52. At paras 31-59 the court carefully walks through the issues of the case, which may be relevant to anyone involved with a similar case.
. Tobin (Re)
In Tobin (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed an NCR appeal.
Here the court cited a case that found an "it was an error for the Board to issue a disposition that fails to reflect its 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”. . Clayton (Re)
In Clayton (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed an NCR appeal from the ORB, here where the ORB "misapplied the legal test [SS: for "significant threat to the safety of the public"] by failing to apply it contextually".
Here the court considers an 'inadequate reasons' argument:B. Was the decision that Mr. Clayton is permanently unfit unreasonable, made without sufficient reasons?
[18] The Board found that Mr. Clayton was not only unfit, but “permanently unfit”. I agree with Mr. Clayton that the Board’s reasons for doing so are insufficient. It is not necessary to consider the reasonableness of the decision, but as I note below, there is reason for concern about its justifiability.
[19] In terms of the sufficiency of reasons, the Review Board will err if its reasons prevent meaningful appellate review, when approached functionally in the context of the record and the live issues at trial: Marmolejo (Re), 2021 ONCA 130, 155 O.R. (3d) 185, at paras. 49, 55, and 58; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at paras. 69-70, 74-75. To be sufficient to permit meaningful appellate review, “reasons must make clear what was decided and why, and the logical connection between the two”: R. v. Leonard, 2025 ONCA 63, at para. 6.
[20] In this case, the Board gave no reasons for its permanent unfitness finding, and neither the record nor the live issues at the hearing disclose why that finding was made. The only evidence of “permanent” unfitness was a bald opinion offered by Dr. Mokhber that Mr. Clayton was likely permanently unfit. This conclusion arguably flew in the face of her own testimony, as understood by the Board, that “Mr. Clayton’s fitness to stand trial has fluctuated during this past reporting year.” This finding is also challenged by other evidence, including Dr. Prakash’s conclusion offered at the September 2023 initial hearing that Mr. Clayton was fit at that time, and by an assessment from August 2023 summarized in the Hospital Report which strongly suggests that he was fit at that time, as well. None of these difficulties with the conclusion are addressed in the reasons, leaving the question of why that decision was made unanswered. Nor did the Board explain how it pivoted to addressing permanent unfitness given its stance, as explained by the Chairperson during the hearing, that it was not addressing “will he be fit tomorrow”.
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[26] I do agree with the Crown, however, that in this case the Board’s failure to give sufficient reasons for the permanency component of its “permanent unfitness” finding does not provide a basis for interfering with the Board’s disposition. Still, the Board should not have made the finding of permanent unfitness without explanation. Indeed, it arguably should not have made that finding at all, given that there is good reason to doubt its justifiability on this record. . Manrique (Re)
In Manrique (Re) (Ont CA, 2024) the Ontario Court of Appeal allows an NCR appeal, here remitting the case back to the ORB before a new panel.
The court finds 'inadequate reasons' for the ORB's decision, here on the issue of the 'significant threat' standard:[9] However, while we recognize that the Board set out the proper test for establishing a significant threat to public safety, the Board’s reasons were insufficient to explain how it reached the conclusion that the appellant meets that standard. As noted by the Board, this court has emphasized that the significant threat standard is an onerous one. In our view, the Board’s assertion that there would be “a predictable decline in [the appellant’s] mental status leading to decompensation and a heightened risk to public safety” does not explain how the appellant meets the significant threat standard. Further, the Board’s statements about the treating psychiatrist not being able to guarantee post-discharge forensic support and its reference to the “ideal scenario” of non-forensic support being “adequately in place” suggest the Board may have been focused on minimizing any risk created through granting the appellant an absolute discharge rather than properly assessing whether he met the significant threat threshold. . R. v. Ivins
In R. v. Ivins (Ont CA, 2024) the Ontario Court of Appeal allows an inadequate reasons appeal against the trial judge in an NCR case:[6] We accept the Crown’s concession and allow the appeal on the basis that the trial judge’s reasons were wholly inadequate. In these circumstances, reasons for finding an accused person NCRMD must go beyond merely agreeing to a joint proposal. At a minimum, a trial judge is required to articulate the test under s. 16 of the Criminal Code and explain why the evidence before the court justified the NCRMD verdict: R. v. Laming, 2022 ONCA 370, 413 C.C.C. (3d) 409, at paras. 63-64; R. v. Capano, 2014 ONCA 599, 314 C.C.C. (3d) 135, at paras. 45-52. The appellant was entitled to know in more detail why he was found NCRMD.
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