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Appeal Court Dicta

Criminal - Ontario Review Board (ORB) ('NCR')

. Woods (Re)

In Woods (Re) (Ont CA, 2023) the Court of Appeal considered factors to be assessed when the ORB makes a detention order, here in an NCR context:
[8] It was not unreasonable in these circumstances to conclude that her treatment would be enhanced by a detention order. As this court noted in Re Davies, 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 31-32:
The mere fact of convenience and expediency is not enough to justify a detention order. However, in determining that a detention order was the appropriate disposition in this case, the Board reasonably accepted Dr. Alatishe’s evidence that the appellant’s risk profile had increased. The need for the hospital to have the flexibility provided by a detention order was justified by the appellant’s actions during the reporting year: her substance use leading to her pronounced failure of insight, elopement, and decompensation.

The Board is an expert tribunal and is well aware of the mechanisms under the Mental Health Act, and its disposition is entitled to deference. In the circumstances, the Board’s disposition appears reasonable.
. Smith (Re)

In Smith (Re) (Ont CA, 2023) the Court of Appeal sets out the SOR for NCR decisions from the Ontario Review Board:
[10] This court can allow an appeal against a Board’s disposition only where the decision is: a) unreasonable or cannot be supported by the evidence; b) based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or c) where there was a miscarriage of justice. When, as here, the review is for reasonableness, we must consider whether the disposition “falls within the range of acceptable outcomes”. A reasonable decision is one where the Board’s reasoning process and the outcome 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; Abdulle (Re), 2021 ONCA 524.

[11] Careful attention must be paid to the Board’s specialized knowledge and expertise, which does not change depending on which members constitute the majority, or minority, when there is a dissenting opinion. That is to say, even when a minority opinion comes from those panel members with psychiatric training, the deferential standard applies to the majority decision without regard to the qualifications or expertise of individual members: Capano (Re), 2012 ONCA 172, at para. 16.

[12] Our task is to assess the decision’s reasonableness, not to “conduct a de novo analysis or seek to determine the correct solution to the problem”: Vavilov, at para. 83. We must avoid making our own judgment on the question of significant threat, and to then use that as the benchmark for assessing the reasonableness of the Board’s decision. The Board’s decision is owed deference so long as its reasons “can bear even a somewhat probing examination”: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33; Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124; Kaminski (Re), 2021 ONCA 220.
. Mitchell (Re)

In Mitchell (Re) (Ont CA, 2023) the Court of Appeal considered the Ontario Review Board's Gladue (indigenous defendant) treatment:
(2) The Board’s consideration of Gladue principles was inadequate

[18] Although we conclude that the Board’s decision to detain the appellant in a maximum security setting is reasonable, we note that the Board’s consideration of the Gladue Report, and Gladue principles generally, was inadequate.

[19] The Board referred to the Gladue Report several times in its reasons and acknowledged that the appellant “had an unfortunate childhood”. The Board wrote that it had reviewed “attempts by the hospital social worker to facilitate support for [the appellant] from local native services that had been to no avail since [the appellant] had declined involvement in this regard”; and later that “[the appellant] was primarily raised by his mother, who is not Indigenous, and had very little contact with his father.”

[20] The Board’s reasons do not engage with enough detail on this point to discern what relevance the appellant’s indigeneity, family history (including residential schools), and the appellant’s difficult upbringing, had for the Board. Further, while it is not clear why the Board thought it noteworthy that the appellant’s mother is not Indigenous and that he has had little contact with his father, if it was to attenuate the need to consider Gladue principles, the Board would have fell into error: see R. v. Kehoe, 2023 BCCA 2, at paras. 52-57. Gladue principles seek to address precisely the kind of disconnection and related lack of positive social structures found in this case.

[21] As in sentencing, taking into consideration Gladue principles does not mandate a different result or favoured treatment for Indigenous people. What is required is a “different method of analysis”, which guards against the discrimination that “as experience demonstrates, will occur where decision-makers fail to advert to the specific and particular problems faced by [Indigenous] Canadians in our system of justice”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59; United States of America v. Leonard, 2012 ONCA 622, 112 O.R. (3d) 496, at para. 63; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at paras. 58-59.

[22] In the context of the Board’s process, this different method of analysis requires adjudicators to pay particular attention to the unique circumstances of Indigenous people detained in psychiatric facilities, and how those circumstances affect the four statutory criteria to be considered by the Board under the Criminal Code, R.S.C., 1985, c. C-46.

[23] Pursuant to s. 672.54 the Board is to consider the following four criteria when making a disposition: i) the need to protect the public from dangerous persons, ii) the mental condition of the accused, iii) the reintegration of the accused into society, and iv) the other needs of the accused. In Sim (Re) (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183, at para. 16, this court confirmed that Gladue principles apply to proceedings before the ORB, though the court raised some question with respect to the application of Gladue principles to the first and second criteria (i.e., public protection and mental condition of accused). In Faichney (Re), 2022 ONCA 300, at para. 24, Paciocco J.A. clarified that Sim, when read in context, did not suggest that Gladue principles are irrelevant to the first and second statutory criteria. Rather, while Gladue principles may “more commonly inform statutory factors three and four” (reintegration into society and other needs of the accused), they may be relevant to all four factors and the Board should rely on as full a record as possible.

[24] All of that said, this court’s task is to consider whether the Board’s disposition was reasonable. While improper or inadequate consideration of Gladue may result in an unreasonable decision, we are satisfied that the Board’s disposition here remained reasonable.
. Le Feuvre (Re)

In Le Feuvre (Re) (Ont CA, 2023) the Court of Appeal considered an appeal from an Ontario Review Board 'disposition' [CCC s.672.54], here that the appellant was "a significant threat to the safety of the public":
[7] The Board unanimously concluded that the appellant poses a significant threat to the safety of the public as defined in s. 672.5401 of the Criminal Code. The Board’s disposition continued the conditional discharge, subject to a modification of the specified street address to allow him to more generally reside at a LOFT residence (the “Disposition”).


[27] The appellant submits the Board erred in law and in fact in finding the significant threat threshold was met. The alleged legal error arises from the last words in the Impugned Sentence, namely, “conduct that is criminal in nature”. The appellant says the absence of the word “serious” shows that the Board did not use the correct legal standard relating to serious criminal conduct.

[28] We do not accept this submission. The Impugned Sentence must be read as a whole, within the balance of the paragraph, the entirety of the Board’s reasons, and the record. From the Board reasons, it is clear that the Board understood the legal test. In the sentence preceding the Impugned Sentence, the Board states that it is satisfied that “absent any disposition, there is more than a miniscule risk of grave harm and there is not just a high risk of trivial harm”, the legal test established in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 62.


[31] We also reject the appellant’s submission that the Board erred in fact in finding that the significant threat threshold was met. As an expert tribunal, the Board’s determination that the significant threat threshold is met is owed significant deference on appeal: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 37. The Board used its expert judgment, applied the correct legal principles, made unimpeachable findings of fact, and made no error in its application of the law to those factual findings.
. Munezero (Re)

In Munezero (Re) (Ont CA, 2023) the Court of Appeal considered an NCR ('not criminally responsible') appeal from the Ontario Review Board:
[5] The appellant has been under the jurisdiction of the Board since 2016, when she was found not criminally responsible on account of mental disorder (“NCRMD”) on a charge of arson – disregard for human life. She was subsequently discharged with conditions.


[11] Considerable deference is owed to the Board’s determination on whether an NCRMD accused is a “significant threat” to the safety of the public: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 21; Abdulle (Re), 2020 ONCA 698, at para. 15. This court should not interfere with a Board’s decision unless it concludes that “the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination”: R. v. Owen, 2003 SCC 33, [2003] S.C.R. 779, at para. 33.


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