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ORB Wrong for Failing to Consider Conditional Discharge

Published in the August 2009 issue of Litigation Notes - View Article

The Ontario Court of Appeal has ruled that the Ontario Review Board placed undue emphasis on the risk of decompensation by the accused in deciding that a detention order was the least onerous and least restrictive option available.

In Ontario, when an accused is found not criminally responsible of a criminal offence, by reason of a mental disorder, the person becomes subject to the jurisdiction of the Ontario Review Board. Pursuant to Section 672.54 of the Criminal Code, the ORB must hold a hearing at least once a year, to decide whether or not the accused continues to pose a significant threat to the safety of the public. If not, the accused must be discharged absolutely. On the other hand, the accused continues to be a significant threat to the safety of the public, the ORB can either discharge the accused subject to appropriate conditions or order that the accused be detained in custody in a psychiatric hospital.

In making its decision, the ORB has to take into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused.

At a hearing held in October of 2008, the ORB ordered Mr. Lamanna detained at Whitby Mental Health Centre, with hospital and community privileges and with permission to live in the community in accommodation approved by the Person in Charge of the hospital. Mr. Lamanna appealed to the Ontario court of Appeal, arguing that the ORB had erred in failing to give meaningful consideration to whether or not it would be possible for him to receive a conditional discharge. The Court of Appeal agreed.

The Criminal Code provides that an order of the Review Board may be set aside where a) it is unreasonable or cannot be supported by the evidence; b) it is based on a wrong decision on a question of law; or c) there was a miscarriage of justice. The standard review on the first branch of the test is reasonableness, whereas on the second branch, which is concerned with a question of law, the standard is correctness. In this case, the Court concluded that the ORB’s decision was not reasonable.

The “least onerous and least restrictive” requirement is not freestanding and cannot be viewed in isolation from the other factors enumerated in section 672.54. A Review Board is required to consider at every step of section 672.54 the factors outlined in at section, without segregating the least onerous and least restrictive requirement for different or separate consideration.

In this case, the Review Board noted that Mr. Lamanna had been discharged to the community during the previous year but that the discharged had been quite short lived and that he was quite agitated and aggressive when he returned to the hospital. The ORB considered that a detention order was required because if he were to move back into the community within the next year but again required readmission to hospital, the hospital would be in a position to react and readmit him quickly, before he became violent and put the public at risk.

The Court of Appeal considered that the Board had grounded its reasons exclusively on its concerns for Mr. Lamanna’s possible decompensation but failed to take a number of factors into consideration in deciding why a detention order was the least onerous and least restrictive alternative available. Specifically, the Board did not refer to Mr. Lamanna’s willingness to agree to a condition specifying that he take medication if he were conditionally discharged. Section 672.91 of the Criminal Code allows for the arrest of a conditionally discharged NCR accused for the anticipated breach of a condition. The failure to take medication as ordered would be a breach of one of the ORB’s conditions and would justify a return to the hospital, even if there was no decompensation.

Furthermore, the ORB failed to take into account the provisions of the Mental Health Act which would permit him to be admitted to hospital in the event he were found to pose a danger to himself or others.

The Court of Appeal ordered the matter referred back to the Board for a re-hearing, in accordance with the Court’s Reasons.

R. v. Lamanna. 2009 ONCA 612 (CanLII)