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Restriction of Liberty Hearing
Published in the December 2010 issue of Litigation Notes - View Article
The Court of Appeal for Ontario considers the standards that should be applied by the Ontario Review Board in a restriction of liberty hearing.
The Court of Appeal for Ontario recently considered issues arising from a restriction of liberty hearing held pursuant to section 672.81(2.1) of the Criminal Code.
The appellant is a 32-year old man who was found not criminally responsible on account of mental disorder in 2004 in relation to charges of assault with a weapon and sexual assault involving family members. His mental disorder appears to be linked to his use of illicit drugs.
The appellant was treated in hospital with anti-psychotic medication and his condition improved. At one point, he discontinued the medication and became “disorganized, somewhat withdrawn and agitated”. Treatment was resumed and the appellant improved to the point where in 2006, he was released into 24-hour supervised community accommodation, as permitted by his disposition from the Ontario Review Board. In 2007, he was again re-admitted to hospital when he tested positive for cannabis.
In January of 2008, he moved into his own approved apartment and continued to take medication by way of injection administered at a clinic run by the Centre for Addiction and Mental Health (CAMH). In April of 2009, he discontinued his medication, citing concerns about the death of a friend at the hospital and the possibility that the death was related to the friend’s medication. However, he agreed to continue attending the clinic five days per week so that his mental status could be monitored and eventually, the reporting requirement was reduced to three times weekly.
In August of 2009, the Ontario Review Board held its annual review and found that the appellant had been “symptom free and had not acted out in any manner” and that he appeared to “be on a positive trajectory since stopping his medications”. He was permitted to continue residing in the community but his review was shortened from twelve months to six months.
In October of 2009, the appellant began to show signs of mental deterioration. He began making sexually inappropriate remarks, refused a urine sample and was perspiring heavily, which can be an indication of illicit drug use.
On November 11, 2009, the appellant reported to the clinic several hours late and was readmitted for observation. He tested positive for both cocaine and cannabis. He was uncharacteristically rude to staff and was observed to be “responding to internal stimuli”. CAMH requested a hearing from the Ontario Review Board as is required when significant restrictions are placed on the liberty of the accused. The hearing was held on January 6, 2010. The appellant’s out-patient psychiatrist testified. She stated that the appellant’s primary diagnosis was psychosis brought on by the use of cocaine and cannabis but a primary psychotic disorder, such as schizoaffective disorder, could not be ruled out.
The Board concluded that the decision to bring the accused back into hospital was sound and was in the best interests of the accused and of the public. It also concluded that the appellant continued to be a significant threat to the safety of the public and no alteration in the terms of his disposition was warranted.
The Board’s decision was appealed to the Court of Appeal for Ontario. One issue on the appeal related to whether the restriction of liberty hearing should relate not only to the patient’s circumstances at the time the restrictions decision was made but during the ensuing period up to the time of the restrictions review. The Court considered that it should be the latter, stating: “It would make no sense for the Board to confine its consideration to the moment in time of the imposition of the restriction without considering the ongoing nature and the effect of the decision on the patient’s liberty to the date of the review. The purpose of the restrictions review is to provide a mechanism to monitor significant changes in the patient’s liberty and to ensure that liberty is infringed only to the extent necessary to protect public safety in the time-frame between the patient’s annual dispositions. A point-in-time restriction could create a gap in the Board’s overview of the patient’s disposition and hamper the Board’s effectiveness in achieving the overall objectives of the legislation.”
The appellant also argued that the applicable standard of the Board’s review should be whether the restrictions imposed by the hospital were the least onerous and least restrictive in the circumstances. The hospital argued that the decision should be based on “prudent risk management”, while the Crown argued that the standard should be whether the decision was “appropriate” in the circumstances. On this point, the Court of Appeal concluded that the “prudent risk management” standard does not appear in the legislative scheme and would “place undue emphasis on the goal of public safety, without properly balancing the other objective of treating the NCR patient fairly taking into consideration the patient’s liberty interests”. It also concluded that the term “appropriate” in and of itself was too broad and that an “appropriate” disposition is, in any event, one which takes into consideration the “least onerous and least restrictive” criterion.
The appellant also argued that he could not be found to be a “significant threat” because his psychiatrist had testified at the hearing that she would not have found him certifiable under the Mental Health Act when he was re-admitted to hospital. The argument was that if the appellant did not pose a “likelihood of serious bodily harm to another” within the meaning of section 20 of the Mental Health Act, he could not pose a significant threat to the safety of the public. On this point, the Court of Appeal found that the appellant’s argument was not supported by the Board’s evidentiary findings. The transcript made it clear that his psychiatrist had stated simply that the Mental Health Act route was not viable at the time the restriction was imposed, due to lack of contact with the appellant, any explanation for his conduct, and the absence of any evidence that he was again consuming illicit drugs.
The appeal was dismissed.
M.L.C. v. Ontario (Review Board),
2010 ONCA 843 (CanLII)