Perpetrators of crime can be found to be not criminally responsible (NCR) when their criminal behaviour is due to a diagnosed mental illness. The crime committed becomes known as the “index offence”. They are then managed by the Ontario Review Board (ORB). Their release is determined by the ORB based upon an assessment of whether the individual constitutes a “significant threat to the safety of the public”. The options for disposition include an absolute discharge, a discharge subject to conditions, or continued confinement in a hospital. Throughout the process, the offender is to be treated with dignity and afforded the maximum liberties compatible with the goals of public protection and fairness to the NCR accused found in Part. XX.1 of the Criminal Code (the “Code“).

Section 672.54(a) of the Code directs that where an NCR accused is “not a significant threat to the safety of the public” he or she must be discharged absolutely.  Section 672.5401 defines a “significant threat to the safety of the public” as “a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent”.

Assessing “Significant Threat”

The Code does not create a presumption of dangerousness. It does not impose a burden on the NCR individual seeking release to prove a lack of dangerousness.  The court or Review Board must make a disposition “that is the least onerous and least restrictive to the accused”.  It becomes clear then that unless it makes a positive finding on the evidence that the NCR accused poses a significant threat to the safety of the public, the court or Review Board must order an absolute discharge.

The authority for these statements of the law came from the Supreme Court of Canada (SCC) in Winko v. British Columbia (Forensic Psychiatric Institute). The steps and process were set out by the SCC in some detail as follows:

  1. The review must consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused.  The court or Review Board is required in each case to answer the question: does the evidence disclose that the NCR accused is a “significant threat to the safety of the public”? 
  2.  A “significant threat to the safety of the public” means a real risk of physical or psychological harm to members of the public that is serious in the sense of going beyond the merely trivial or annoying.  The conduct giving rise to the harm must be criminal in nature. 
  3. Restrictions on liberty can only be justified if, at the time of the hearing, the evidence before the court or Review Board shows that the NCR accused actually constitutes such a threat.   The court or Review Board cannot avoid coming to a decision on this issue by stating, for example, that it is uncertain or cannot decide whether the NCR accused poses a significant threat to the safety of the public.  If it cannot come to a decision with any certainty, then it has not found that the NCR accused poses a significant threat to the safety of the public.
  4. The proceeding before the court or Review Board is not adversarial.  If the parties do not present sufficient information, it is up to the court or Review Board to seek out the evidence it requires to make its decision. 
  5. The court or Review Board may have recourse to a broad range of evidence as it seeks to determine whether the NCR accused poses a significant threat to the safety of the public.  Such evidence may include the past and expected course of the NCR accused’s treatment, if any, the present state of the NCR accused’s medical condition, the NCR accused’s own plans for the future, the support services existing for the NCR accused in the community, and the assessments provided by experts who have examined the NCR accused.  This list is not exhaustive.
  6. A past offence committed while the NCR accused suffered from a mental illness is not, by itself, evidence that the NCR accused continues to pose a significant risk to the safety of the public. However, the fact that the NCR accused committed a criminal act in the past may be considered together with other circumstances where it is relevant to identifying a pattern of behaviour, and hence to the issue of whether the NCR accused presents a significant threat to public safety.  The court or Review Board must at all times consider the circumstances of the individual NCR accused before it.
  7. If the court or Review Board concludes that the NCR accused is not a significant threat to the safety of the public, it must order an absolute discharge.
  8. If the court or Review Board concludes that the NCR accused is a significant threat to the safety of the public, it has two alternatives.  It may order that the NCR accused be discharged subject to the conditions the court or Review Board considers necessary, or it may direct that the NCR accused be detained in custody in a hospital, again subject to appropriate conditions. 
  9. When deciding whether to make an order for a conditional discharge or for detention in a hospital, the court or Review Board must again consider the need to protect the public from dangerous persons, the mental condition of the NCR accused, the reintegration of the NCR accused into society, and the other needs of the NCR accused, and make the order that is the least onerous and least restrictive to the NCR accused.

Appealing a Decision of the Ontario Review Board

An appeal from the decision of the ORB is made under Part XX.1 of the Code to the Ontario Court of Appeal (ONCA). The appeals are most often made by the NCR person seeking a release. The standard of the review on such an appeal is found in s. 672.78(1) of the Code. An ORB decision is to be accorded deference, but the ONCA has the power to set aside the decision if it is unreasonable, is not supported by the evidence, it is based on a wrong decision on a question of law, or there was a miscarriage of justice. The reasonableness of the ORB decision must be evaluated by considering the reasons in the context in which the decision was made. As stated by the ONCA in Re Wall:

The reasons for the Board’s decision and the substantive decision reached by the Board must be considered together in determining whether an acceptable and defensible outcome has been reached, keeping in mind the need to protect the liberty of the NCR accused as much as possible, while also protecting society.

Further, as the ONCA stated in Re Carrick

[T]he “significant threat” standard is an onerous one. An NCR accused is not to be detained on the basis of mere speculation. The Board must be satisfied as to both the existence and gravity of the risk of physical or psychological harm posed by the appellant in order to deny him an absolute discharge.

Input from a lawyer can assist health professionals in giving evidence at assessment or capacity hearings. At Wise Health Law, we also have an established network of criminal lawyers with whom we work. For the convenience of our clients, we have offices in both Toronto and Oakville, Ontario, and are easily accessible. Contact us online, or at 416-915-4234 for a consultation.

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