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Criminal - NCR - Appeals (2). Small (Re)
In Small (Re) (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal NCR ORB appeal, here brought against a "detention disposition and ... restriction of liberty decision", where the effect on the appellant's housing was central.
Here the court considers the appellate SOR for NCR appeals:[15] Section 672.78(1) of the Criminal Code sets out the standard of review to be applied by this court on an appeal from a disposition of the Board. An appeal against a disposition may be allowed where the court is of the opinion that: (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: Sim (Re), 2020 ONCA 563, at para. 66.
[16] The Board’s reasons must be able to withstand a “somewhat probing examination” to determine whether the decision is justifiable, transparent, and intelligible: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 33. Deference is owed if the decision is internally coherent, demonstrates a rational chain of analysis and 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. 563, at para. 85. . Armstrong v. Ontario Review Board [appellate remedies]
In Armstrong v. Ontario Review Board (Div Ct, 2026) the Divisional Court dismissed a JR on R2.1 frivolous and vexatious grounds, here where the underlying issues were Ontario Review Board decisions and where the applicant had also filed a CCC s.672.72 ['Grounds for appeal'] appeal.
The court considered the respective review remedies available where the applicant argued that "the two proceedings seek materially different relief":[10] The Applicant provides no authority for the proposition that relief available in the Divisional Court is not available in the Court of Appeal. This proposition is contrary to the plain wording of s. 672.72(1) of the Criminal Code, which provides for a comprehensive right of appeal on any question of law, fact or mixed fact and law. Section 672.72(1) provides:672.72 (1) Any party may appeal against a disposition made by a court or a Review Board, or a placement decision made by a Review Board, to the court of appeal of the province where the disposition or placement decision was made on any ground of appeal that raises a question of law or fact alone or of mixed law and fact. [11] The Court of Appeal is able to provide any relief, including under s. 52(1) of the Constitution Act, 1982, that would be available from the Divisional Court on an Application for Judicial Review. A statutory appeal under s. 672.72(1) is not, as the applicant suggests, a secondary alternative to judicial review; rather, it provides the primary and proper route for parties to challenge disposition decisions of the ORB.
[12] With respect to urgency, s. 672.72(3) provides that the appeal to the Court of Appeal shall be heard expeditiously and proceed “as soon as practicable”:Appeal to be heard expeditiously
(3) The court of appeal shall hear an appeal against a disposition or placement decision in or out of the regular sessions of the court, as soon as practicable after the day on which the notice of appeal is given, within any period that may be fixed by the court of appeal, a judge of the court of appeal, or the rules of that court. [13] On application by any party, a judge of the Court of Appeal may “give any directions that the judge considers necessary for expediting the appeal”.
[14] The Court of Appeal also has broad discretion to grant interlocutory orders suspending the Review Board’s placement or disposition pending the hearing of the appeal: Criminal Code, ss. 672.75, 672.76. The Applicant did bring a s. 672.76 suspension application that was heard by the Court of Appeal on June 19, 2026. On June 25, 2026, Justice Dawe of that Court dismissed the application for written reasons provided. The Applicant cannot ask the Divisional Court to provide relief that was already refused by the Court of Appeal.
[15] There is no reason to believe that an application for judicial review in the Divisional Court can be heard more expeditiously than an appeal to the Court of Appeal. Both the appeal and application must be perfected before they can be heard, and there is no basis to believe that an application can be perfected in less time than an appeal.
[16] Moreover, the Court of Appeal has already scheduled the appeal for October 26, 2026, and sent a Notice of Hearing to the parties on June 16, 2026.
[17] Commencing an application for judicial review that is duplicative of the appeal brought in the Court of Appeal is an abuse of process: Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, at para. 38. Having regard to the comprehensive appeal rights set out in s. 672.72 of the Criminal Code, I am satisfied that the Application for Judicial Review must be dismissed in the interests of justice.
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