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Criminal - NCR - General (2). Tobin (Re)
In Tobin (Re) (Ont CA, 2025) the Ontario Court of Appeal allowed an NCR appeal, here wrt the hospital seeking community housing for the appellant:Issue 2: The Board erred in failing to impose a condition in its disposition requiring the hospital to exercise due diligence in pursuing community housing for Mr. Tobin
[14] Mr. Tobin submits that the Board erred in not including an order in the disposition requiring the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin. We agree.
[15] In its reasons, the Board admonished the hospital for letting Mr. Tobin’s housing at Emmaus Place lapse without a plan for suitable permanent housing. The Board expressed its concerns as follows:Dr. Nagari testified that [Mr. Tobin’s] condition settled quickly once he was readmitted, and Mr. Tobin could have been transitioned to discharge planning to the community after 2 weeks or so, but for the fact that there is no suitable housing available for him at this time. He currently exercises indirectly supervised passes into the community without issue. The hospital now has him on 4 wait-lists for permanent housing. The panel finds it very concerning that arrangements were not made for Mr. Tobin to transition to permanent housing from Emmaus Place long before his tenancy at Emmaus Place was terminated. The hospital was aware that Emmaus Place is a transitional housing facility, intended to house individuals for approximately 2 years while they are being transitioned to permanent housing. The hospital was aware that his tenancy was extended by Emmaus Place a few years ago. The hospital was also aware that there is a waiting list of many months to years to secure the supervised permanent housing. It was incumbent on the hospital to understand Mr. Tobin’s tenancy situation with Emmaus Place, and to take the necessary steps to have Mr. Tobin placed on a waiting list in a timely manner to prevent the current situation where Mr. Tobin is hospitalized only to await the availability of suitable housing. [Emphasis added.] [16] The Board went on to state that a detention order was necessary as a result of this situation because Mr. Tobin cannot live independently in the community. The Board further urged “the hospital to exercise all due diligence in pursuing community housing for Mr. Tobin”. However, the Board’s disposition, which sets out all the terms of its order, does not include a direction to the hospital requiring that it exercise all due diligence in pursuing housing for Mr. Tobin. As it stands, this is merely a strong suggestion in the reasons.
[17] In Re Le Feuvre, 2020 ONCA 822, at para. 12, this court found that “it was an error for the Board to issue a disposition that fails to reflect its reasons.” We find that the Board made a similar error in this case. The fact that Mr. Tobin is obligated to reside at the hospital when his current condition would allow him to live in some form of supervised community housing is at least in part due to the hospital’s error. The hospital’s obligation to remedy this situation should be reflected in the Board’s disposition rather than simply a strong suggestion to act with due diligence in the reasons. Accordingly, we would amend the disposition to include the following term: “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”.
[18] This term is broad enough to give the hospital the necessary flexibility to manage the priority needs of other patients under its care. It is also broad enough to ensure the hospital takes necessary steps to determine Mr. Tobin’s needs and the available options to meet them. However, making this a term of the order ensures that the hospital will treat Mr. Tobin’s need for housing as an obligation rather than a suggestion.
Disposition
[19] The appeal is allowed to the limited extent that the disposition of the Board is amended to add a term that “The hospital is to exercise all due diligence in pursuing community housing for Mr. Tobin”. The appeal is otherwise dismissed. . Joya (Re)
In Joya (Re) (Ont CA, 2025) the Ontario Court of Appeal dismissed an ORB NCR appeal, here setting out some of the applicable statutory regime:[9] The issues for determination are whether the Board’s decision was unreasonable and whether there was a breach of the appellant’s Charter rights.
[10] Section 672.78 of the Criminal Code states that a decision of the Board may be set aside only if it is unreasonable or unsupported by the evidence, if it is based on an error of law, or if there was a miscarriage of justice.
[11] Section 672.54(a) of the Criminal Code requires the Board to consider whether the accused presents a “significant threat to the safety of the public”. The Board must determine the least restrictive disposition that will protect the public, taking into account the accused’s mental condition. To deny an accused an absolute discharge, there must be evidence that they pose a foreseeable and substantial risk of serious harm to the public if discharged absolutely, and that risk cannot be speculative: Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 57, 68; Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209, at paras. 16-17.
[12] Given the Board’s expertise, an appellate court should not easily overturn its assessment of risk: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 37; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 95. . Joya (Re)
In Joya (Re) (Ont CA, 2025) the Ontario Court of Appeal considered an NCR appellant's argument that the lack of psychiatric
services was prejudicial to his ORB disposition.Note: The appellant's case was unsuccessful on this argument, due to the court disagreeing with him that he was so prejudiced on the tribunal's fact-finding (a situation that I would not usually extract as it reflects no useful legal points). However, I'm using the case to open a new related sub-topic as the 'inadequacy of medical services' has become a serious problem, particularly in cases of social benefit entitlement where medical evidence is required (eg. ODSP). The court continues to state:(2) The Charter argument
[18] The appellant argues that his ss. 7, 9, and 15 Charter rights were infringed because he was denied an absolute discharge due to waitlists and a lack of resources that made him unable to obtain acceptance into a non-forensic mental health treatment program. The Board declined to make this order for two reasons.
[19] First, the appellant’s complaint was about the adequacy of psychiatric services if he was given an absolute discharge, but the Board loses its jurisdiction once an absolute discharge is ordered. It was therefore doubtful whether it had jurisdiction to make the order requested.
[20] Second, and in any event, the Board concluded that an absolute discharge was inappropriate not because of the lack of non-forensic care, but because of its conclusion that the appellant continues to present a significant threat to public safety. The Board concluded that the appellant needed to remain under the jurisdiction of the hospital for his illness to be monitored, and we see no error in this conclusion. While there was no certainty that the appellant would be able to successfully access treatment outside of the forensic care he received in the hospital, there was evidence that the hospital would assist the appellant in finding non-forensic care and that he would not be left without treatment. The Charter issue that was raised therefore did not arise.
[21] The Board was therefore entitled to deny the Charter relief that the appellant sought. . Ontario (Attorney General) v. G. [CCC Part XX.1]
In Ontario (Attorney General) v. G. (SCC, 2020) the Supreme Court of Canada summarizes aspects of CCC Part XX.1 ['Mental Disorder'], which applies to those who "are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 ...":V. Criminal Code, Part XX.1
[33] Part XX.1 of the Criminal Code sets out the “assessment‑treatment system” that applies to persons who are exempt from criminal responsibility and receive a verdict of NCRMD by virtue of ss. 16(1) and 672.34 (Winko, at para. 16). Part XX.1 provides for the establishment of provincial review boards, with the responsibility to hold hearings to determine whether to grant persons found NCRMD conditional or absolute discharges under s. 672.54.[1]
[34] In Winko, at para. 20, this Court described the purposes of Part XX.1, a scheme founded on the “twin goals of fair treatment [for those found NCRMD] and public safety”:... the purpose of Part XX.1 is to replace the common law regime for the treatment of those who offend while mentally ill with a new approach emphasizing individualized assessment and the provision of opportunities for appropriate treatment. . . . [The NCRMD finding] triggers a balanced assessment of the offender’s possible dangerousness and of what treatment‑associated measures are required to offset it. Throughout the process the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1’s goals of public protection and fairness to the NCR accused. [para. 43] [35] Following a disposition or review hearing, a review board may order an absolute discharge, a conditional discharge, or a hospital detention (s. 672.54). In arriving at a disposition that is “necessary and appropriate in the circumstances”, review boards must take into account the safety of the public, along with the mental condition of the person found NCRMD, their reintegration into society, and their other needs (s. 672.54). Conditions relating to treatment may only be included in a disposition if the accused consents to the condition (s. 672.55).
[36] In general, disposition hearings are held within 45 days of an NCRMD verdict, and disposition review hearings are held no more than 12 months after the most recent disposition or disposition review hearing (ss. 672.47 and 672.81).
[37] The review board must absolutely discharge any person found NCRMD unless it concludes, based on the evidence presented at the hearing, that the person poses a “significant risk of committing a serious criminal offence” (Winko, at para. 57; see also s. 672.54(a)). If the review board cannot make the required positive finding of significant risk, jurisdiction under Part XX.1 falls away — the criminal law cannot legitimately restrain that individual’s liberty any further (Winko, at para. 33).
[38] This constitutional imperative, coupled with the individualized review that the review board must undertake at least annually in every person’s case, illustrate Part XX.1’s rejection of “invidious” stereotypical notions that persons with mental illnesses are inherently dangerous (Winko, at paras. 35, 47 and 89). Risk cannot be assumed; it must be positively found. And it must be found based on evidence considered within an individualized assessment of a person’s circumstances.
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