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Criminal - NCR - 'Restriction of Liberty'. Jakaj (Re)
In Jakaj (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an ORB decision that the appellant "continues to pose a significant threat to the safety of the public", and was ineligible for a cannabis exemption:[1] The appellant, Robert Jakaj, was found not criminally responsible on June 18, 2015, on a charge of arson. On October 4, 2023, the Ontario Review Board (the “Board”) found that Mr. Jakaj continues to pose a significant threat to the safety of the public. The Board ordered Mr. Jakaj’s continued detention at the Forensic Psychiatry Program of St. Joseph’s Healthcare Hamilton with privileges, which include living in the community in accommodation approved by the person in charge. As part of the disposition, the Board continued a restriction precluding Mr. Jakaj from the non-medical use of any alcohol or drugs, including cannabis.
[2] The only issue on appeal is whether the Board erred in refusing to grant Mr. Jakaj a cannabis exemption. We are satisfied that the Board’s decision is reasonable and that the appeal should be dismissed.
[3] Mr. Jakaj’s current diagnosis is schizophrenia, cannabis use disorder and cocaine use disorder. Both the cannabis and cocaine use disorders are described as “in remission, in a controlled environment”.
[4] Mr. Jakaj has a history of cocaine use, including use of crack cocaine. He believes that using cannabis would reduce his use of cocaine, and that this would be a helpful harm reduction strategy. He suggests that, because cannabis is legal and less harmful than cocaine, allowing him to use cannabis would reduce his risk of losing privileges and assist in his rehabilitation and reintegration in the community.
[5] Mr. Jakaj does not agree with the Board’s conclusion that a cannabis restriction remains necessary. He argues that the evidentiary record before the Board did not support a finding that the appellant’s cannabis use is linked to an increased risk to public safety.
[6] This court will only interfere with a decision of the Board if the decision was unreasonable, if the Board made an error of law or if there was a miscarriage of justice: Criminal Code, R.S.C., 1985, c. C-46, s. 672.78(1); R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at para. 31. The test for reasonableness is whether the Board’s risk assessment and disposition order are supported by reasons that can bear an even “somewhat probing” examination: Owen, at para. 33. The court must evaluate reasonableness by considering the reasons given by the Board and the context in which the decision was made to determine whether an acceptable and defensible outcome has been reached: Wall (Re), 2017 ONCA 713, 417 D.L.R. (4th) 124, at para. 22.
[7] We are satisfied that the Board’s conclusion is reasonable and supported by a “somewhat probing” review of the record.
[8] It is worth noting that Mr. Jakaj does not dispute the finding that he continues to pose a significant risk to the public, which the Board described as follows:The Board therefore accepts that absent an ORB Disposition, Mr. Jakaj would likely become non-compliant with prescribed medications which would lead to decompensation, use of substances and the re-emergence of behaviours similar to those seen at the time of the index offences. We are satisfied that absent an ORB Disposition, it is likely that Mr. Jakaj will cause serious physical or psychological harm to members of the public and such conduct will likely be criminal in nature. [Emphasis added.] [9] When addressing the restrictions that should be imposed on Mr. Jakaj, the Board provided several reasons for maintaining the restriction on cannabis.
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[13] Mr. Jakaj’s circumstances are different from those in Re Davies, 2022 ONCA 716. In that case, this court found that the Board had failed to distinguish between the impact of different substances and that there was no evidence before the Board that allowing Ms. Davies to use cannabis would pose any risk of harm to the public. In contrast, in this case, the Board identified a link between cannabis use and the index offence, identified a prior connection between Mr. Jakaj’s use of cannabis and his use of cocaine, and pointed out that lifting the restriction on cannabis had previously been ineffective in curbing his use of cocaine. . McLeod (Re)
In McLeod (Re) (Ont CA, 2024) the Ontario Court of Appeal canvasses some principles of the criminal NCR scheme:[9] The scheme of the legislation requires “emphasis on providing opportunities to receive appropriate treatment”: Winko v. British Columbia (Forensic Psychiatric Institute), [1992] 2 S.C.R. 625, at para. 39. An NCR accused is to receive dispositions and conditions that are “the least onerous and least restrictive” ones compatible with their situation: Winko, at paras. 42-43; Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, at paras. 3, 44-45, 51-52 (“Tulikorpi”). It is presumed until proven otherwise that North Bay will act consistently with the legislation and will therefore do what is possible to provide Mr. McLeod the indirect privileges he once had when that is compatible with his situation. . Heinekamp (Re)
In Heinekamp (Re) (Ont CA, 2024) the Court of Appeal notes a psychiatric hospital's NCR CCC authority to "readmit the appellant if his situation deteriorated" and the resultant 'Restriction of Liberty' hearing that is required:[25] As noted in the Board’s reasons for its January 2023 disposition, the person in charge at the Hospital retained the authority to readmit the appellant if his situation deteriorated. Pursuant to s. 672.81(2.1) [SS: I suspect this cite should be to CCC 672.56(2), the provision actually cited is the hearing provision] of the Code, however, the Hospital was required to give notice to the Board of any increase in restrictions on the appellant’s liberty so that an ROL hearing could be held “as soon as practicable”. The purpose of an ROL hearing “is to act as a final liberty safeguard, allowing for a second-look at those hospital decisions that have such serious ramifications for the liberty of the NCR accused, that they should be examined ahead of the next yearly review”: Campbell (Re), 2018 ONCA 140, 139 O.R. (3d) 401 at para. 64.
[26] At an ROL hearing, a person whose liberty has been restricted has the right to be represented by counsel, submit evidence, make submissions, and enjoy other procedural protections set out in ss. 672.5 to 672.53 of the Code. These procedural guarantees are undermined if, prior to the hearing, the Hospital, unilaterally and without notice, takes steps that make the person’s reduced liberty a foregone conclusion from a practical perspective.
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