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Criminal - NCR - 'Significant Threat to the Safety of the Public'. Manrique (Re)
In Manrique (Re) (Ont CA, 2024) the Ontario Court of Appeal allows an NCR appeal, here remitting the case back to the ORB before a new panel.
The court finds 'inadequate reasons' for the ORB's decision, here on the issue of the 'significant threat' standard:[9] However, while we recognize that the Board set out the proper test for establishing a significant threat to public safety, the Board’s reasons were insufficient to explain how it reached the conclusion that the appellant meets that standard. As noted by the Board, this court has emphasized that the significant threat standard is an onerous one. In our view, the Board’s assertion that there would be “a predictable decline in [the appellant’s] mental status leading to decompensation and a heightened risk to public safety” does not explain how the appellant meets the significant threat standard. Further, the Board’s statements about the treating psychiatrist not being able to guarantee post-discharge forensic support and its reference to the “ideal scenario” of non-forensic support being “adequately in place” suggest the Board may have been focused on minimizing any risk created through granting the appellant an absolute discharge rather than properly assessing whether he met the significant threat threshold. . Woods (Re)
In Woods (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an NCR appeal, here citing the lead case of Winko:[5] .... the appellant contends that the evidence before the Board did not reasonably support a finding of significant threat under the test set out in the leading case Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625.
[6] We do not accept this submission. The Board cited and explicitly applied Winko. The Board noted that a “significant threat” means “a risk of serious physical or psychological harm to members of the public” which is “not minimal or a mere annoyance”. It further explained that, as held in Winko, in this context a risk “must be real and objectively supportable ... .” . Alfredson (Re)
In Alfredson (Re) (Ont CA, 2024) the Ontario Court of Appeal dismiises an appeal from an Ontario Review Board (ORB), that found the appellant to be a 'significant threat to the safety of the public':[1] The appellant was found not criminally responsible (“NCR”) on March 24, 2011 of one count each of aggravated assault and possession of a weapon for a purpose dangerous to the public peace. On September 14, 2023, following the appellant’s annual hearing, the Ontario Review Board (the “Board”) found that the appellant continued to pose a significant threat to the safety of the public. The Board continued the disposition from the previous year, a detention order at the Forensic Service of the Centre for Addiction and Mental Health (the “Hospital”), with privileges up to residing in a residence in the community approved by the person in charge of the Hospital.
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Issue and analysis
[7] The appellant argues that the Board’s decision was unreasonable because of three factual errors in its reasons. He argues that the factual errors are material because they involved factors that bear on whether he continues to pose a significant threat to the safety of the public and, if he does, the appropriate disposition. He argues, as he did before the Board, that he should be granted an absolute discharge.
[8] The Crown concedes that the Board made the three errors identified by the appellant in its characterization of the record. However, the Crown argues that the errors of characterization had no impact because, when the Board’s reasons are read as a whole, it is clear the Board understood the correct factual context. The Crown argues that the Board’s risk assessment and disposition were reasonable on the record before it.
[9] A Board decision is reasonable if its risk assessment and disposition order are supported by reasons that can bear a “somewhat probing” examination: R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, 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.
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[22] The system of annual reviews of NCR accused is designed to strike an appropriate balance between the liberty interest of NCR accused and public safety. The Board is tasked to determine if the NCR accused continues to pose a significant threat to the safety of the public and, if so, to determine the least onerous and least restrictive disposition consistent with the factors in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. Decisions of the Board directly affect the liberty of the NCR accused. Given the important interests at stake for an NCR accused and the public, it is incumbent on the Board to take greater care in its characterization of the factual record than is displayed in the reasons under appeal.
[23] Further, as a practical matter, because some NCR accused remain in the system over a period of time and have successive annual reviews, there is a risk that factual errors by the Board in one annual review will carry forward into future reviews.
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