Ontario Review Board cannot order accused to attend Zoom hearing: Court

ORB needs to establish a process for those who do not consent to video-conference, says lawyer

Ontario Review Board cannot order accused to attend Zoom hearing: Court
Suzan Fraser, Fraser Advocacy

The Superior Court’s rejection of an Ontario Review Board decision should serve as an impetus for the ORB to establish a clear process for providing in-person hearings for those who do not consent to videoconference, says Suzan Fraser, a public-interest litigator with a focus on mental health, children’s and human rights.

In Woods v. Ontario, the Superior Court quashed the ORB’s order that an accused found not criminally responsible and in the community on an ORB disposition attend their annual review by videoconference because of the COVID-19 pandemic.

“It's a really important decision, in my view, because it's a clear rejection by the Court of the argument that the pandemic trumps the Criminal Code,” says Fraser, who was not involved in the case. “I think it sends a message to the board that they have to find a clear process or options for trying to figure out how to hold in-person hearings for those people who don't wish to consent to a video hearing.”

In a decision delivered Nov. 23, Justice Patrick Monahan ruled the Criminal Code only permits the ORB to hold a disposition review hearing by videoconference with the consent of the accused.

“Justice Monahan's judgment affirms the right of the NCR accused to rely on protections afforded her in the Criminal Code, without further explanation as to her reasons and further affirms there is nothing 'absurd' about the statutory requirement that the accused must consent to videoconferencing,” says Anita Szigeti, who acted for Woods.

The judgment is “precedent setting” and will have “practical and immediate application to other cases,” she says. “Many tribunals are struggling with how to continue to hold hearings during the extraordinary circumstances of the pandemic.”

In 2012, Joanne Woods, 53, was found not criminally responsible for uttering a threat to cause death or bodily harm and possessing a weapon for a dangerous purpose. The ORB conditionally discharged Woods into the community in May 2019. Under s. 672.81 of the Criminal Code, the ORB must hold an annual review after such a disposition and on July 31, 2020, Woods was due for her first.

Because of the COVID-19 pandemic, the ORB decided to hold all hearings by videoconference. Relying on s. 672.5(13) of the Code, which states the Review Board can proceed by videoconference, “if the accused so agrees,” Woods sought an adjournment until an in-person hearing could be had, saying she was uncomfortable proceeding via Zoom. The ORB adjourned until July 31, at which time Woods maintained her position and argued that in-person hearings were no longer legally restricted as Ontario had entered phase 3 of its COVID-19 response and gatherings of up to 50 people were allowed.

The Ministry of the Attorney General and the Centre for Addiction and Mental Health, respondents in the case, argued that if Woods could adjourn her hearing until in-person hearings could proceed, she could effectively delay the hearing indefinitely. Sections 672.81 and 672.5(13), which state the ORB must hold a review every 12 months and that the accused must consent to videoconferencing, are in conflict, argued the respondents. The MAG argued s. 672.5(13) should be considered inoperative and of no force or effect under the circumstances of the COVID-19 pandemic. If Woods could not participate by videoconference, the s. 672.5(10)(a) of the Code would permit her to be absent during the hearing, said MAG.

The ORB ruled it had authority to proceed by videoconference regardless of Woods’ consent. The reasonableness of a request under s. 672.5(13) should be assessed in the circumstances of the accused and their explanation for objecting to videoconference, the ORB said in its reasons. Woods had given no justifiable evidence for the necessity of an in-person person hearing and it was “tempting” to agree with MAG that she sought to indefinitely postpone her hearing, said the ORB.

The ORB found that to interpret s. 672.5(13) as granting Woods a right to reject videoconferencing when in-person hearing were “not possible,” would be “an illogical and unreasonable and absurd result,” preventing the Board from fulfilling its statutory mandate, said the ORB.

On appeal, Woods argued the ORB exceeded its jurisdiction, contravened the Code and denied her natural justice and fairness.

“The Court importantly recognized that vulnerable NCR accused persons, whose liberty is at stake during annual review board hearings, are entitled to the same ability to attend and participate in their own hearing, in person, throughout, as criminal accused would be, given that their rights and interests in issue are no less acute,” says Szigeti, who is a litigator with a practice focussed on mental health and the law.

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