Ontario Court of Appeal clarifies law on one of Ontario Review Board’s most litigated issues: lawyer

The Court made two findings that will have a significant impact on Review Board law, says lawyer

Ontario Court of Appeal clarifies law on one of Ontario Review Board’s most litigated issues: lawyer
Anita Szigeti, Cassandra DeMelo

A recent Court of Appeal decision gives clarity to the frequently litigated issue which arises when the Ontario Review Board finds the continued detention of a not-criminally-responsible accused is no longer necessary, but the detaining hospital decides to keep them. 

In Blake (Re), 2021 ONCA 230, released Monday, the Court of Appeal rejected Glenroy Blake’s appeal for a conditional discharge, confirming the Review Board’s detention order. But in Blake’s loss, there is a win for the development of Review Board law and the thousands of NCR accused under the Review Board’s jurisdiction, says Anita Szigeti, Blake’s lawyer.

“The Court of Appeal has finally given crystal clear direction to the Review Board on how it must adjudicate in future the very important issue that comes before the board almost every day,” says Szigeti, a litigator with a practice focussed on mental health and the law. “And that's making the decision whether to discharge an accused, subject to conditions, or to detain them,”

The question of whether detention is necessary, or an NCR accused can receive a discharge is among the most litigated issue at ORB hearings, says Cassandra DeMelo, a criminal lawyer and Women’s Vice President of the Criminal Lawyers’ Association.

Blake has been diagnosed with schizophrenia, unspecified personality disorder and substance use disorder, and was ruled NCR for a number of offences which occurred in 2009 and 2010.

After an NCR verdict, the Review Board will evaluate an accused annually, at minimum, and produce a disposition which gives a hospital discretion for their day-to-day management without needing continuous Review Board approval. But if the hospital then significantly increases restrictions on the accused’s liberty for more than seven days, the hospital must report to the Review Board, which convenes a restriction of liberty hearing to determine whether the restrictions are the least onerous and least restrictive necessary to protect the public.

“The power that hospitals have over NCR accused feels almost limitless to those in their care,” says DeMelo. “Therefore, restriction of liberty hearings are incredibly important to ensure the rights of NCR accused are only infringed upon as much as is absolutely necessary.”

“Unchecked, the hospitals are able to effectively detain their patients with very little repercussions to the hospitals for doing so. This was already a problem pre-COVID, like in Mr. Blake's case. COVID has further exacerbated the issue by creating an easy excuse for hospitals to claim that they must restrict the liberty of their patients, all in the name of health and safety.”

In November 2019, after a decline in his condition Blake had been readmitted to hospital and the Review Board held a restriction on liberty hearing. The Review Board found that while the initial hospitalization that August had been warranted, his continued admission was “neither necessary nor appropriate,” said the decision.

Blake’s doctors did not discharge him, despite requests from Szigeti to do so. His discharge came in April 2020, the day before his annual review. The five-month hospital detention, after Blake had been cleared for release into the community was “unacceptable,” said the Review Board.

In the April 2020 disposition, Blake asked for a conditional discharge, arguing he was at risk of contracting COVID if readmitted to the hospital. But the Review Board found a detention order was "necessary and appropriate.” Blake was to report to the Centre of Addiction and Mental Health in-person five days a week and submit to frequent urine testing. Blake was also on a zero-tolerance policy and the failure to report or a failed drug test would mean readmission to CAMH.

On appeal, Blake argued the Review Board had erred in not giving COVID risk sufficient consideration, in failing to account for the “significant progress” he had made while detained in hospital and in relying on a restriction on liberty hearing as a procedural safeguard for him when the hospital had failed to implement the hearing’s finding last time around. Blake also argued the board had erred in relying on expert evidence that Mental Health Act provisions would not apply in a situation where Blake’s psychosis was under control, but risk to public safety arose from his substance abuse and personality disorder.

But Court of Appeal Justices Kathryn Feldman, Peter Lauwers and Gary Trotter disagreed with Blake on all four counts and dismissed the appeal.

But the Court’s comments on the last two appeal grounds raised important issues, says Szigeti. On whether the hospital could be relied on to abide by a Review Board disposition after previously failing to discharge Blake, the Court noted the Review Board had reprimanded the hospital. The Court endorsed the reprimand.

For NCR accused who are re-hospitalized when on an detention order, this move by the court means that if the hospital fails to discharge them after a restriction of liberty hearing decides their detention is no longer warranted, the hospital is acting unlawfully, says Szigeti.

“And this was not at all clear before. And it led to liberty restrictions and ongoing detention and there was no meaningful remedy available to the accused,” she says. “Absent this judgment from the Court of Appeal, we may have had to try and go to Superior Court, bring a habeas corpus application. These are things out of reach of the ordinary NCR accused, in terms of resources.”

Blake had argued the Review Board relied on “erroneous testimony” from a medical expert, who had said the Mental Health Act could not be used to detain Blake for substance abuse if there were no manifestation of his psychosis. The Review Board member also used language that was from a previous version of the Mental Health Act, which no longer applied. As an expert tribunal, the board should have understood how to interpret and apply the provisions properly, argued Blake.

The Court said that neither it nor the Review Board could be expected to determine what is an accurate understanding of the Mental Health Act without “expert evidence from a legal expert in mental health law.” The Court added that Szigeti was one such expert.

The Court found the Review Board was entitled to accept the expert evidence to which it had access, but said: “[I]n a future case where the efficacy of the Mental Health Act committal provisions is going to be a disputed issue before the Board, it will be incumbent on the Board, as an inquisitorial body, to require the parties to place a sufficient evidentiary and legal record before it, to enable it to determine the issue in the context of supporting its disposition as the least onerous and least restrictive.”

“This is extraordinary both because we usually presume that the Courts can interpret the law themselves, but also because the Board is usually considered a subject-matter expert,” says DeMelo. “Yet, here, the Court of Appeal has sent a clear message that a mental health law expert needs to offer an expert opinion on the workings of the Mental Health Act… Such an expert will likely be someone who has experience working with both the Consent and Capacity Board, and the Ontario Review Board.”

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