On March 29, 2021, the Ontario Court of Appeal released its Judgment in two cases, heard together, a Crown appeal from the November 23, 2020 Certiorari Ruling of Justice Patrick Monahan in the SCJ and an appeal taken by Joanne Woods from her Disposition, which was a Detention Order replacing a Conditional Discharge. The Court restored the Conditional Discharge, quashing the Board’s order due to want of jurisdiction, on two separate grounds. A new hearing before a different panel is ordered.

The Judgment can be found on the Court’s website here:

https://www.ontariocourts.ca/decisions/2021/2021ONCA0190.htm

and the pdf version here:

The Court held, in pertinent part as follows:

C.           ANALYSIS

[32]       The central question in the Crown’s appeal of Monahan J.’s certiorari order is the correct interpretation of Part XX.1 of the Criminal Code. The Crown asks this court to find that the Board has jurisdiction to conduct its proceedings by videoconference without the consent of the NCR accused. This jurisdiction, according to the Crown, derives from the Board’s statutory regime, its core mandate, and its governing practice directions. The Crown further submits that the exercise of this jurisdiction is reasonable in light of the global pandemic. Notably however, the Crown conceded in the hearing that this jurisdiction is rooted in the Board’s legal framework; put another way, the Crown also argues that the jurisdiction to hold proceedings by videoconference, without the NCR person’s consent, exists regardless of COVID-19.

[33]       For the reasons that follow, I disagree. The Board’s conclusion about the boundaries of its jurisdiction is incorrect. The statutory regime provides no authority for the Board to conduct its hearing by videoconference without the consent of the NCR accused. The Board’s decision was not justified when one considers the legal constraints under Part XX.1 of the Criminal Code.

[34]       Again, the Board’s proceedings were suspended once counsel for Ms. Woods filed and served the notice of application to quash in the Superior Court pursuant to r. 43.03(5). The Board nonetheless proceeded to convene by videoconference without Ms. Woods’ consent and without her counsel participating. It subsequently entered a detention order on October 8, 2020. This disposition was made without jurisdiction from the Criminal Code, and in direct contravention of the Criminal Proceedings Rules. The detention order would be null and void on both accounts.

[35]       The COVID-19 pandemic cannot justify a clear departure from the terms of the Criminal Code. The Board is a creature of statute and its powers are strictly circumscribed by the Criminal Code. The Board cannot expand its jurisdiction based on a sense of perceived urgency to act outside its statutory authority. Given the liberty interests at stake and the unique vulnerabilities of the NCR accused, the rights provided in the Criminal Code and the principles of natural justice must be zealously guarded in disposition hearings, even in the face of a global pandemic. Ms. Woods is entitled to an in-person annual disposition hearing unless and until the Criminal Code says otherwise.