https://www.ontariocourts.ca/decisions/2021/2021ONCA0230.htm

On the operation of the Mental Health Act in relation to conditional discharges vs. detention orders, the Court has said the following, in pertinent part:

[34]       The issue of the extent to which the Mental Health Act provisions may be of sufficient efficacy that they may be used effectively in the context of a conditional discharge disposition to return a decompensating person subject to the disposition to hospital, and keep him or her in for treatment as required, has been raised in appeals to this court in a number of cases over the last twelve years: see, for example, R. v. Breitwieser, 2009 ONCA 784, 99 O.R. (3d) 43, at paras. 7-18; R. v. Lamanna, 2009 ONCA 612, 252 O.A.C. 280, at paras. 14-17; Young (Re), 2011 ONCA 432, 273 C.C.C. (3d) 512, at para. 26; Coburn (Re), 2016 ONCA 536, at para. 19; Munezero (Re), 2017 ONCA 585, at paras. 4-9; Marchese (Re), 2018 ONCA 307, 359 C.C.C. (3d) 408, at paras. 19-23; Valdez (Re), 2018 ONCA 657, at paras. 21-24; Leger (Re), 2018 ONCA 1035, at paras. 9-14; Negash (Re), 2018 ONCA 179, at paras. 10-13; Esgin (Re), 2019 ONCA 155, at paras. 19-21; Davies (Re), 2019 ONCA 738, 380 C.C.C. (3d) 552, at paras. 33-39; Ahmadzai (Re), 2020 ONCA 169, at paras. 22-24; Yunus-Ali (Re), 2020 ONCA 669, at paras. 10-12; and Williams (Re), 2021 ONCA 90, at paras. 19-22.

[35]       These cases make it clear that in deciding whether a detention order is required and is the least onerous and least restrictive disposition, the Board must consider the committal provisions of the Mental Health Act as one of the available mechanisms for securing the person’s attendance at hospital for breach of a discharge condition. However, in order to do that, the Board must have an accurate understanding of how the committal provisions of the Mental Health Act operate.

[36]       Ms. Szigeti, who is an expert in mental health law, has argued that both the treating psychiatrist and one of the Board psychiatrists did not have that accurate understanding of the Mental Health Act. However, neither this court, nor the Board, can be in a position to rule on that submission without a full record. Such a record could include expert evidence from a legal expert in mental health law, expert evidence from specialist psychiatrists with significant experience with the committal provisions of the Mental Health Act, as well as legal briefs on behalf of the appellant, the Hospital and the province.

[37]       In this case, the Board, which had only the evidence of Dr. Toguri on this issue, was entitled to accept and act on that evidence. However, in 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.

On Restrictions of Liberty Hearings

(2)         The Board’s findings on the Hospital’s failure to discharge

[16]       The Board expressly addressed the issue of the Hospital’s failure until April 28, 2020, to implement the Board’s order of November 2019 following the ROL hearing, where the Board held that the appellant’s detention in hospital was no longer necessary or warranted. The Board stated that “[t]he clear purpose of s. 672.81(2.1) [of the Criminal Code, R.S.C. 1985, c. C-46] is to protect NCR offenders from restrictions of their liberties that are not authorized by their disposition, and to ensure that such ROLs are subject to review by the Board,” and found that the appellant’s “prolonged admission to hospital contrary to a Board Decision is unacceptable.” It also found that the Hospital was effectively in breach of the Board’s order.

[17]       The Board explained that its orders are not self-executable, and that it is up to the Hospital to accept the guidance of the Board. The Board did not accept the explanations provided by the Hospital that it misunderstood the Board’s November 2019 decision and that the appellant’s discharge was very complex. The Board noted in respect of the appellant’s discharge plan, that over the eight month period when the appellant was detained in hospital, there were no reports of positive screens or drug use concerns, and that counsel for the Hospital had described the period as the “longest period of stability” for the appellant.

(3)         Did the Board err by relying on the ROL hearing as a procedural safeguard for the appellant, when the Hospital had unacceptably failed to implement the Board’s previous order that his ongoing admittance to the Hospital was not warranted or necessary?

[28]       The Board’s second observation was that the appellant had the protection of s. 672.81(2.1) of the Criminal Code, which requires the Board to hold an ROL hearing after seven days to ensure that the appellant would be returned to the community as soon as possible. The appellant objects that in light of the Hospital’s recent failure to abide by the order of the Board following an ROL hearing, this was a hollow observation.

[29]       I do not agree. The Board strongly reprimanded the Hospital in its reasons for failing to abide by the Board’s order following the ROL hearing, and made its expectations for future compliance abundantly clear. By adding that the ROL gives the appellant further protection from any unwarranted extended stay in hospital, and therefore exposure to COVID-19, the Board was reinforcing its message to the Hospital, and its confidence that the Hospital would not be in breach in the future. I would endorse the Board’s reprimand and its approach.