Court of Appeal for Ontario Offers Guidance on Victim Participation at the Ontario Review Board Gajewski (Re) April 19 2021 – statutory interpretation of section 672.542 of the Code

Posted on April 19, 2021 by Anita Szigeti

https://www.ontariocourts.ca/decisions/2021/2021ONCA0244.htm

Click to access 2021ONCA0244.pdf

The Court’s Analysis, in pertinent part, includes these excerpted paragraphs:

[37]       Contrary to the Crown’s argument, there is no legal requirement on the Board to consider the request for a boundary condition. I agree with counsel for Mr. Gajewski that this proposition is based on a misapprehension of the application of s. 672.542.

[38]       Section 672.542 requires the Board to consider whether it is desirable to include any conditions relating to the safety and security of a victim, witness, or justice system participant. Under s. 672.542(a), the inquiry for the Board is simply whether a no contact term or a prohibition against attending a specific place would be desirable in the interests of the safety and security of a victim, witness, or other person. Under s. 672.542(b), the Board may consider whether it is desirable to impose any other condition necessary to ensure the safety or security of such persons. Nothing in the wording of this section requires the Board to entertain all proposed conditions by the parties. Rather, what conditions may be “desirable” within the meaning of s. 672.542 remains squarely within the Board’s discretion.

[39]       I agree with the appellant that s. 672.542 requires the Board to balance the NCR accused’s interests against those of the victim. However, I am not persuaded that the decision of the Board failed to meet this obligation. There were terms in the conditional discharge that restricted the respondent’s liberty in order to sufficiently protect the victim: specifically, the no contact order and the 500 metre prohibition. It is also important to bear in mind that the Board must apply s. 672.542 in accordance with its other statutory obligations. Specifically, pursuant to s. 672.54, the Board was required to only impose conditions that are both necessary and appropriate, given the twin goals of protecting the public and safeguarding the NCR accused’s liberty interests.  In my view, these goals were met by the conditions imposed.

Unknown's avatar

About Anita Szigeti

• Called to the Bar (1992) • U of T Law grad (1990) • Sole practitioner (33 years) • Partner in small law firm (Hiltz Szigeti) 2002 - 2013 • Mom to two astonishing kids, Scarlett (20+) and Sebastian (20-) • (Founding) Chair of Mental Health Legal Committee for ten years (1997 to 2007) * Founding President of Law and Mental Disorder Association - LAMDA since 2017 * Founder and Secretary to Women in Canadian Criminal Defence - WiCCD - since 2022 • Counsel to clients with serious mental health issues before administrative tribunals and on appeals • Former Chair, current member of LAO’s mental health law advisory committee • Educator, lecturer, widely published author (including 5 text books on consent and capacity law, Canadian civil mental health law, the criminal law of mental disorder, a law school casebook and a massive Anthology on all things mental health and the law) • Thirty+ years’ experience as counsel to almost exclusively legally aided clients • Frequently appointed amicus curiae • Fearless advocate • Not entirely humourless
This entry was posted in Uncategorized. Bookmark the permalink.

Leave a comment