The Ontario Court of Appeal has released two Judgments providing guidance to the Ontario Review Board regarding the care they must take with the evidentiary record before them.

Both appeals were heard by this panel of Justices: Miller, Paciocco and Copeland JJ.A

ALFREDSON

The first appeal, while dismissed, includes these passages by the Court in Alfredson (Re) 2024 ONCA 504 – Released: 2024-06-24 – Heard June 17, 2024 here:

https://coadecisions.ontariocourts.ca/coa/coa/en/22489/1/document.do

[21]       Because we conclude that the errors the Board made in characterizing the evidence in places in its reasons did not impact the reasonableness of its risk assessment and disposition, we must dismiss the appeal. However, we are compelled to comment on the lack of care these errors demonstrate.

[22]       The system of annual reviews of NCR accused is designed to strike an appropriate balance between the liberty interest of NCR accused and public safety. The Board is tasked to determine if the NCR accused continues to pose a significant threat to the safety of the public and, if so, to determine the least onerous and least restrictive disposition consistent with the factors in s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46. Decisions of the Board directly affect the liberty of the NCR accused. Given the important interests at stake for an NCR accused and the public, it is incumbent on the Board to take greater care in its characterization of the factual record than is displayed in the reasons under appeal.

[23]       Further, as a practical matter, because some NCR accused remain in the system over a period of time and have successive annual reviews, there is a risk that factual errors by the Board in one annual review will carry forward into future reviews.

SIMONIC

The second appeal was allowed. Simonic (Re), 2024 ONCA 573 Released: 2024-07-19 — Heard: June 18, 2024 here:

https://coadecisions.ontariocourts.ca/coa/coa/en/22557/1/document.do

The Appeal was allowed on other grounds — a failure to include community living provisions jointly recommended by the parties at the hearing, but the Court went on to note as follows:

[17]       Finally, although it is unnecessary for the resolution of the appeal, we must address a significant and troubling misapprehension of the record made by the Board. We make particular note of it, lest it be repeated in error in the Board’s future reasons.

[18]       The Board, in reciting the appellant’s diagnostic results from the PCL-R test for psychopathy, stated that the appellant had received the maximum score. This was an error. His score was in fact 30 out of 40. It is a high score, but the appellant’s treating psychiatrist said it was difficult to make firm conclusions of its clinical significance, given the appellant’s intellectual disability, major mental illness, and recent period of stabilization. In short, the erroneous statement that the appellant had scored a maximum on his PCL-R test could easily lead the Board to incorrect assumptions about the appellant, and the appellant reasonably sought to draw our attention to the error. Although it does not affect the disposition of the appeal, we are sufficiently alarmed that such a serious factual error was made that we are required to bring it to the attention of the Board.

EARLIER RELATED CASES – GONSALVES and CARDINAL(2018):

Historically, the Court of Appeal had also considered other related errors by this Board including issuing a Disposition Order that did not align with the Reasons –

Gonsalves (Re), 2018 ONCA 904

Here: https://www.canlii.org/en/on/onca/doc/2018/2018onca904/2018onca904.pdf

And a case where the Board relied on another accused person’s hospital report to make its findings on which their Disposition was made.

Cardinal (Re), 2018 ONCA 892

Here: https://coadecisions.ontariocourts.ca/coa/coa/en/17298/1/document.do

For related issues in the context of other forensic psychiatric assessments, see this blog entry about the Nettleton and Hason cases: