Columnist John L. Hill has recently reviewed a number of appeals taken from the Ontario Review Board’s Dispositions regarding NCR accused persons to the Court of Appeal for Ontario.
The most recent is the case of Kenneth Viola in which the ONCA absolutely discharged the Appellant, without returning the matter to the tribunal for re-hearing.
Successful challenge of decision explicates board’s role.
By John L. Hill · Listen to article
Law360 Canada (January 27, 2025, 9:05 AM EST) —
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| John L. Hill |
Sometimes, an administrative tribunal must be reminded of the correct decision-making procedure. The Ontario Review Board is an expert body charged with determining when a person found not criminally responsible should be released.
Too often, counsel for a detained person will be hesitant to challenge a decision when the expert advice upon which the board relies opposes the client’s interest. Anita Szigeti was vigilant in her defence of Kenneth Viola, and her challenge clarified the Ontario Review Board’s rules.
On Nov. 3, 2023, Kenneth Viola was found not criminally responsible after being charged with robbery, assault, sexual assault, break and enter, and mischief. On the morning of Oct. 26, 2022, Viola was a 20-year-old who acted uncharacteristically. He developed delirium, damaged property and assaulted his mother. He was arrested 20 minutes later. He was taken to hospital. By afternoon, he was alert and oriented.
Instead of going home, he was held at the Toronto South Detention Centre. The situation was new to him. He had never been arrested before. Police had been called to the family home three times in years previous when Viola had been accused of hitting his sister. He had no history of mental illness or substance use disorder. He remained in custody until released on bail on May 11, 2023.
Once found not criminally responsible for his bizarre behaviour in November 2023, he was confined at the
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Centre for Addiction and Mental Health (CAMH). While there, he was examined by a psychiatrist, Dr. Jaiswal. The psychiatrist reported that Viola had not been prescribed medications to treat delirium because his issue was resolved, and no further medical intervention was necessary. The report also discussed Viola’s difficulties dealing with stressors, and since his family home had been subject to a fire, difficulties in day-to-day living could be expected. The board received letters of support from his family, including his sister.
The psychiatrist opined that Viola’s intellectual disability made him susceptible to delirium in future. As such, he posed a risk to the general public’s safety and to his family. Without specifying what parts of Dr. Jaiswal’s evidence or of the CAMH report would support a finding that Viola was a significant threat to the public’s safety, the board detained Viola.
The Ontario Court of Appeal reviewed that decision, allowed the appeal and granted Viola an absolute discharge in a decision handed down on Jan. 21, 2025 (Viola (Re), [2025] O.J. No. 252).
Appeal Court Justice Ian Nordheimer, writing for a unanimous three-judge panel, reminded the board that it is now well-settled law that not just any risk of possible harm will justify a detention order; it must be a significant threat (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625). The risk justifying continued detention goes beyond merely trivial or annoying and must give rise to harm that is criminal in nature.
The board did not particularize how it concluded that Viola’s risk met this high standard as required (Marchese (Re), 2018 ONCA 307). The board had mentioned the occurrence reports of police visits to the family home. Police occurrence reports are not evidence. They do not spell out the degree of harm or risk the board must consider. They amount to hearsay. What weight should be given them, mainly when no charges were laid?
The board failed to explain and justify its decision as it is required by law (Carrick (Re), 2015 ONCA 866). It did not explain its conclusion that people with intellectual disabilities are inherently dangerous. Dr. Jaiswal’s report did not conclude that Viola was at a higher risk of violence because of his intellectual disability.
Most importantly, the Ontario Court of Appeal reminded the Ontario Review Board that it has an inquisitorial role. It is not enough to weigh the evidence and reach a conclusion; it has a positive obligation to seek evidence that will support a further restriction on the not criminally responsible person and search for evidence favouring a discharge or a loosened warrant.
A board’s decision is entitled to deference, but to warrant that deference, the decision must be reasonable (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). The board has a non-discretionary duty to grant an absolute discharge if it harbours doubt that the person found not criminally responsible represents a significant threat (Marmolejo (Re), 2021 ONCA 130).
An administrative tribunal must sometimes be reminded of its correct decision-making procedures and responsibilities. This was just such a case.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement(Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing).Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.
Related Articles
Among a series of Related Articles you’ll find the following also by Mr. Hill
Public safety under consideration as Court of Appeal considers Review Board decision
This article is about Luis F. Manrique whose case was returned to the Review Board for re-hearing on the issue of whether or not he continued to pose a significant threat to the safety of the public:
Public safety under consideration as Court of Appeal considers Review Board decision
By John L. Hill · Listen to article
Law360 Canada (September 6, 2024, 1:03 PM EDT) —
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| John L. Hill |
Luis-Fernando Manrique tried to kill his wife. When his trial on an attempted murder charge concluded in 2010, he was found not criminally responsible. The court heard that until his spousal attack, Manrique had no criminal record, nor was there any indication of drug use. Psychiatric testimony revealed Manrique suffered from schizoaffective disorder. He was found not criminally responsible and was confined to a psychiatric facility.
Manrique came before the Ontario Review Board to be discharged from hospital supervision. He argued that even though he had decompensated during periods of non-compliance with his medication regime in 2016 and 2017 and a substitute decision-maker needed to be brought on board to continue his medications, he was not aggressive during these periods. Since January 2023, he has been receiving a long-acting medication. Invega Trinza is a drug injected every three months, and even if there is a lapse, the drug will remain active in his system for a year. Manrique promised to remain on his medications and continue supervision by an outpatient psychiatrist and his priest. He sought an absolute discharge from the order requiring his hospitalization.
Manrique’s treating psychiatrist testified before the board that her patient was not ready for an absolute discharge. Change has been a stressor for Manrique. She pointed out that even though Manrique had recently accepted a referral to the Assertive Community Treatment Team (ACTT) for post-discharge followup, the waiting list for ACTT
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is 18 months. The psychiatrist advised the board that she could provide monthly followups for only six months.
On hearing Manrique’s and the hospital’s evidence, the board concluded that Manrique’s psychiatric disorder required continuation of his medication and without regular oversight, there is a likelihood the patient would decompensate and become a heightened risk to public safety. However, if an absolute discharge were granted, he would not receive weekly assessments and would have to await acceptance by ACTT for over a year. The best the hospital could provide would be a monthly review for a six-month duration. This would create a risk that the Board would be unwilling to approve. Accordingly, it granted a conditional discharge. That would loosen the state’s control over Manrique but ensure the continuation of treatment.
Manrique was dissatisfied with that outcome and appealed the Ontario Review Board’s decision to the Ontario Court of Appeal. The appeal court issued its decision on Sept. 3, 2024 (Manrique (Re), 2024 ONCA 649).
In a brief 10-paragraph decision, the unanimous three-judge panel agreed that there was evidence before the board supporting its conclusion that without board oversight, there was a high likelihood that Manrique would discontinue taking his injections.
However, the appeal court decided that the board’s written reasons fell short of establishing how public safety would be put at risk. The appeal court remained unconvinced that the board’s assertion that there would be “a predictable decline in [Manrique’s] mental status leading to decompensation and a heightened risk to public safety” explained how public safety was likely to be endangered.
Unfortunately, the Court of Appeal did not cite precedents for the threshold to be met to establish grounds for denial of a discharge due to a threat to public safety. However, we can expect that the appeal court had in mind cases such as R. v. Centre for Addiction & Mental Health, 2014 ONCA 740. In that case, the appeal court reviewed the case of a patient named Furlan. At the time of Furlan’s Board hearing, he did not pose a significant threat to the public’s safety. This dispositive conclusion was based on the board’s acceptance of evidence that Furlan had “excellent insight into his mental illness, [and] the importance of medication compliance and of abstaining from substances.” The board’s ruling also rested on undisputed evidence that Furlan had been fully compliant, for more than one year before the hearing, with all the terms of his conditional discharge and had not presented with any symptoms of his mental illness. Further, he sought help when required, and he anticipated continuing to do so.
All parties before the board accepted that Furlan no longer represented a significant risk to the public’s safety and that he was, therefore, entitled to an absolute discharge. Once the board concluded that Furlan did not represent a significant threat to the public’s safety, the only available disposition was an absolute discharge, as a matter of law.
Manrique did not have the positivity that Furlan initially brought to the board. There was insufficient evidence of the degree to which he posed a safety risk for the appeal court to either order an absolute discharge or confirm the Board’s findings. Accordingly, the appeal court set aside the board’s order for a conditional discharge and ordered a review hearing before a differently constituted panel.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement(Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing).Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.
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