This article originally appeared in Law360 on September 16, 2025, here:
https://www.law360.ca/ca/articles/2388477
Ontario case raises questions around review board’s handling of those not criminally responsible
By Terry Davidson · Listen to article
Law360 Canada (September 16, 2025, 1:34 PM EDT) — An Ontario lawyer says a recent court ruling shows questions remain around whether the provincial board overseeing those deemed not criminally responsible is properly applying the test for keeping them locked up in hospital — particularly when they have not reoffended or misbehaved.
At the centre of the Ontario Court of Appeal’s Aug. 25 decision in Wheeler (Re), 2025 ONCA 594 sits Alexander Wheeler, who came under the eye of the Ontario Review Board (ORB) after he was found to be not criminally responsible (NCR) for aggressive altercations with family members.
The ORB is an independent tribunal overseeing accused people whom the courts have found to be NCR for a crime on account of a mental disorder.
In December 2016, Wheeler was found to be NCR in threatening to burn down his father’s house and smash in his brother’s skull. Another incident also involved a physical assault on the brother.
Police were called and Wheeler was arrested. During that arrest, a “fully operational airsoft rifle” resembling that of a military-grade AR-15 was found in Wheeler’s vehicle.
Having schizoaffective disorder and bipolar disorder, Wheeler was handed a hospital detention that lasted until Feb. 19, 2020, at which point he was conditionally discharged.
But on March 17, 2023, a detention order against Wheeler was reinstated. The issue for medical personnel was Wheeler’s chronic use of non-medical cannabis, which they feel raises the risk of Wheeler being a threat to the public.
The Appeal Court’s ruling notes that since 2016, all of Wheeler’s conditions included that he “abstain absolutely” from the non-medical use of alcohol or drugs, and that he submit urine and/or breath samples to the hospital for testing.
It is noted Wheeler has experienced some mental health changes over time — grandiosity, irritability and loud speech, for example — but that his behaviour never deteriorated to the state it was at the time of the 2016 offences.
Wheeler was placed back in hospital on Oct. 19, 2023, and has remained there since.
In March 2024, the ORB held Wheeler’s annual review and determined that he remained a “significant threat,” and that detention “was the least onerous and least restrictive disposition to manage the risk.”
This led to Wheeler turning for the first time to Ontario’s Court of Appeal, which took issue with the ORB’s decision and sent the matter back for reconsideration.
At a new ORB hearing held in November 2024, a psychiatrist said Wheeler’s ongoing use of cannabis “would very likely result in a full recurrence of his illness,” even if he keeps taking his medication.
As a result, the hospital recommended nothing but detention until Wheeler stopped using cannabis.
That was when Wheeler again turned to the Appeal Court for this most recent appearance.
Wheeler continued to maintain he can control his cannabis use. He also pointed to the fact that he has not become violent or threatening since the 2016 incidents and has continued to take his medication.
He argued that the board’s review of the December 2023 disposition was flawed in its conclusion that he represented a significant threat to the public.
Wheeler also argued the ORB’s November 2024 disposition was little more than a repackaging of its reasons for its March 2024 disposition.
With this, he sought either an absolute discharge or a new hearing in front of a reconstituted ORB panel.
In the end, Ontario Appeal Court Justices Lois Roberts, Darla Wilson and Lene Madsen allowed Wheeler’s appeal and ordered a new hearing “before a differently constituted” panel.
The court found that “evidence of dangerousness” must be more than “speculative in nature.”
“The Board’s inquisitorial duty requires it to critically examine all evidence, including, but not only, the expert evidence before it,” wrote the Appeal Court. “It is not sufficient to simply accept the expert opinion, as the Board did here, without considering the evidence in support or contrary to it.”
The Appeal Court found that while it is open to the ORB to accept expert opinion on the presence of significant risk, “it must ensure that it critically examines contradictory evidence for and against that opinion, including the facts of the case and the behaviour of the appellant over time.”
“For example, the Board did not reconcile in its reasons the appellant’s long history of medication compliance and absence of the recurrence of florid symptoms or problematic conduct while using cannabis with [the expert witness’s] opinion of significant risk.”
It also found the ORB failed to grapple with evidence concerning the timeframe for the emergence of “subtle symptoms of psychosis” and how that lined up with the evidence of significant risk. It failed to “take a fresh look” at Wheeler’s situation when reviewing the December 2023 disposition — “as it was required to do” — and failed to consider less restrictive measures for Wheeler.
Also, it was noted that Wheeler’s treatment team failed to explore any options other than Wheeler totally abstaining from using cannabis.
“The appellant’s treatment team should prepare a Hospital Report in time for the new hearing that meaningfully explores these issues,” wrote the court.
Anita Szigeti
Wheeler’s lawyer, Anita Szigeti, said the Appeal Court pointed to an absence of evidence that her client is a significant threat to the public.
“For NCR accused under the review board, this judgment reinforces an earlier line of judgments … where the Court of Appeal, in cases where NCR accused persons have not been violent, have not been aggressive, have not reoffended for a sustained period of time … wonders whether the Ontario Review Board is [correctly] applying the test for keeping people detained in hospital [and] keeping people under the review board jurisdiction,” Szigeti told Law360 Canada.
This case, she said, demonstrates that the ORB, psychiatrists and hospitals may have a misunderstanding when it comes to determining significant risk.
“There’s a misunderstanding [that] sometimes rises to the surface that the purpose of the system is to make people perfect and to address any behaviours or patterns or habits they have that the rest of us — you know, as a society — may be concerned about. So, if someone doesn’t take their medication, sometimes this board thinks that’s enough to keep them locked up. Or if they drink alcohol, or if they use cannabis. Even if they are legal substances … sometimes that gets equated with dangerousness because it’s a behaviour or a pattern or a habit that somebody [doesn’t want to see].”
Officials with Ontario’s Ministry of the Attorney General did not respond to a request for comment from Crown Maria Anghelidis.
If you have any information, story ideas or news tips for Law 360 Canada, please contact Terry Davidson at t.davidson@lexisnexis.ca or 905-415-5899.
anitaszigeti 