R. v. M.L.C. et al., (2010) 270 O.A.C. 235 (CA)

• Judge: Feldman, Lang and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 22, 2010
• Jurisdiction: Ontario
• Citations: (2010), 270 O.A.C. 235 (CA);2010 ONCA 843

R. v. M.L.C. (2010), 270 O.A.C. 235 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.018

Her Majesty The Queen (respondent) v. M.L.C. (appellant) and Centre for Addiction and Mental Health (respondent)

(C51729; 2010 ONCA 843)

Indexed As: R. v. M.L.C. et al.

Ontario Court of Appeal

Feldman, Lang and LaForme, JJ.A.

December 9, 2010.

Summary:

In 2004, the accused was found not criminally responsible on account of mental disorder respecting charges of assault with a weapon and sexual assault involving family members. His mental disorder appeared to have a link to his use of illicit drugs. The hospital had granted him permission to leave the hospital to live in approved accommodation in the community. When he exhibited signs of deterioration in his mental health, the hospital decided to increase the restrictions on his liberty and required him to return to live in the hospital. Upon review, the Ontario Review Board concluded that his readmission to the hospital and his ongoing detention satisfied the relevant test. At the same time, the Board conducted its annual review of the accused's disposition, and concluded that he presented "a significant threat to the public" and that no alteration in the terms of his disposition was warranted. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 93.81

Mental disorder - Dispositions by court or review board - Considerations - In 2004, the accused was found not criminally responsible on account of mental disorder respecting two offences - The hospital eventually had granted him permission to leave the hospital to live in approved accommodation in the community - When he exhibited signs of deterioration in his mental health, the hospital decided to increase the restrictions on his liberty and required him to return to live in the hospital - Upon review, the Ontario Review Board concluded that his readmission to the hospital and his ongoing detention satisfied the relevant test - The accused appealed - One issue was the test to be applied at a restrictions review - The accused argued that the reviewing Board was required to ask whether the hospital's decision to significantly restrict the patient's liberty met the "least onerous and least restrictive" test set out in s. 672.54 of the Criminal Code for the Board's disposition, which in turn was based on the four enumerated factors referencing public safety and patient liberty - The hospital argued that the Board's test should be limited to whether the hospital's decision reflected "prudent risk management" - The Crown argued for a standard that asked whether the decision was "appropriate" in the circumstances - The Ontario Court of Appeal held that the least onerous and least restrictive standard was the appropriate test - See paragraphs 40 to 46.

Criminal Law - Topic 93.90

Mental disorder - Dispositions by court or review board - Detention (incl. place of and transfers) - In 2004, the accused was found not criminally responsible on account of mental disorder respecting charges of assault with a weapon and sexual assault involving family members - His mental disorder appeared to have a link to his use of illicit drugs - The hospital had granted him permission to leave the hospital to live in approved accommodation in the community - He stopped taking his antipsychotic medication - He exhibited signs of deterioration in his mental health - He began to act oddly and uncharacteristically - He made sexually inappropriate comments - The hospital decided to increase the restrictions on his liberty and required him to return to live in the hospital - He tested positive for illicit drugs - Upon review, the Ontario Review Board concluded that his readmission to the hospital and his ongoing detention satisfied the relevant test - The Board also conducted its annual review of the accused's disposition and concluded that he presented "a significant threat to the public" and that no alteration in the terms of his disposition was warranted - The Ontario Court of Appeal dismissed the accused's appeal - Respecting the Board's restrictions review, the increased restrictions met the least onerous and least restrictive standard - Respecting the Board's annual detention review, it was reasonable for the Board to conclude that the accused's ongoing detention (with significant flexibility to return him to approved accommodation if it becomes warranted) was the least onerous and least restrictive disposition consistent with public safety.

Criminal Law - Topic 93.94

Mental disorder - Dispositions by court or review board - Jurisdiction and powers - In 2004, the accused was found not criminally responsible on account of mental disorder respecting two offences - The hospital eventually had granted him permission to leave the hospital to live in approved accommodation in the community - When he exhibited signs of deterioration in his mental health, the hospital decided to increase the restrictions on his liberty and required him to return to live in the hospital - Upon review, the Ontario Review Board concluded that his readmission to the hospital and his ongoing detention satisfied the relevant test - The accused appealed - He argued that the Board erred at the restrictions review by failing to constrain the review to the time when the restrictions were imposed as required by s. 672.81(2.1) - The Ontario Court of Appeal rejected the argument - The argument about time parameters was based on the 2006 change to the wording of the relevant Criminal Code provision - In the former s. 672.81(2), Parliament provided for the Board to review the hospital's "disposition", while the new s. 672.81(2.1) provided for the Board to review the hospital's restrictions "decision" - It was evident from Parliament's replacement of "any disposition" with "a decision" that it intended that the review focus on the decision to impose the particular restriction on the patient's liberty - Nothing in the amendment froze the Board's analysis to the point in time when the decision was made - The Board was mandated to consider the indefinite nature of the hospital's decision and the accused's ongoing circumstances from the time of the decision up to and including the time of the review - See paragraphs 33 to 39.

Cases Noticed:

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 25].

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al., [2004] 1 S.C.R. 498; 318 N.R. 73; 185 O.A.C. 201; 2004 SCC 20, refd to. [para. 27].

R. v. Breitwieser (A.J.) (2009), 264 O.A.C. 388; 2009 ONCA 784, refd to. [para. 55].

R. v. Lamanna (A.) (2009), 252 O.A.C. 280; 2009 ONCA 612, refd to. [para. 55].

R. v. Runnalls (N.) (2009), 251 O.A.C. 284; 2009 ONCA 504, refd to. [para. 55].

R. v. Simpson (D.), [2010] O.A.C. Uned. 402; 2010 ONCA 302, refd to. [para. 55].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 672.81(2.1) [para. 19].

Counsel:

M.L.C., acting in person;

Suzan E. Fraser, as amicus curiae;

Maura Jette, for the respondent, Her Majesty the Queen;

James Hammond, for the respondent, Centre for Addiction and Mental Health.

This appeal was heard on September 22, 2010, before Feldman, Lang and LaForme, JJ.A., of the Ontario Court of Appeal. Lang, J.A., released the following decision on December 9, 2010.