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Review boards - Duties and powers - Orders - Dispositions - Conditional discharge

Thursday, February 02, 2017 @ 7:00 PM  

Appeal by Girard from a disposition of the Ontario Review Board (Board). Girard was found not criminally responsible due to mental disorder on counts of resisting a peace officer and failing to attend court. Girard was detained at North Bay Regional Health Centre. The Board found him a significant threat to the safety of the public. Girard was diagnosed with oppositional defiant disorder and cannabis use disorder. At the Board’s third hearing to review Girard’s disposition, the Chair excluded Girard from the hearing. Girard insisted that he be referred to as the “General Executor” and challenged the Board’s jurisdiction to exclude him. Amicus was appointed to represent Girard’s interests. The Board ordered a conditional discharge on conditions that were significantly less restrictive than those of the previous disposition.

HELD: Appeal allowed. The Board’s disposition was set aside, and the matter was remitted to the Board for a rehearing before a differently constituted panel. The Chair failed to exercise the required judicial patience and restraint before resorting to his power under s. 672.5(10)(b)(i) of the Criminal Code. His action was hasty and precipitous. The Chair made no effort to determine whether corrective measures or accommodations would have made it feasible to proceed with Girard present. The Chair of a previously constituted Board had referred to Girard as “Executor Girard” as requested. The Consent and Capacity Board also accommodated Girard’s preference as to how he should be named. The Chair was not open to attempting to find an alternative acceptable way of addressing Girard. If all reasonable measures failed to prevent Girard from persisting in interrupting the hearing, the Chair could have considered the less drastic measure of cutting off Girard’s microphone only and allowing him to continue to be able to observe and listen to the hearing, and to provide any submissions through the amicus. The Chair ought to have allowed Girard to articulate his objections to the Chair presiding and to the Board’s jurisdiction to reject him, and to have ruled upon them after listening to and considering them.