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REVIEW BOARDS - Duties and powers - Appeals and judicial review

Monday, January 22, 2018 @ 12:52 PM  


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Appeal by Ohenhen from an Ontario Review Board (ORB) disposition refusing to grant the systemic remedies he sought under the Canadian Charter of Rights and Freedoms (Charter) for the violation of his s. 8 right to be free from unreasonable search and seizure. The appellant had been found not criminally responsible (NCR) on charges of intimidation and criminal harassment and had been admitted to the Centre for Addiction and Mental Health (CAMH) as an in-patient in 2007. He had been accepted into a community residence in 2015 when his annual review hearing was held. Prior to the hearing, he brought an application for a declaration his s. 8 Charter right was violated when the CAMH staff took urine samples from him without lawful authority under his disposition. On the application, he had sought an individual remedy as well as systemic remedies in relation to CAMH administrative processes and protocols. The respondents, the Attorney General of Ontario and the Person in Charge of CAMH, had conceded that the appellant’s s. 8 right was violated when unauthorized urine samples were seized from him, but contended that the ORB did not have jurisdiction to grant the requested systemic remedies. The ORB found it did not have jurisdiction to grant the systemic remedies the appellant requested. The appellant appealed.

HELD: Appeal dismissed. The ORB did not err in determining that it lacked jurisdiction to grant the systemic remedies requested by the appellant. The ORB did not have jurisdiction to make the kind of broad orders that went beyond the circumstances of the individual NCR accused person before it. If CAMH had taken no steps to remedy the Charter breaches in this case, the ORB would have had the jurisdiction to make appropriate remedial orders, so long as they were in relation to the appellant. This could have logically included orders that would have affected CAMH’s processes and protocols as they related to the appellant, to ensure that the content of his disposition was known and respected in order to obviate the risk of further breaches occurring.

Ohenhen (Re), [2017] O.J. No. 6651, Ontario Court of Appeal, G.R. Strathy C.J.O., D.H. Doherty and L.B. Roberts JJ.A., December 7, 2017. Digest No. TLD-January222018003