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REVIEW BOARDS

Friday, March 09, 2018 @ 8:33 AM  


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Appeal by Campbell from a disposition of the Ontario Review Board finding that the hospital’s decision to transfer the appellant from a secure unit to a more secure unit was the least onerous and least restrictive measure available in the circumstances and that no notice to the Board of the transfer was required under s. 672.56(2) of the Criminal Code. The transfer decision was made after the appellant started abusing substances, ingesting alcohol, cocaine, and amphetamines. The hospital did not notify the Board of the transfer until two months after the transfer. At the subsequent restriction of liberty hearing, the appellant argued that the delay in notification resulted in a s. 7 Charter breach. The majority of the Board determined that no notice was required, emphasizing that the decision to transfer was a treatment one, arising from an effort to control the appellant’s consumption of illicit substances that posed a risk to her mental health. The Board went on to unanimously conclude that, regardless of whether or not notice was required, the decision to transfer the appellant between units was the least onerous and least restrictive measure available in the circumstances.

HELD: Appeal dismissed. There was no need for notice in this case. When determining the not criminally responsible (NCR) accused’s liberty norm, hospitals should take a contextual approach that considered the individual’s pattern of liberty in the recent past. Once the liberty norm was determined, it was to be compared against the NCR accused’s liberty status following the increases in restrictions. Only where the change in liberty status clearly deviated from the NCR accused’s liberty norm was the hospital required to notify the Board. The change in liberty status must be so significant that a reasonable person, considering all of the circumstances, would think that the Board should be called on to consider whether the hospital properly applied the least onerous and least restrictive test ahead of the next annual review. While the Court accepted that the hospital’s decisions were made in an effort to protect the appellant’s well-being, these decisions could not properly be described as treatment justifying a lack of notice. Treatment could result in a significant increase in restrictions on liberty. Whether a change to an NCR accused’s liberty norm was or was not for treatment did not answer whether it constituted a significant increase in restrictions on liberty. In this case, there was simply too little information about the appellant’s liberty norm before the restrictions placed on her, and too little known about the appellant’s liberty status following her transfer, to conclude that the restrictions placed on her liberty were so significant that the Board had to be notified. The Board’s conclusion that the appellant’s transfer was necessary because her consumption of intoxicants posed a risk to her mental status, her treatment needs, and the safety of the public was amply supported by the evidence.

Campbell (Re), [2018] O.J. No. 803, Ontario Court of Appeal, J.I. Laskin, G.T. Trotter and J.M. Fairburn JJ.A., February 14, 2018. Digest No. TLD-Mar52018009