Powers of Review Board
Where the Ontario Review Board finds that an NCR person continues to pose a significant threat to the safety of the public and that the least onerous and least restrictive disposition requires his continued detention in a hospital it is the Board’s role to set out the general parameters of his detention, leaving the day-to-day management decisions to the hospital.
For example, the Ontario Review Board cannot impose a mandatory oder on a hospital to take an NCR person for escorted visits to his mother's home. By making an order mandatory, with no discretion accorded to the hospital to implement it only if and when it would be beneficial to the NCR person and public safety would be ensured, the Board erred in law and acted unreasonably. The person in charge had to be able to ensure that the NCR person would be able to handle such visits, that his mother would be prepared to accommodate them, and that the hospital was in a position to facilitate them: R v Scott, 2017 ONCA 94.
A board's decision to find an offender to be a significant threat to the safety of the public is reviewable on a standard of correctness: Re Krivic: 2017 ONCA 379 at para 11
Where Treatment Impasse Occurs
It is an error of law for the Ontario Review Board to fail to recognize a treatment impasse in making a detention order at a maximum secure forensic psychiatric facility: Gonzalez (Re), 2017 ONCA 102. The principles related to the determination of a treatment impasse are as follows (paras 28-30):
First, a long period of incarceration without treatment or progress can constitute a treatment impasse.
Second, an accused’s stubborn refusal to engage with the treatment team can also constitute a treatment impasse.
Third, although the Review Board has no power to prescribe medical treatment, where the Board finds there to be a treatment impasse, it is entitled, under its supervisory powers, to order a re-evaluation of current or past treatment approaches and an exploration of alternative approaches. The Board must form its own independent opinion about the accused’s treatment plan and clinical progress, and in doing so, it may order an independent assessment in some form under s.672.121 of the Criminal Code, and may order the accused’s transfer to another facility for that purpose.
In Gonzalez (Re), a treatment impasse existed because the only way forward for the NCR person was for him to consent to treatment or be declared incapable, but the his mental illness precluded his consent to treatment, and the treatment team had not declared him incapable. The court stated that while a treatment impasse might be tolerable for a certain period of time, “when it reaches the duration of this case, a decade, the Review Board is obliged to go further” (at para. 41). The court held that an independent assessment of the appellant was required. The court stated that it would be up to the Board to specify the modality of the assessment.