Ontario Appeal Court Decision Raises Questions Regarding Post-Conviction Treatment of NCR Detainees


On December 28th, 2017, the Court of Appeal for Ontario dismissed an appeal regarding the decision of Ontario Shores, a Mental Health Centre, to detain the appellant at the centre, with some allotments for grounds privileges and community entry for up to ten hours. The appellant alleged the Ontario Shores’ conclusion that he poses a threat to the public is unreasonable, as well as an alleged infringement of s. 14 of the Evidence Act, RSO 1990, c. E.23, which states:

14 An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:

  1. A person who has been found,
  2. incapable of managing property under the Substitute Decisions Act, 1992or under the Mental Health Act,
  3. incapable of personal care under the Substitute Decisions Act, 1992, or

iii. incapable by a court in Canada or elsewhere.

  1. A patient in a psychiatric facility.

  2. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence.  2009, c. 33, Sched. 2, s. 32 (1).

Ultimately, the appeal failed on both grounds. The Court established that the appellant’s lack of insight into his offence, refusal to receive treatment, denial that he had a mental illness, and threats made to a psychiatrist in the facility were evidence of the presence of the delusion related to the initial offence. The combination of these factors formed the basis of what was considered a reasonable conclusion which led to the decision that the appellant should continue to be detained.

In terms of the second allegation, it was found that Part XX.1 of the Criminal Code takes precedence over the aforementioned section of the Evidence Act. S. 14 of the Evidence Act was found not to apply to Review Board proceedings.

A third allegation by the appellant that he was given “extremely high doses” of anti-psychotic medication which resulted in serious psychological harm was found not cognisable on this appeal, due to the lack of evidentiary support and the appellant was instructed to pursue the claim in a standalone hearing with the Superior Court.

The subject matter of the appeal brings forward the delicate balance of administering mental health specific treatment following a conviction and the rights of the detainee. The prioritization of the needs and safety of the public are paramount to the way that cases which involve an NCR or substantial mental illness claim must be handled; however, the claims of the appellant, specifically the third allegation, raise questions of what boundaries must be drawn in terms of allegedly forced medication and treatment where a patient is unwilling. In the weighing of the rights individual versus the notion of public safety, one must consider the necessity of the actions as understood against the severity of the threat. In cases like this, it may be reasonable to suggest that, despite the opinions and concerns of the appellant, the necessary restriction of rights can be understood as a tool to ensure the safety of the individual, as well as the community.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.