Covid-19 Impacts on non-criminal justice procedures

The Court of Appeal for Ontario recently ruled in favour of an individual who challenged a detention order made against him. For privacy reasons, they will be referred to as Smith.

Smith had struggled with mental health and addiction issues throughout their life. They were found not criminally responsible for a series robberies committed in 2009.* After improving with treatment, Smith was discharged to the home of his partner in 2019. In December of 2019, Smith readmitted themselves to hospital upon the breakdown of the relationship.

When the Covid-19 pandemic hit Ontario, Smith’s activities at the hospital were severely limited due to Covid-19 policies. As no one was allowed to visit the hospital, Smith was unable to be visited by family or their former partner and their shared 18-month old child. In May 0f 2020, Smith desired to re-enter the world, and proposed two potential residences with either their mother or a friend as suitable. The review board heard medical advice that Smith should only be released to a dedicated home with support facilities. However, the hospital’s preferred home wasn’t accepting new patients due to Covid-19. Because the hospital was also not conducting home assessments due to the pandemic. Smith was caught in limbo, unable to leave the hospital but with public authorities  unable to accommodate alternative options. The hospital also counselled the review board against a conditional discharge, and the board accepted this recommendation.

The Court of Appeal ruled that the review board’s decision was unsatisfactory, based on four reasons.

  1. The Board concluded that Smith’s previous community stays had been unsuccessful when there was no evidence of this.
  2. The Board did not press the hospital on why it was not conducting home assessments. The Court said that it had a duty to do so, and that it has a responsibility to seek out evidence that favours the individual being reviewed.
  3. The Board dismissed the two home offers as “rudimentary and unprofessional” only because they were handwritten and did not take into account the lack of stationery resources available to Smith.
  4. The Board accepted the hospital’s need to quickly respond if Smith’s condition deteriorated without considering that it had never deteriorated before.

The Court of Appeal ultimately ruled that detention orders and processes cannot be based on expediency, and issued a conditional discharge order for Smith.

This judgement rightfully shows that Covid-19 cannot be used as a blanket justification for the ceasing of all important judicial and quasi-judicial activity, and every effort must be made to ensure that full rights are enjoyed and alternate methods of evaluation are found that, while adhering to public health recommendations, are still satisfactory and respect the rights of the individual being judged/reviewed.


Disclaimer: all information in this case is taken from the Court decision, found at Any statements of facts or commentary on the judgement is derived solely from that document.

* not criminally responsible: a Canadian judicial term that deems a defendant to be not responsible for alleged criminal actions due to the presence of a mental condition that renders them unable to completely control their actions. The defendant is not found guilty of the crime, but must typically be remanded into the custody of mental health professionals for treatment and monitoring. Section 16(1) of the Criminal Code of Canada reads “16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong”.


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