



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Petroniuk, 2018 ONCA 1083

DATE: 20181224

DOCKET: C59882

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

The Ontario Review Board

Respondent

The Person in Charge of
    the Centre for Addiction and Mental Health

Respondent

and

Elizabeth Petroniuk

Applicant/Appellant

Graham Jenner, for the appellant

Catherine Weiler, for the respondent, Her Majesty the Queen

Gavin S. MacKenzie, for the respondent, The Person in Charge of
    the Centre for Addiction and Mental Health

Heard: December 21, 2018

On appeal from the order of Justice Gary Trotter of the
    Superior Court of Justice dated December 1, 2014, with reasons reported at 2014
    ONSC 6951.

REASONS FOR DECISION

[1]

In 2007, Elizabeth Petroniuk was found not criminally responsible on a
    charge of assault. Since that time, she has been subject to the jurisdiction of
    the Ontario Review Board (the ORB).

[2]

In 2014, Ms. Petroniuk applied for a declaration that s. 672.56 of the
Criminal
    Code
violated her rights under s. 7 of the
Canadian Charter of Rights
    and Freedoms
on the basis that the section did not afford an NCR accused
    the ability to compel the ORB to hold a hearing to review a decision of the
    person-in-charge of a hospital to significantly increase the restrictions on
    the liberty of an NCR accused.

[3]

The application judge dismissed Ms. Petroniuks application, finding
    that s. 672.56 did not violate s. 7 of the
Charter
: 2014 ONSC 6951, at
    para. 33. Ms. Petroniuk appeals.

[4]

We dismiss the appeal substantially for the reasons given by the
    application judge in paras. 13-25 and 27-31 of his decision.

[5]

Although we do not share the application judges view that a
mandamus
application would provide a person in Ms. Petroniuks situation with a
    practical avenue to review any increase in the restrictions on her liberty, we
    do note that that both CAMH and the ORB considered and responded promptly to
    the information provided by Ms. Petroniuks counsel complaining about her loss
    of privileges in 2013.

[6]

As the Crown noted in para. 42 of its factum, Part XX.1 provides a
    number of liberty safeguards or procedural avenues to an NCR accused to be
    heard with respect to non-significant restrictions of liberties:

(i)      The
    ability of the hospital to ask for a hearing to review a disposition under s.
    672.81(2), even if the significant increase threshold in s. 672.56(2) has not
    been reached;

(ii)      The
    ability of the ORB to hold a hearing to review a disposition at any time, on
    its own motion or at the request of a party, under s. 672.82(1);

(iii)     The
    ability of an NCR accused to bring a hospital decision to the ORBs attention
    in writing and seek redress, as the appellant did in this case; and

(iv)     The
    ability to have the ORB review any restrictions at the next annual review
    hearing under s. 672.81(1).

[7]

Finally, the application judge did not have the benefit of this courts
    decision in
Campbell (Re)
, 2018 ONCA 140, which clarified how to
    determine when a person-in-charge of a hospital significantly increases the
    restrictions on the liberty of an NCR accused. That decision reinforces the
    application judges conclusion, at para. 20, that Part XX.1 of the
Criminal
    Code
does not contemplate the ORB micromanaging the day-to-day operations
    of hospitals. The decision in
Campbell (Re)
also counsels that when
    the hospital is in doubt as to whether a significant increase in restrictions
    on liberty has remained in place for more than seven days, it should give
    responsible notice to the ORB: at para. 69.

[8]

The appeal is dismissed.

J.C.
    MacPherson J.A.
G. Pardu J.A.
David Brown J.A.


