



COURT OF APPEAL FOR
    ONTARIO

CITATION: Woods (Re),
    2021 ONCA 190

DATE: 20210329

DOCKET: C68774 &
    C68940

Tulloch, Huscroft and
    Thorburn JJ.A.

DOCKET: C68774

IN THE MATTER OF:
    Joanne Woods

AN APPEAL UNDER PART
    XX.1 OF THE CODE

DOCKET: C68940

AND BETWEEN

Her Majesty the Queen

Appellant

and

Joanne Woods

Respondent

Michael Davies, for the appellant (C68774), Joanne Woods

Dena Bonnet and Emily Marrocco, for the appellant
    (C68940) and respondent (C68774), Her Majesty the Queen

Anita Szigeti and Maya Kotob, for the
    respondent (C68940), Joanne Woods

Leisha Senko, for the respondent (C68774 & C68940),
    Person in Charge of Centre for Addiction and Mental Health

David Humphrey and Michelle Biddulph, for the respondent
    (C68940), Ontario Review Board

Amy Ohler and Eric Neubauer, for the intervener
    (C68940), Criminal Lawyers Association (Ontario)

Heard: March 12, 2021 by videoconference

On
    appeal from the disposition of the Ontario Review Board dated October 8, 2020,
    with reasons dated October 15, 2020 (C68774).

On appeal from the judgment of
    Justice Patrick J. Monahan of the Superior Court of Justice, dated November 6,
    2020, with reasons reported at 2020 ONSC 6899, 152 O.R. (3d) 595, granting
certiorari
to quash the ruling of the Ontario Review Board, dated July 31, 2020, holding
    it had jurisdiction to conduct a disposition review hearing under Part XX.1 of
    the
Code
by videoconference without the accuseds consent (C68940).

Tulloch J.A.:

A.

INTRODUCTION

[1]

On May 9, 2012, the court found Ms. Woods not criminally
    responsible on account of mental disorder (NCRMD or NCR) for charges of
    uttering a threat to cause death or bodily harm, and possession of a weapon for
    a dangerous purpose. She has been under the jurisdiction of the Ontario Review
    Board (the ORB or the Board) ever since.

[2]

In May 2020, the ORB announced that it would hold all of its
    hearings remotely, by videoconference, due to the COVID-19 pandemic. Ms. Woods
    annual disposition hearing was initially scheduled for May 29, 2020. Ms. Woods did
    not consent to proceeding by videoconference and sought to adjourn her hearing
    until the Board could convene in person.

[3]

After a two-month adjournment, on July 31, 2020, the Board held
    that the hearing could proceed by videoconference, without Ms. Woods consent
    and despite her objections. Ms. Woods served and filed an application to quash
    the Boards decision in the Ontario Superior Court. Notwithstanding r. 43.03(5)
    of the
Criminal Proceedings Rules for the Superior Court of Justice
    (Ontario),
SI/2012-7

which suspends the proceedings before the
    Board once Ms. Woods had served and filed a Notice of Application to quash,
    unless a judge permits the proceedings to go ahead
[1]
 the Board held a disposition hearing by videoconference on September 28,
    2020. Just over a week later, on October 8, 2020, the Board ordered Ms. Woods
    detained at the General Forensic Unit at the Centre for Addiction and Mental
    Health (CAMH), subject to conditions.

[4]

Prior to this order, since April 2017, Ms. Woods had been living
    in the community under a conditional discharge.

[5]

Monahan J. heard Ms. Woods application to quash on November 6,
    2020. On November 23, 2020, Monahan J. issued a writ of
certiorari
and
    quashed the Boards July 31, 2020 decision to conduct its proceedings by videoconference,
    for want of jurisdiction. He held that Part XX.1 of the
Criminal Code,
R.S.C., 1985, c. C-46
,
which governs the NCR regime, did not
    authorize the Board to convene by videoconference without the consent of the
    accused. The parties agreed that this decision only affected the Boards
    jurisdictional ruling on July 31, 2020, and not the disposition order rendered
    on October 8, 2020.

[6]

The Crown appeals Monahan J.s
certiorari
order, while
    Ms. Woods appeals the order of the Board setting aside her conditional
    discharge and entering a detention order.

[7]

For the reasons that follow, I would dismiss the appeal of the
certiorari
application. The Board did not have jurisdiction to proceed by videoconference
    without the consent of the NCR accused. It follows that the Board rendered Ms. Woods
    October 8, 2020 disposition order without jurisdiction. The disposition is
    therefore null and void for want of jurisdiction.

[8]

Accordingly, it is unnecessary to address the merits of Ms.
    Woods appeal of her disposition order in great detail. Suffice to say, even if
    I had reached a different conclusion on the merits of the
certiorari
appeal, the disposition order would still be void because the Board conducted
    its disposition hearings in violation of r. 43.03(5).

[9]

It is my understanding that Ms. Woods is currently detained at
    the hospital. She has had another disposition hearing in the interim, heard on
    December 8, 2020 and decided on January 13, 2021. The Board continued
    her detention order in that disposition:
Woods (Re),
[2021] O.R.B.D.
    No. 104. However, this detention order rests on a faulty foundation given that the
    Board entered the original detention order without jurisdiction.

[10]

Thus, the detention order is quashed, and Ms. Woods conditional
    discharge is reinstated. I would return the matter to the Board to be heard by
    a different panel as soon as practicable.

B.

BACKGROUND AND OVERVIEW

[11]

As noted above, in May 2020, the ORB announced that it would hold
    all of its hearings remotely, by videoconference, due to the COVID-19 pandemic.
    In this announcement, the Boards Chair also noted that this manner of
    proceeding may give rise to arguable inconsistencies with the
Code
,
    and individuals with any misgivings could apply to have their matter
    adjourned.

[12]

Ms. Woods annual disposition hearing was initially scheduled for
    May 29, 2020. Ms. Woods attended the hearing, represented by counsel.
    She did not consent to the hearing proceeding by videoconference and sought an
    adjournment until the parties could schedule an in-person hearing. The Board
    granted the adjournment and scheduled a new hearing date for July 31, 2020.

(a)

The ORBs Ruling on Jurisdiction

[13]

By the time of Ms. Woods adjourned hearing date on July 31,
    2020, the ORB was still not convening for in-person hearings. The hearing
    proceeded by videoconference.

[14]

Counsel for Ms. Woods filed a notice of application submitting
    that the Board lacked jurisdiction to hold the hearing by videoconference
    without her consent. She argued that s. 672.5(13)
[2]
of the
Criminal Code
only allows the Board to proceed by videoconference
    if the accused so agrees. Additionally, counsel for Ms. Woods pointed
    out that s. 672.81(1),
[3]
which imposes a mandatory review of dispositions after twelve months, is not
    absolute and that adjournments are a reasonable justification for an extension
    of that time period.

[15]

The Crown argued that s. 672.81(1) requires the Board to fulfill
    its statutory duty to hold a hearing within twelve months of the last
    disposition and that this duty takes priority over any consent required by s.
    672.5(13). The Crown also submitted that the current public health emergency
    rendered s. 672.5(13) inoperative in the circumstances. Finally, the Crown
    argued that the Board is entitled to govern its own process.

[16]

The Board, in an oral ruling, dismissed the application and
    denied Ms. Woods request for a further adjournment. It held that the
    Board had the authority to proceed by videoconference notwithstanding s.
    672.5(13) and Ms. Woods objections.

[17]

In reasons released on August 25, 2020, the Board decided that an
    overall review of s. 672.5 and the Boards Rules of Procedure indicates that
    the ORB has wide latitude in deciding how its hearing procedures are to be
    governed with a fundamental goal of securing the just determination of the
    real matters in dispute. It further held that requests to extend the twelve-month
    review by way of adjournment would be assessed on a case-by-case basis.

[18]

In the case at hand, the Board found that another adjournment was
    unreasonable because there appeared to be significant live issues concerning
    the hospitals ability to manage Ms. Woods illness and substance use, and
    these issues needed to be resolved in a timely manner. The Board also observed that
    there was no evidence that a denial of an in-person hearing occasioned any
    unfairness to Ms. Woods.

[19]

Since an in-person hearing was not possible while COVID-19 continued
    to pose a risk, the Board reasoned that Ms. Woods was, in effect, seeking to
    postpone her annual disposition hearing indefinitely. The Board noted that it
    was tempting to conclude that Ms. Woods refusal to consent was a not so
    subtle manoeuvre to delay her hearing so that she can remain on a conditional
    discharge and maintain her current privileges without change. The Board
    reasoned that an interpretation of s. 672.5(13) that would permit Ms. Woods to
    delay the annual disposition hearing indefinitely would lead to an absurd
    result, since it would prevent the Board from fulfilling its statutory mandate.

[20]

Based on the foregoing, the Board denied Ms. Woods request for
    an adjournment. The hearing was ordered to take place as soon as practicable. The
    Board found that it had the authority to proceed in Ms. Woods absence, even if
    she did not consent to a hearing by videoconference, under s. 672.5(10)(a).
[4]


(b)

The Continuation of Ms. Woods Hearings

[21]

On August 28, 2020, the Board reconvened. Counsel for Ms. Woods
    informed the Board that she had filed and served an application to quash the
    Boards July 31, 2020 jurisdictional decision in the Superior Court. She took
    the position that r. 43.03(5) of the
Criminal Proceedings Rules
applied and suspended the proceedings. In the alternative, counsel for Ms.
    Woods asked the Board to recuse itself on the basis of a reasonable
    apprehension of bias. The Board disagreed on both counts and commenced the
    hearing. It did not have enough time to hear all the evidence, so the matter
    was again adjourned to a later date.

[22]

A differently constituted panel convened by videoconference on
    September 28, 2020.
[5]
Ms. Woods did not attend this hearing. Counsel for Ms. Woods did not have
    instructions to proceed in Ms. Woods absence and asked for a further
    adjournment to either obtain instructions or seek advice from the Law Society
    as to whether she could participate as counsel without instructions.
[6]
The Board ordered that the hearing proceed in Ms. Woods absence, citing s. 672.5(10)(a),
    notwithstanding that her counsel could not participate without her instructions.
    It heard evidence from the hospital and a psychiatrist regarding Ms. Woods
    current medical condition, needs and circumstances. Counsel for Ms. Woods did
    not, and could not, make submissions or cross-examine any of the witnesses
    without instructions from her client.

[23]

On October 8, 2020, the Board issued its disposition. It set
    aside Ms. Woods conditional discharge and entered a detention order.

(c)

Ms. Woods
Certiorari
Application

[24]

A month later, on November 6, 2020, Monahan J. heard Ms. Woods
    writ of
certiorari
application to quash the Boards July 31, 2020
    decision to proceed by videoconference without her consent. In reasons released
    on November 23, 2020, Monahan J. allowed the application and quashed the
    Boards July 31, 2020 decision, holding that the Board acted without legal
    authority.

[25]

At the outset, Monahan J. noted that the Boards jurisdiction is
    defined and limited by the
Criminal Code
. The default rule in s.
    715.21 of the
Criminal Code
provides that a person who appears at,
    participates in, or presides at a proceeding shall do so personally. Monahan
    J. found that personally means that criminal proceedings must proceed in the
    physical presence of the accused.

[26]

Monahan J. turned his analysis to Part XX.1 of the
Criminal
    Code,
which governs the NCRMD regime. He noted that an iteration of the default
    rule entitling accused individuals to an in-person hearing is found in s.
    672.5(9).
[7]
Subsection 672.5(10) goes on to list specific circumstances where the
    accused may be absent from the hearing.

[27]

Monahan J. noted that only s. 672.5(10)(a)
[8]
could apply, which provides that the Board may permit the accused to be absent
    during the whole or any part of the hearing on such conditions as the court or
    chairperson considers proper. However, Monahan J. found the word permit in
    s. 672.5(10)(a) to be premised on the accused having waived the right to an
    in-person hearing. In other words, Monahan J. found that the Board could not
    rely upon s. 672.5(10)(a) to proceed in the absence of an accused without their
    consent; s. 672.5(10)(a) only applies where the accused has waived her right to
    be present.

[28]

Lastly, Monahan J. found that Part XX.1 specifically addresses
    the Boards ability to proceed by videoconference in s. 672.5(13), and that
    provision requires the accuseds consent.
[9]

[29]

After his review of the statutory framework, Monahan J. concluded
    that the Boards decision ignored the clear and unambiguous language of ss.
    672.5(9) and (13), which provide the NCR accused with a right to an in-person
    hearing.

[30]

Monahan J. also pointed out that the Board failed to consider
    whether it was, in fact, possible to hold a hearing in person. At the time,
    there was no legal rule or public health recommendation that prevented the
    Board from convening in person.

[31]

More broadly, Monahan J. reasoned that it is open to Parliament,
    and not the Board, to determine whether to amend s. 672.5(13) and grant the
    Board authority to conduct a disposition review hearing by videoconference over
    the objections of the accused. As I return to below, Parliament did not do so
    in its recent amendments to the
Criminal Code
, which expanded the circumstances
    under which trials and other criminal proceedings may take place by videoconference.

C.

ANALYSIS

[32]

The central question in the Crowns appeal of Monahan J.s
certiorari
order is the correct interpretation of Part XX.1 of the
Criminal Code.
The
    Crown asks this court to find that the Board has jurisdiction to conduct its
    proceedings by videoconference without the consent of the NCR accused. This
    jurisdiction, according to the Crown, derives from the Boards statutory
    regime, its core mandate, and its governing practice directions. The Crown
    further submits that the exercise of this jurisdiction is reasonable in light
    of the global pandemic. Notably however, the Crown conceded in the hearing that
    this jurisdiction is rooted in the Boards legal framework; put another way, the
    Crown also argues that the jurisdiction to hold proceedings by videoconference,
    without the NCR persons consent, exists regardless of COVID-19.

[33]

For the reasons that follow, I disagree. The Boards conclusion
    about the boundaries of its jurisdiction is incorrect. The statutory regime
    provides no authority for the Board to conduct its hearing by videoconference
    without the consent of the NCR accused. The Boards decision was not justified
    when one considers the legal constraints under Part XX.1 of the
Criminal
    Code
.

[34]

Again, the Boards proceedings were suspended once counsel for
    Ms. Woods filed and served the notice of application to quash in the
    Superior Court pursuant to r. 43.03(5). The Board nonetheless proceeded to
    convene by videoconference without Ms. Woods consent and without her counsel
    participating. It subsequently entered a detention order on October 8, 2020. This
    disposition was made without jurisdiction from the
Criminal Code,
and
    in direct contravention of the
Criminal Proceedings Rules.
The
    detention order would be null and void on both accounts.

[35]

The COVID-19 pandemic cannot justify a clear departure from the
    terms of the
Criminal Code.
The Board is a creature of statute and its
    powers are strictly circumscribed by the
Criminal Code.
The Board
    cannot expand its jurisdiction based on a sense of perceived urgency to act
    outside its statutory authority. Given the liberty interests at stake and the
    unique vulnerabilities of the NCR accused, the rights provided in the
Criminal
    Code
and the principles of natural justice must be zealously guarded in
    disposition hearings, even in the face of a global pandemic. Ms. Woods is
    entitled to an in-person annual disposition hearing unless and until the
Criminal
    Code
says otherwise.

(1)

The Standard of Review

[36]

The parties appeared before Monahan J. on an application for a
    writ of
certiorari. Certiorari
is an extraordinary remedy that derives
    from the supervisory jurisdiction of the Superior Court over a tribunal of
    limited jurisdiction. For parties in criminal or quasi-criminal proceedings,
certiorari
is available to address alleged jurisdictional errors; that is, when a
    court or tribunal either (a) fails to observe a mandatory provision of a
    statute or (b) acts in breach of the principles of natural justice:
Bessette
    v. British Columbia (Attorney General),
2019 SCC 31, [2019] S.C.J. No. 31,
    at para. 23. The standard of review is correctness:
Ontario (Attorney
    General) v. Taylor,
2010 ONCA 35, 98 O.R. (3d) 576, at para. 16.

(2)

Statutory Interpretation of Part XX.1 of the
Criminal Code

[37]

Whether the Board failed to observe a mandatory provision of the
Criminal
    Code
is a question of statutory interpretation. In Canada, it is trite law
    that the modern approach to statutory interpretation requires that the words
    of an Act are to be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
Bell ExpressVu Ltd. Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[38]

The starting point is to determine the ordinary meaning of the
    text. The ordinary meaning refers to the understanding that spontaneously
    comes to mind when words are read in their immediate context and is the
    natural meaning which appears when the provision is simply read through:
R.
    v. Wookey
, 2016 ONCA 611, 531 O.A.C. 13, at para. 25;
Pharmascience
    Inc. v. Binet
, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 30; and
Canadian
    Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn
., [1993] 3 S.C.R.
    724, at p. 735.

[39]

After establishing an initial impression, the court must consider
    and draw inferences from the Act

as a whole. This includes related
    provisions and the overall scheme.
It is presumed that the
    legislature is competent and well informed, that it uses language consistently,
    and that the provisions in the Act collectively form a coherent scheme:
Ruth
    Sullivan,
Sullivan and Dreidger on the Construction of Statutes
, 4th ed.
    (Markham: Butterworths, 2002), at pp. 162-63 and 186-87;
Ordon Estate
v
.
    Grail
, [1998] 3 S.C.R. 437, at para. 60.

[40]

There is also a presumption against tautology:
R.
    v. Gallone,
2019 ONCA 663, 147 O.R. (3d) 225, at
    para. 31.
That presumption instructs that the legislature avoids
    superfluous or meaningless words, that it does not pointlessly repeat itself or
    speak in vain: Ruth Sullivan,
Sullivan on the Construction of Statutes
,
    6th ed. (Markham: LexisNexis, 2014), (Sullivan), at p. 211, citing
Attorney
    General of Quebec v. Carrières Ste-Thérèse Ltée
, [1985] 1 S.C.R. 831, at
    p. 838. Instead, [e]very word in a statute is presumed to make sense and to
    have a specific role to play in advancing the legislative purpose:
Sullivan
,
    at p. 211.

[41]

Finally, a court must situate its interpretation within the
    purpose of the legislation. Insofar as the language of the text permits, courts
    should adopt interpretations that are consistent with the legislative purpose
    and avoid interpretations that defeat or undermine that purpose. It is presumed
    that the legislature does not intend absurd consequences:
Rizzo & Rizzo
    Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 27.

[42]

The questions to be answered are whether ss. 672.5(9), (10) and
    (13) support the conclusions that: (a) the accused has the right to an
    in-person hearing unless they consent to a hearing by videoconference; and (b)
    the Board may proceed in the absence of the accused without their consent. Given
    the interrelated nature of these questions, I will consider them in a blended
    manner.

[43]

Before doing so, I will briefly summarize ss. 672.5(9), (10) and
    (13). Subsection 672.5(9) states that [s]ubject to subsection (10), the
    accused has the right to be present during the whole of the hearing. Subsection
    (10) goes on to list specific circumstances where the accused may be absent
    from the hearing. As noted above, only ss. 672.5(10)(a) is applicable and it
    reads: The court or the chairperson of the Review Board may (a) permit the
    accused to be absent during the whole or any part of the hearing on such
    conditions as the court or chairperson considers proper. The statute
    specifically addresses videoconferencing in s. 672.5(13), which provides:
    [i]f the accused so agrees, the court or the chairperson of the Review Board
    may permit the accused to appear by close circuit television or videoconference
    for any part of the hearing.

(a)

The Ordinary Meaning

[44]

When read alone, s. 672.5(9) arguably gives rise to some ambiguity
    as to whether the term present entitles an accused to be
physically
present. The right to be present could simply mean a right to attend the
    hearing. In contemporary times, someone could attend a hearing either
    physically or virtually. This would be consistent with the approach of courts
    to consider advances in technology that did not exist when Parliament enacted
    the provision:
John v. Ballingall
, 2017 ONCA  579, 136 O.R.
    (3d) 305, at para. 24, leave to appeal refuse [2017] S.C.C.A. No. 377. Such an
    approach ensures that statutory interpretation applies a dynamic approach to
    interpreting their enactments, sensitive to evolving social and material
    realities:
R. v. 974649 Ontario Inc
., 2001 SCC 81, [2001] 3 S.C.R.
    575, at para. 38.

[45]

However, any ambiguity about whether an accuseds right to be present
    entitles him or her to an in-person hearing is resolved when one considers s. 672.5(13).
    That section explicitly addresses circumstances where an NCRMD accuseds presence
    may be virtual, that is, through a videoconference. Parliament was careful to stipulate
    that the NCRMD accused must agree to appear by videoconference. This provision
    would have no meaning if s. 672.5(9) did not entitle the NCRMD accused to be physically
    present at a hearing. As noted above, the presumption of tautology states that
    [e]very part of a provision or set of provisions should be given meaning if
    possible, and courts should avoid, as much as possible, adopting
    interpretations that would render any portion of a statute meaningless or
    pointless or redundant:
R. v. Hutchinson
, 2014 SCC 19, [2014] 1 SCR
    346, at para. 16;
Sullivan
, at p. 211.

[46]

A plain reading of s. 672.5(10)(a) does not assist this court in
    interpreting whether the accused person has a right to be physically present. The
    Boards ability in certain circumstances to proceed in the absence of the
    accused does not speak to whether the accused is entitled to an in-person
    hearing.

[47]

However, a plain reading of s. 672.5(10)(a) does shed light on
    whether the Board may proceed in the absence of the accused without their
    consent. I am not convinced that the Board may do so. The word permit in s.
    672.5(10)(a) implies that the Board may grant the accused permission to be
    absent. Stated otherwise, it is premised on an accused waiving her right to an
    in-person hearing.

[48]

The word permit also has a specific connotation in the
Criminal
    Code
context. Monahan J. pointed to s. 650(2)(b)  a virtually identical
    provision  which courts have interpreted as only applying where an accused has
    waived their right to be present at trial:
R. v. Drabinsky,
[2008]

235 C.C.C. (3d) 350 (Ont. S.C.), at paras. 7-11. Mohanan J. also compared
    the word permit with the language of s. 715.23(1), which provides: "except
    as otherwise provided in this act, the court may order an accused to appear by
    audio conference or videoconference, if the court is of the opinion that it
    would be appropriate having regard to all the circumstances. Under s.
    672.5(13), which carves out an exception to s. 715.23(1), the Board may only
    permit (as opposed to order) the accused to appear by videoconference. It
    is presumed that the legislature uses words consistently and intentionally. I
    agree with Monahan J.s analysis on this point.

[49]

On a plain reading of ss. 672.5(9), (10) and (13), the right to
    be present implies a physical presence unless the accused consents to a hearing
    by videoconference. Additionally, the Board cannot proceed in the absence of
    the accused unless she has waived her right to be present.

(b)

The Act as a Whole

[50]

The next step involves a consideration of the Act

as a
    whole. The Crown asks us to interpret ss. 672.5(9), (10) and (13) in light of
    ss. 672.81(1), 672.5(2), and 672.53. Subsection 672.81(1) requires the Board to
    hold annual hearings to review dispositions made with respect to an NCR
    accused.
[10]
Subsection 672.5(2) provides that a review hearing may be conducted as
    informally as is appropriate in the circumstances.
[11]
Finally, s. 672.53 provides that any procedural irregularity in relation to a
    disposition hearing will not affect the validity of the hearing itself unless
    the irregularity causes substantial prejudice to the NCR accused.

[12]
I will
    deal with each of these provisions in turn.

[51]

There is no question that the Board must conduct review hearings
    on an annual basis and that this responsibility is a core aspect of its
    jurisdiction over NCR accused persons. Annual review hearings are of paramount
    importance as they allow the Board to ensure that the disposition is
    appropriately calibrated in a manner that balances the liberty interests of the
    accused with the protection of the public.

[52]

However, those hearings must be fair. An annual review hearing
    that proceeds by videoconference, over the objections of the accused, and
    without representation for the accused, cannot be considered fair. In the
    absence of consent of the NCR accused, only Parliament may require accused persons
    to forego the protections currently provided by the
Criminal Code.

[53]

In the present context, the need for fairness is amplified given
    the vulnerability of those under the jurisdiction of the Board. For some NCR
    accused, the forced use of videoconferencing could contribute to anxiety or
    paranoia relating to the use of technology: Community Legal Assistance Society
    (CLAS),
Operating in Darkness: BCs Mental Health Act Detention System,
(Vancouver:
    CLAS, 2017), at p. 135. Here it is important to keep in mind that the use of
    technology in criminal proceedings should be used to enhance access to justice,
    not inhibit it. The court and the Board must remain vigilant about the risk
    that COVID-19 protocols could erode the fairness of the decision-making
    process.

[54]

Presently, there are other ways to accommodate the needs for NCR
    accused people who do not consent to attending their annual hearing virtually. Part XX.1
    contemplates circumstances where this review period can be extended beyond a
    year. Specifically, ss. 672.81(1.1) permits the Board to extend the time for
    holding a hearing by a maximum of twenty-four months in certain circumstances.
[13]
As I return to below, if a public safety issue arises, the accused remains
    under the hospitals supervision. An accused can still be hospitalized without
    their consent pursuant to the
Mental Health Act,
R.S.O. 1990, c. M.7
.

[55]

The Crown also argues that the Boards decision to proceed by video
    was an extension of its authority under s. 672.5(2) to conduct the hearing
    informally where circumstances permit. I am not convinced that this is what
    Parliament had in mind when drafting this provision. In the limited
    jurisprudence surrounding s. 672.5(2), this provision has been used to
    make reasonable accommodations when it comes to information gathering or
    requests on consent of all parties. For example, the Board has invoked s.
    672.5(2) to make informal information requests from the hospital on an urgent
    basis:
R. v. Conception,
2014 SCC 60, [2014] 3 SCR 82, at para. 122.
    It has also been used to permit an NCR accuseds parents to attend an in-person
    hearing by video link with the consent of all parties:
Santia (Re),
[2014]
    O.R.B.D. No. 1051, at para. 9. Permission to operate informally is meant to
    assist the Board in executing its role as an inquisitorial tribunal; it is not
    meant to supersede an accused persons codified rights.

[56]

Finally, I am not of the view that proceeding by video is simply
    a procedural irregularity. The Crown asks this court to find that remote
    hearings do not impact the exercise of the procedural or substantive rights of
    the accused as they allow for meaningful participation. This case does not
    provide the necessary evidentiary record for this court to weigh-in on the
    extent to which a video forum impacts an accuseds substantive and procedural
    rights. However, as alluded to above, I am not prepared to treat the difference
    between an in-person hearing and a videoconference hearing as insignificant. The
    court must be cautious in endorsing such a broad proposition about the rights
    of vulnerable people in a time of crisis. Suffice to say, I am persuaded that the
Criminal Code
treats deviations from in-person hearings as more than
    mere procedural irregularities.

[57]

Turning to the Act

more broadly, it is important to note
    that the Boards jurisdiction is defined and limited by the
Criminal Code
.

The default rule in s. 715.21 of the
Criminal Code
provides that
    a person who appears at, participates in, or presides at a proceeding shall do
    so personally. When read in the context of other provisions in the
Code,
including
    ss. 502.1(1) or 487.01(7), personally in s. 715.21 means that criminal
    proceedings must proceed in the physical presence of the accused.

[58]

In 2019, Parliament enacted the default rule in s. 715.21 as part
    of a series of amendments to the
Criminal Code
that sought to
    modernize criminal procedure and expand the circumstances in which the accused
    and other participants in a criminal proceeding may appear virtually:
An
    Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts
    and to make consequential amendments to other Acts,
(Bill C-75), S.C.
    2019, c. 25, ss. 1(2), 188, 216, 225(2), 290 and 292.

[59]

In the new Part XXII.01, entitled Remote Attendance by Certain
    Persons, Parliament provided a judge or justice the authority to preside over proceedings
    via remote means, and in certain circumstances, to require the accused to
    appear by videoconference. Parliament had the opportunity to expand remote
    appearances to Part XX.1 of the
Criminal Code
to grant the Board
    statutory authority to order an NCR accused to appear by video. Parliament did not
    do so. This may well have been a legislative oversight. However, in the absence
    of an amendment, neither the Board nor this court has the authority to expand
    the Boards jurisdiction beyond the confines of Part XX.1.

(c)

The Purpose of ss. 672.5(9), (10) and (13)

[60]

Turning now to the purpose of the legislation
,
the dual objectives
    of Part XX.1 of the
Criminal Code
are the protection of the
    public and the fair treatment of the NCR accused:
Mazzei v. British
    Columbia (Director of Adult Forensic Psychiatric Services),
[2006] 1
    S.C.R. 326, at paras. 26-29. In furtherance of these twin goals, the Board has
    wide latitude to make orders and conditions binding on the parties before it.

[61]

As noted above, annual disposition hearings are central to this
    legislative scheme. They permit the Board to continuously ensure that the
    appropriate balance is struck between the protection of the public and the
    degree of restrictions on the liberty of the NCR accused.

[62]

It is up to Parliament to define the outer limits of the Boards
    jurisdiction when it comes to the balance between the accuseds procedural
    rights and the need for expediency. The statute is clear: there was no
    jurisdiction here.

[63]

There are practical implications for this interpretation, but they
    do not rise to the level of absurdity. As Monahan J. observed at para. 42, the
    Board is entitled to delay its in-person hearings until it is appropriate to convene
    in person or it can do so in a safe manner. However, assuming an in-person
    hearing was truly impracticable, the proper way forward would have been to
    grant adjournments when an accused does not consent to a video hearing. As
    noted above, s. 672.81(1.1) of the
Criminal Code
accounts for
    irregularities in the timeline of annual dispositions. While this is by no
    means a long-term solution, it is up to Parliament to carve out an exception to
    the default rule entitling people under the Boards jurisdiction to in-person
    hearings.

[64]

If concerns about the protection of the public arise in the
    interim, it remains open for the hospital to step in. Patients can be brought
    in under the
Mental Health Act
in the event of rapid decompensation. Pursuant
    to ss. 672.81(2) and (2.1), the Board is required to hold a review hearing as
    soon as practicable where the hospital seeks an early review hearing, or when
    the hospital has significantly increased restrictions on the accuseds liberty
    for a period exceeding seven days. The hospital may request an early review
    hearing when there is reason to believe that the current disposition does not
    adequately protect public safety:
Strachan (Re),
2019 ONCA 481,
    at paras. 4-9.

[65]

It is certainly foreseeable that an NCR accused might not consent
    to a video hearing in these circumstances, and that a delay could lead to an
    impractical and potentially dangerous result. But it is the role of the
    legislature, and not the Board, nor this court, to address this potential
    problem.

(d)

Conclusion on the Interpretation of Part XX.1

[66]

In summary, the task of this court was to interpret the relevant
    provisions of Part XX.1 of the
Criminal Code
and determine whether the
    Board acted without statutory authority. I am of the view that the Board failed
    to remain within the proper bounds of its jurisdiction, as conferred by
    statute. I do not see any error in Monahan J.s approach that would
    warrant this courts intervention.

D.

Ms. Woods Appeal of her Disposition Order

[67]

The operation of r. 43.03(5) is automatic. Once counsel for Ms.
    Woods filed and served a notice of application to quash in the Superior Court, r.
    43.03(5) suspended the proceedings before the Board. The Board erred in
    proceeding notwithstanding r. 43.03(5), without first seeking the approval of a
    judge, as is required by r. 43.03(6). Again, the Board does not have the
    authority to unilaterally override clear directions from the
Criminal
    Proceedings Rules for the Superior Court of Justice
.

[68]

The Board's decision to proceed without the NCR accused or her
    counsel raises procedural fairness concerns that might have afforded an
    alternative basis for quashing the decision, but it is unnecessary to decide
    this point given that the Board had no authority to proceed with the hearing in
    any event.

E.

CONCLUSION AND DISPOSITION

[69]

I would dismiss the appeal of the
certiorari
order and
    allow the appeal of the Boards disposition. Further, I would return this
    matter to the Board for a new hearing before a differently constituted panel,
    to be heard as soon as practicable.

Released: March 29, 2021 M.T.

M. Tulloch J.A.

I agree. Grant
    Huscroft J.A.

I agree. Thorburn
    J.A.





[1]
Rules 43.03(5) and (6) provide: (5) Subject to subrule (6), service of a notice
    of application to quash under subrule (2) upon a provincial court judge,
    justice or justices, coroner, or as the case may be, suspends the proceedings
    which are the subject of the application. (6) A judge may, upon service of a
    notice of application therefore in such manner, if at all, as the judge may
    direct, order that the proceedings which are the subject of the application to
    quash shall continue upon such terms as appear just.



[2]
Subsection 672.5(13) provides: If the accused so agrees, the court or the
    chairperson of the Review Board may permit the accused to appear by
    closed-circuit television or videoconference for any part of the hearing.



[3]
Subsection
672.81
(1)
provides: A Review Board shall hold a
    hearing not later than twelve months after making a disposition and every
    twelve months thereafter for as long as the disposition remains in force, to
    review any disposition that it has made in respect of an accused, other than an
    absolute discharge under paragraph 672.54(a).



[4]
Subsection 672.5(10)(a) provides: (10) The court or the chairperson of the
    Review Board may (a) permit the accused to be absent during the whole or any
    part of the hearing on such conditions as the court or chairperson considers
    proper



[5]
One of the members of the panel suffered a sudden illness that prevented him
    from sitting on the Board. The Board lost quorum and was reconstituted as a new
    panel.



[6]
The Law Society later informed counsel that it would not be proper for her to
    participate without instructions.



[7]

Subsection 672.5(9) provides: 
(9)
Subject to subsection (10), the accused
    has the right to be present during the whole of the hearing.



[8]
Subsection 672.5(10)(a) provides: 
(10) The court or the
    chairperson of the Review Board may (a) permit the accused to be absent during
    the whole or any part of the hearing on such conditions as the court or
    chairperson considers proper



[9]

Again, s.
672.5 (13) provides: If the accused so
    agrees, the court or the chairperson of the Review Board may permit the accused
    to appear by close circuit television or videoconference for any part of the
    hearing.



[10]
Subsection 672.81 (1) provides: A Review Board shall hold a hearing not later
    than twelve months after making a disposition and every twelve months thereafter
    for as long as the disposition remains in force, to review any disposition that
    it has made in respect of an accused, other than an absolute discharge under
    paragraph 672.54(a).



[11]
Subsection 672.5(2) provides: The hearing may be conducted in as informal
    a manner as is appropriate in the circumstances.



[12]
Section 672.53 provides: Any procedural irregularity in relation to a
    disposition hearing does not affect the validity of the hearing unless it
    causes the accused substantial prejudice.



[13]
Subsection 672.81(1.1) provides: Despite subsection (1), the Review Board may
    extend the time for holding a hearing to a maximum of twenty-four months after
    the making or reviewing of a disposition if the accused is represented by
    counsel and the accused and the Attorney General consent to the extension.


