



COURT OF APPEAL FOR ONTARIO

CITATION: Campbell (Re), 2018 ONCA 140

DATE: 20180214

DOCKET: C62777

Laskin, Trotter and Fairburn JJ.A.

IN THE MATTER OF: Angela Campbell

AN APPEAL UNDER PART XX.1 OF THE
CODE

Michael Davies and Meaghan McMahon, for the appellant
    Angela Campbell

Barbara Walker-Renshaw and John McIntyre, for the
    respondent the Person in Charge of the Royal Ottawa Mental Health Centre

Rachel Young, for the respondent the Attorney General of
    Ontario

Heard: September 12, 2017

On appeal from the disposition of the Ontario Review
    Board, dated September 14, 2016, with reasons reported at [2016] O.R.B.D. No.
    2393.

Fairburn J.A.:

OVERVIEW

[1]

The appellant was found not criminally
    responsible (NCR) in 2004. She spent her first ten years as an NCR accused in
    the Brockville Mental Health Centre. The Ontario Review Board then ordered that
    she be transferred to the Royal Ottawa Mental Health Centre (the Royal) and
    detained within their Secure Forensic Unit. She started abusing substances,
    ingesting alcohol, cocaine, and amphetamines, about six months after being
    placed in one of the Royals two secure units. In an effort to control her
    behaviour, the Royal removed some of her privileges and eventually moved her from
    one secure forensic unit to a more secure forensic unit.

[2]

Although s. 672.56(2) of the
Criminal Code
requires
    that the Board be notified of significant increases in restrictions on liberty
    that remain in force for a period exceeding seven days, it was about two months
    before the Royal notified the Board of the appellants transfer between secure units.
    At the restriction of liberty hearing that followed under s. 672.81(2.1), the appellant
    argued that the delay in notification resulted in a s. 7
Charter
breach
    and a s. 24(1) remedy was due.
[1]


[3]

The Board divided on whether notice was required,
    with the majority concluding that it was not. Having come to this conclusion,
    it was unnecessary for the majority to consider the appellants
Charter
arguments.
    The Board went on to unanimously conclude that, regardless of whether notice
    was required or not, the Royals decision to transfer the appellant between
    units was the least onerous and least restrictive measure available in the
    circumstances.
[2]


[4]

The appellant raises four grounds of appeal.

[5]

The primary ground focuses on whether the Royal
    should have notified the Board about the change in the appellants liberty
    status in accordance with s. 672.56(2) of the
Criminal Code
:

672.56(2) A person who increases the restrictions on
    the liberty of the accused significantly pursuant to authority delegated to the
    person by a Review Board shall

(b) give notice of the increase as soon as is
    practicable to the accused and, if the increased restrictions remain in force
    for a period exceeding seven days, to the Review Board.

[6]

The parties maintain that there is significant ambiguity
    over how to apply s. 672.56(2) and, in particular, how to identify restrictions
    on liberty rising to the level of requiring notice to the Board. They ask for
    guidance on this point. As will be explained, although there are some types of increases
    in restrictions on liberty that will almost invariably result in the
    requirement for notice to the Board, the question of notice must be approached
    on a case-by-case basis, having regard to the NCR accuseds liberty status both
    before and following the restrictions imposed.

[7]

Applying the analytical framework explained
    below, I conclude that there was no need for notice in this case. As the second
    and third grounds of appeal pertain to
Charter
issues arising from the
    alleged failure to notify, there is no need to address them.

[8]

The final ground of appeal concerns the Boards
    conclusion that transferring the appellant between units constituted the least onerous
    and least restrictive measure available in the circumstances. I see no error in
    the Boards approach to this issue.

[9]

Accordingly, I would dismiss the appeal.

BACKGROUND FACTS

[10]

What follows is a brief overview of the factual
    backdrop for this appeal.

[11]

The appellant has a long history with mental
    illness. She has been under the jurisdiction of the Board since June 2, 2004
    when she was found NCR at the age of twenty. A 2015 report to the Board suggests
    that she has a history of decompensations involving persecutory and grandiose
    delusions, hypersexuality, disorganized thought process, rapid mood
    fluctuations, disorganized speech, impulsive and dangerous behaviours,
    pressured speech, and flight of ideas. She is currently diagnosed with
    schizoaffective disorder, bipolar type in remission, substance abuse disorders,
    and antisocial and histrionic personality disorders. She has demonstrated a
    lack of remorse and what one of her psychiatrists refers to as impulsivity,
    aggressiveness and a disregard for the safety of others.

[12]

In December 2014, the Board concluded that the
    appellant had met a therapeutic impasse at the Brockville Mental Health Centre.
    The Board ordered that she be transferred to the Royal and detained within their
    Secure Forensic Unit. The Boards disposition included privileges up to and
    including residing in the community in an accommodation approved by the person
    in charge of the hospital. The appellant was also ordered to abstain absolutely
    from the non-medical use of drugs and alcohol.

[13]

The Royal has two secure forensic units: the
    secure forensic rehabilitation unit (FRU) and the secure forensic assessment
    unit (FAU). There is no dispute that the FAU is the more secure of the two secure
    units.

[14]

The appellant was transferred to the Royal in
    January 2015. She was originally placed in the FRU. Starting in May, her
    clinical team detected a pattern of alcohol and drug consumption. The appellant
    appeared to be obtaining alcohol and drugs while on passes to the hospital
    grounds. Although the record reveals little clarity around what privileges the
    appellant had been extended while on the FRU, it is clear that the Royal removed
    some privileges to control her consumption of illicit substances. While the
    privileges were removed and reinstated a few times, the appellant continued to
    access drugs and alcohol, even when completely confined to the FRU. In late
    August 2015, in an effort to control her consumption of drugs and alcohol, she
    was transferred to the FAU.

NOTICE TO THE BOARD AND THE RESTRICTION OF LIBERTY HEARING

[15]

The appellants counsel wrote to the Royal about
    six weeks following her move to the FAU. He suggested that there had been a restriction
    of liberty requiring the hospital to notify the Board. Eight days later, on
    October 21, 2015, the Royal sent a letter to the Board notifying it that a restriction
    of the liberty of the accused [had] been increased significantly for a period
    exceeding seven days. The Royal maintains that it provided this notice
    strictly as a precautionary measure, and denies that notice was statutorily
    required.

[16]

The Board responded by scheduling a restriction
    of liberty hearing at the same time as the appellants pending annual review. The
    restriction of liberty hearing was later adjourned. Despite the appellant being
    transferred back to the FRU in January 2016, the restriction of liberty hearing
    eventually went ahead, commencing in May 2016.

THE DECISION UNDER APPEAL

[17]

In accordance with the manner in which the legal
    issue was argued before the Board, its reasons for decision largely focus on
    whether the transfer from the FRU to the FAU triggered the notice requirement under
    s. 672.56(2).

[18]

In concluding that there was no need for notice,
    the majority emphasized that the decision to transfer was a treatment one,
    arising from an effort to control the appellants consumption of illicit substances
    that posed a risk to her mental health. Although the majority acknowledged that
    there were differences in the security arrangements between the FRU and the
    FAU, differences that I will review later, it highlighted that they were both
    secure units. As the appellant was at the point where she needed one-on-one supervision
    on the FRU, the majority concluded that moving her to the FAU actually resulted
    in a less restrictive environment.

[19]

The minority judgment narrowed in on the
    question of notice, specifically rejecting treatment as a justification for
    not giving s. 672.56(2) notice. The minority concluded that notice of the
    appellants transfer to the FAU should have been given to the Board and that the
    failure to do so in accordance with s. 672.56(2) resulted in a s. 7
Charter
breach. Although the minority was sensitive to the fact that individuals
    have different levels of privileges available to them on the FRU, it concluded
    that a transfer to the FAU meant a total loss of privileges. While the minority
    did not order a specific remedy, it noted: It would be of assistance to the
    accused, the ORB and ultimately the hospital if a policy was put into place
    which identified any changes to privilege levels which had the potential to
    exceed 7 days and which was also potentially a significant restriction on the
    liberty of the accused.

[20]

Despite its division on notice, the Board was
    unanimous that the appellants move to the FAU was necessary and appropriate in
    the circumstances.

ISSUES AND ANALYSIS

(a)

Overview

[21]

I will deal with the issues in the following
    order. I will first consider preliminary matters related to whether the appeal is
    moot and the standard of review. I will then discuss the analytical approach to
    identifying a significant increase in restrictions on liberty, such that notice
    under s. 672.56(2) is required. This approach draws heavily on the broader
    statutory and common law context in which the notice provision exists. I will
    then apply this analytical approach to the factual circumstances of this case.

[22]

Finally, I will consider the appellants submission
    that the Board erred by concluding that the approach taken by the Royal
    constituted the least onerous and least restrictive measure available in the
    circumstances.

(b)

Mootness

[23]

The appellant was transferred back to the FRU in
    January 2016, long before the restriction of liberty hearing was held. There is
    therefore no live controversy between the parties and the appeal is moot:
Borowski
    v. Canada (Attorney General)
, [1989] 1 S.C.R. 342,

at p. 353. Although
    the issue on appeal has been moot for some time, the Royal and the Attorney
    General do not oppose this court exercising its discretion in favour of
    deciding the matter. It is an appropriate case in which to do so for three reasons.

[24]

First, the appeal raises an important question
    about when the Board must be notified of a change in the liberty status of an
    NCR accused. The answer to this question is important to various groups,
    including NCR accused, hospitals entrusted with their care, and the Board.

[25]

Second, bearing in mind the fluidity with
    which decisions that result in the granting and restricting of liberty
    interests take place, it can be difficult to have appeals from restriction of
    liberty hearings resolved while the impugned restrictions remain in effect.
    Where matters are evasive of review because of the speed at which they move,
    it is sometimes appropriate to hear them although they have become moot:
Mazzei v. British Columbia (Director of Adult Forensic Psychiatric
    Services),
2006 SCC 7, [2006] 1 S.C.R. 326, at
    para. 15; and
Borowski
, at p. 360.

[26]

Finally, the meaning of s. 672.56(2) is likely
    to arise again. Having been fully argued, the court is well positioned to
    determine the legal issue:
Starz (Re)
,

2015 ONCA 318, 125 O.R. (3d) 663,
    at paras. 53-54, leave to appeal refused, [2016] S.C.C.A. No. 459. I agree that
    mootness should not stand in the way.

(c)

Standard of Review

[27]

The standard of review of a Board decision is
    mandated by s. 672.78 of the
Criminal Code
. This court may interfere
    only where the decision is unreasonable and cannot be supported by the
    evidence, is based on a wrong decision on a question of law, or gives rise to a
    miscarriage of justice. The standard of reasonableness applies to findings of
    facts and the drawing of inferences. The Boards disposition can be considered
    unreasonable when it is not supported by reasons that can bear even a somewhat
    probing examination:
Mazzei,
at para. 17;
Saikaley (Re)
,
    2012 ONCA 92, 109 O.R. (3d) 262
,
at para. 35. The standard of
    correctness applies to determinations of law:
M.L.C. v. Ontario (Review
    Board)
,

2010 ONCA 843, 104 O.R. (3d) 450, at para. 21. Deference
    applies where exercises of discretion by the expert Board are involved:
Saikaley,
at para. 36.

[28]

The meaning of a significant increase in
    restrictions on liberty is a question of law and must be determined on the
    standard of correctness. A reasonableness standard drives the review of the
    Boards decision regarding whether the liberty restrictions placed on the
    appellant constituted the least onerous and least restrictive measure in the
    circumstances.

(d)

The Meaning of Significantly Increasing Restrictions on Liberty

(i)

Parties Positions

[29]

When interpreting the meaning of s. 672.56(2),
    the appellant emphasizes that we ought not to lose sight of the fact that it is
    only a notice provision. She argues that notice to the Board of increases in restrictions
    on liberty constitutes a critical statutory safeguard for the NCR accuseds
    liberty. Accordingly, the appellant maintains that any decision that has a
    meaningful or not insignificant impact on the liberty of an NCR accused requires
    notice. The appellant rejects the proposition that characterizing something as
    treatment excuses the need for notice.

[30]

The Royal responds that imposing a notice
    requirement in the wake of any hospital decision that has a meaningful impact
    on liberty sets the notice bar too low. The Royal maintains that Parliament
    must have had in mind a high threshold when it inserted the word significantly
    into the notice provision. The hospital urges the court to adopt an
    interpretation that gives the word significantly a robust meaning, which
    respects the distinct roles of the Board and hospitals.

[31]

The Attorney General for Ontario submits that
    where a decision is made outside the range of daily adjustments required to
    fine tune the accuseds liberty in accordance with the trajectory expected at
    the previous annual Board hearing, the threshold for notice under s. 672.56(2)
    will be met. Crown counsel maintains that the expected trajectory can be
    gleaned from the Boards dispositions and written reasons for those
    dispositions.

[32]

Although none of the parties positions provides
    a complete answer to how s. 672.56(2) should be approached, each offers
    valuable input into how the analytical approach should evolve. For instance, I
    agree that the notice provision must be seen as an important liberty safeguard;
    that whatever the test for notice, it must be one that respects the dual roles
    of the Board and hospitals; and that the NCR accuseds liberty must be
    considered within the context of his or her clinical progress.

(ii)

The Current Approach to Notice

[33]

The parties agree that, as it currently stands,
    hospitals are without clear guidance on when notice to the Board of a significant
    increase in restrictions on liberty is required.

[34]

The appellant and the Royal point to Board decisions
    that they maintain reveal a divergence of opinion on what constitutes a
    significant increase in restrictions on liberty. They contrast cases where the
Board has concluded that revocations of
    community access privileges have resulted in a need for notice,
[3]
with those where the Board
    has come to a different conclusion.
[4]
They contrast cases where transferring a person from one secure setting to
    another has not resulted in the need for notice,
[5]
with those where moving someone from a general to secure unit, or secure to near
    or complete seclusion, has resulted in the need for notice.
[6]

[35]

In an effort to achieve some consistency in the
    approach to notice, the Forensic Directors Group of Ontario has developed a
    document entitled: Restriction of Liberty Notification Guidelines. Steve
    Duffy is the Director of the Royals Patient Care Service for Forensic
    Inpatients and Integration. He testified at the hearing in this case that he attends
    meetings of the Forensic Directors Group of Ontario. The group is comprised of
    ten hospitals that have forensic programs. Mr. Duffy testified that the group
    developed these Guidelines to identify those situations where notice under s.
    672.56(2) should be given.

[36]

The Guidelines set out three categories of
    situations. The first category describes what will be considered a Restriction
    of Liberty and reported to the Board. Only two situations are included in this
    category: (1) a transfer from a general level of security to a secure level for
    a period lasting longer than 7 days; and (2) withdrawal of permission to live
    in the community for a period lasting longer than seven days. Mr. Duffy
    testified that because the appellant did not fit within one of these
    categories, notice was not required.

[37]

The second category describes what will
not
be considered a Restriction of Liberty, but will be
    reported to the ORB for their information only (emphasis in original). This
    category involves three situations: (1) where the patient has been secluded for
    a period exceeding 7 days; (2) where the patient has been living in the
    community, but voluntarily agrees to an inpatient admission; and (3) where the
    patient is living in the community on a conditional discharge, but is
    involuntarily admitted to the hospital under the
Mental Health Act
,
    R.S.O. 1990, c. M.7.

[38]

The final category involves what will
not
be considered a Restriction of Liberty, and will
not
be reported to the ORB (emphasis in original). This
    category explicitly excludes one type of situation from the requirement for notice:
    a significant reduction in hospital or town privileges of an inpatient, even
    if for a period exceeding 7 days.

[39]

The categorical approach set out in the Guidelines
    conflicts with some of the Boards prior jurisprudence. For instance, the Guidelines
    suggest that there is no restriction of liberty where an NCR accused is secluded
    for more than seven days (conflicting with
Ince
,
Jardine
,
Hazzard
, and
Huang
). The Guidelines also suggest that there is no
    restriction of liberty where an NCR accused loses his or her community
    privileges (conflicting with
Ly
and
Kelly
).

[40]

While the Forensic Directors Guidelines demonstrate
    a responsible desire to achieve some consensus about when notice to the Board is
    required under s. 672.56(2), this type of categorical approach risks both
    undershooting and overshooting the statutory mark. For instance, one can
    imagine situations where a significant reduction in hospital or town privileges
    may result in a significant increase in restrictions on liberty. An NCR accused
    who has been permitted to return to stay at her family home for 72 hours every
    weekend for a lengthy period of time may well experience a significant increase
    in restrictions on her liberty if this privilege is revoked. Yet the Forensic
    Directors Guidelines suggest that this type of restriction will not be
    reported.

[41]

By way of another example, an NCR patient who is
    detained on a general unit, but is confined to her room and subject to one-on-one
    security in that unit, may experience a significant restoration of liberty if
    she were moved to a more secure unit, but become free of minute-to-minute
    oversight. Yet, the Forensic Directors Guidelines require notice based on the
    mere fact of a transfer from a general to secure unit, despite the restoration
    of liberty that might result. Indeed, the fact that a secure hospital setting
    may sometimes serve to increase an NCR accuseds liberty interests was
    commented upon in
Penetanguishene Mental Health Centre v. Ontario (Attorney
    General)
, 2004 SCC 20, [2004] 1 S.C.R. 498
,
at para. 34 (
Tulikorpi
):
    a severely restricted NCR accused might find more programs and amenities
    accessible within the secure perimeter at [a hospital] than at a less secure
    hospital where he might be restricted to the ward he is placed in.

[42]

The number of permutations and combinations of
    possibilities impacting liberty are impossible to calculate. Each NCR accused
    is unique, with complex individual needs that must be accommodated in the
    context of a complex hospital setting. Accordingly, while certain types of
    restrictions on liberty will act as likely predictors of the need for notice, an
    individualized assessment is called for in each case.

[43]

The approach to this assessment is tied to a
    proper understanding of the notice provision and its place within the broader
    legislative context.

(iii)

The Principles of Statutory Interpretation

[44]

The principles of statutory interpretation are
    well-settled. The words of a provision 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 Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at
    para. 26; and
Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27,
    at para. 21, quoting E. A. Driedger,
Construction of Statutes
(2nd
    ed. 1983), at p. 87.

[45]

These principles guide the interpretative
    approach in this case.

(iv)

What is the grammatical and ordinary meaning
    of s. 672.56(2)?

[46]

Recall that s. 672.56(2) reads: A person who
increases
    the restrictions on the liberty of the accused significantly
pursuant to
    authority delegated to the person by a Review Board shall  give notice to the
    Board if the
increased restrictions
remain in force for a period
    exceeding seven days (emphasis added). The Boards jurisprudence reveals that
    the words significantly and increases are often left unmentioned when considering
    s. 672.56(2). For instance, the decisions often speak in terms of a
    significant restriction of liberty or a restriction of liberty.
[7]
Indeed, in this very case,
    the Boards ultimate disposition reads: the actions of the hospital did not
    amount to a significant restriction of liberty as contemplated by section
    672.56(2).

[47]

It is neither a restriction on liberty nor a significant
    restriction on liberty that triggers the need for notice. While perhaps
    awkwardly phrased, s. 672.56(2) directs its attention to
significant
    increases
in restrictions on liberty. As the Attorney General points out,
    the word significantly acts as an adverb, modifying the verb increases. The
    object to which the modified verb relates is restrictions on the liberty of
    the accused.

[48]

When the words significantly and/or increases
    are left out of the notice equation, the meaning of s. 672.56(2) is
    fundamentally altered. The use of the words significantly and increases
    focus the s. 672.56(2) notice provision on the escalation of restrictions on
    liberty relative to what they were before the hospital decision was made. When
    s. 672.56(2) is afforded its proper grammatical and ordinary meaning, the
    provision focuses on two points in time: (1) the NCR accuseds liberty status
    before the increase in restrictions; and (2) the NCR accuseds liberty status
    after the increase in restrictions.

[49]

I now turn my attention to the word
    significantly and, in particular, how significant the increase in restrictions
    on liberty must be in order to require that the Board be notified. The answer
    to this question lies in the context in which s. 672.56(2) resides.

(v)

What is the entire context for the notice
    provision?

[50]

I agree with the appellant that notice under
    s. 672.56(2) provides an important safeguard for liberty. This court has characterized
    the notice provision in exactly this way in the past:
M.L.C.
,

at
    para. 24; and
Saikaley
, at para. 68. This does not mean, though, that the
    notice provision contained in s. 672.56(2) is the only liberty safeguard
    afforded to NCR accused. There are many liberty safeguards in place and the need
    for notice to the Board of an increase in restrictions on liberty must be
    construed against this backdrop.

[51]

Part XX.1 of the
Criminal Code
is a
    statutory scheme that assigns specific roles to the Board and hospital. Both of
    these expert bodies are obligated to make decisions with the NCR accuseds
    liberty interests front of mind.

[52]

The Boards oversight of an NCR accused is
    governed by its overriding need to safeguard liberty as much as possible, while
    having regard to its paramount focus  the safety of the community. As noted in
R. v. Conway
,

2010 SCC 22, [2010] 1 S.C.R. 765, at para. 88, an
    NCR patients liberty interest has been held to be the Boards major
    preoccupation within the fence posts staked by public safety. See also:
Pinet
    v. St. Thomas Psychiatric Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at
    para. 19.

[53]

Throughout its interaction with the NCR accused,
    the Board is governed by the need to afford the NCR accused the utmost liberty
    compatible with his or her situation. This requires the imposition of the
    least onerous and least restrictive disposition possible in the circumstances:
Winko v. British Columbia (Forensic Psychiatric Institute),
[1999] 2 S.C.R. 625
,
at para. 42.

[54]

Consistent with the Boards need to safeguard
    liberty as much as possible, the conditions included in Board dispositions must
    also conform to the least onerous and least restrictive standard:
Tulikorpi
,

at paras. 44-45, 51-52;
Winko
,

at paras. 16, 71, and at
    paras. 148, 165, per Gonthier J.; and
Mazzei
,

at paras.
    27-28.

[55]

Another important liberty safeguard rests in the
    statutory requirement for a yearly review under s. 672.81(1). This means that,
    without consent, an NCR accused never goes longer than twelve months before the
    Board receives an update on the NCR accuseds progress. The yearly review
    allows the Board to assess the NCR accuseds course over the past year and
    determine how best to address his or her needs for the next year, with the
    ultimate goal always being reintegration of the individual into the community.

[56]

In between Board reviews, the hospital takes
    over. As a practical matter, the hospital must be granted sufficient latitude to
    deal with the predictably unpredictable nature of mental illness, the daily
    fluctuations that occur, and the responses required in the multifaceted institutional
    settings where NCR patients often reside. As noted in
Tulikorpi
,

at
    para. 69, there is a day-to-day fine-tuning that must take place to keep
    patients and staff safe, and to deliver care. Each NCR accused is unique and
    each brings his or her clinical strengths and challenges. Needs will constantly
    vary and the hospital will have to be at the ready to respond. It is essential
    that hospitals be provided with sufficient flexibility to respond to patient
    needs:
M.L.C.
, at para. 28.

[57]

To ensure that patient needs are met in between
    yearly reviews, the Board has jurisdiction under s. 672.56(1) to delegate to
    the person in charge of the hospital the authority to make decisions
    increasing and decreasing restrictions on liberty within any limits and
    subject to any conditions set out in that disposition. Decisions made under
    this delegated authority are deemed for purposes of [the
Criminal Code
]
    to be a disposition made by the Review Board. Accordingly, between yearly
    reviews, the hospital is entrusted with implementing the Boards disposition.

[58]

This does not mean, though, that the hospital exercises
    unbridled authority between yearly Board reviews. Leaving aside the presumption
    of expertise, competence, and professionalism of the attending hospital staff
    working in the area of mental health, when the hospital makes decisions under
    the Boards delegated authority, it is bound to stay within the envelope of
    conditions provided in the Boards disposition, an envelope set with the major
    preoccupation of liberty in mind.

[59]

The hospitals decision-making power is further
    constrained by the same legal considerations that bind the Board in arriving at
    an appropriate disposition. Like the Board, keeping in mind the paramount concern
    for public safety, the hospital must make decisions that provide an NCR accused
    with the utmost liberty compatible with his or her situation. The hospital must
    remain vigilant about interfering with liberty interests as little as possible,
    making decisions that are the least onerous and least restrictive to the NCR
    accuseds liberty:
M.L.C.
, at paras. 28, 43-45; and
Chaudry (Re)
,
    2015 ONCA 317, 125 O.R. (3d) 641,

at para. 72. This requirement acts
    as yet another important liberty safeguard for the NCR accused.

[60]

There are other safeguards too. For instance, s.
    672.81(2) allows the hospital to ask for a hearing to review a disposition
    under s. 672.54(b) or (c). A hearing is mandatory in these circumstances.
    Section 672.82(1) also allows the Board to hold a hearing to review any of its
    dispositions at any time on its own motion or pursuant to the request of the
    NCR accused or any other party. Although an NCR accused who asks for a hearing
    under s. 672.82(1) is deemed to abandon any appeal he or she may have
    outstanding under s. 672.72, there is nothing to prevent the NCR accused who
    feels aggrieved by a hospital decision from at least bringing it to the Boards
    attention and seeking redress:
R. v. Petroniuk
, 2014 ONSC 6951, at
    paras. 23-24.

[61]

Together, these liberty safeguards, embedded in
    the Part XX.1 statutory scheme and interpreted by the common law, combine to
    provide a robust system of protection for an NCR accuseds liberty. It is
    against the backdrop of all of these protections that s. 672.56(2) notice must
    be understood.

(vi)

How significant is significantly?

[62]

When notice is given by the hospital under s.
    672.56(2), a mandatory s. 672.81(2.1) restriction of liberty hearing results. Setting
    the notice bar too high risks sacrificing the liberty interests of a
    particularly vulnerable group of people, ones who have committed criminal acts,
    but who bear no criminal responsibility for those acts  people who are as
    entitled to as much liberty as the next person, but for the safety risk they
    present to the public.

[63]

At the same time, setting the notice bar too low
    will not only result in unnecessary mandatory hearings under s. 672.81(2.1),
    but could interfere with the fundamental work of institutions that administer
    care to NCR patients. Section 672.56(2) is not intended to transform the Board
    into a body that second-guesses all or even most hospital decisions that
    adversely impact liberty. After all, the expert Board delegates to expert hospitals
    the power to adjust liberty up and down as called for. This delegation is done
    with confidence that the hospital, which is entrusted with the NCR accuseds
    care between annual reviews, will act professionally, ethically, and in
    accordance with the guiding legal authorities. Hospitals must be left to do their
    work free from constant review and all of the demands that a
    decision-notice-review-decision-notice-review approach would impose.

[64]

Considering these constraints and the contextual
    framework within which s. 672.56(2) notice operates, the word significantly
    must be granted its proper due. As previously reviewed, the NCR accuseds
    liberty is attended to in a multitude of ways. Considered in its proper
    context, then, the purpose of s. 672.56(2) is to act as a final liberty
    safeguard, allowing for a second-look at those hospital decisions that have such
    serious ramifications for the liberty of the NCR accused, that they should be
    examined ahead of the next yearly review.

[65]

This approach requires that the hospital
    consider the NCR accuseds liberty status both before and after decisions that
    result in increased restrictions on liberty. At the first stage, the NCR
    accuseds liberty norm must be identified. Calibrating the liberty norm
    requires consideration of the duration and pattern of liberty the NCR accused
    was experiencing before the decision or decisions resulting in increased restrictions
    on liberty. Determining the liberty norm does not ask what the individual may
    have been entitled to, but what he or she was actually experiencing before the
    increased restrictions were put in place. The liberty must be of sufficient
    duration to have become, objectively speaking, the NCR accuseds norm.

[66]

The pre-existing liberty norm cannot always be
    determined by looking to the very moment before a decision is made that results
    in increases in restrictions on liberty. Decision by decision, an NCR accuseds
    liberty interests may be whittled away over a period of time. While any one
    decision may not result in a significant increase in restrictions on liberty,
    all of the decisions combined may have this effect. Accordingly, when
    determining the NCR accuseds liberty norm, hospitals should take a contextual
    approach, one that considers the individuals pattern of liberty in the recent
    past.

[67]

Once the liberty norm is determined, it must be
    compared against the NCR accuseds liberty status following the increases in
    restrictions. Only where the change in liberty status clearly deviates from the
    NCR accuseds liberty norm must the hospital notify the Board. The change in
    liberty status must be so significant that a reasonable person, considering all
    of the circumstances, would think that the Board should be called on to consider
    whether the hospital properly applied the least onerous and least restrictive
    test ahead of the next annual review.

[68]

As with all tests, over time, jurisprudence will
    breathe life into this analysis. Certain circumstances will emerge which, by
    their very nature, will suggest a significant enough increase in restrictions
    on liberty that they will point toward the probable need for notice. For
    instance, if an NCR accused has been living in the community or afforded
    significant community access for long enough that it has become the
    individuals liberty norm, then removal of these privileges for more than seven
    days will almost invariably result in the need for notice. Equally, where an
    NCR accused residing in a general unit and accessing multiple privileges is placed
    in a secure unit or in isolation for more than seven days, this will almost
    always trigger the need for notice. These are only examples. While Board
    decisions and appeals can drive the application of the test, an individualized
    assessment is still required in each case.

[69]

Moreover, I agree with the appellant that, when the
    hospital is in doubt, notice should be given. Indeed, based on the Forensic
    Directors Guidelines, it appears that hospitals are already providing notice,
    even where they conclude that they are under no obligation to do so. This kind
    of responsible notice is encouraged. While notice under s. 672.56(2) will generate
    an automatic review under s. 672.81(2.1), it is always open to the hospital to
    simply inform the Board about a decision that has changed the NCR accuseds
    liberty status. This kind of notification would be by way of information only
    and not constitute official notice under s. 672.56(2), thereby avoiding an
    automatic hearing. Having received such information, if the Board deems it
    appropriate to hold a hearing, the Board has discretion to do so under s.
    672.82(1) and (1.1):
Petroniuk
,

at para. 26.

(vii)

Applying the Test to this Case

[70]

The appellant was declared NCR in 2004. When the
    Board ordered that the appellant be transferred to the Royal in January 2015,
    it specified that she be detained within the Secure Forensic Unit, but did
    not distinguish between the rehabilitation (FRU) and assessment (FAU) units.

[71]

The FRU has a single locked door controlled at
    the nurses station. The FAU has triple locked doors, two of which are
    controlled by security personnel.

[72]

On the FRU, privileges are extended based on clinical
    decisions about patient needs and threats. If the patients situation permits,
    it is possible to have a cell phone, internet access, unsupervised visits with
    guests and family, and food ordered in each night. Visitors may come and go in
    accordance with permission granted. Those living on the FRU may also be granted
    off-unit privileges, including to the hospital grounds and, where appropriate,
    the community for short times.  However, medical staff may restrict the
    patients privileges on the FRU to essentially nothing.

[73]

According to Dr. Watts, a psychiatrist working
    at the Royal, if an individual has had their off-unit privileges revoked for
    more than a week or two on the FRU, the medical team considers moving the
    person to the FAU.

[74]

Those detained in the FAU have fewer available privileges.
    Although they may have access to music devices, such as iPods, they are not
    permitted to have cell phones. While computers are provided, patients cannot
    obtain unsupervised internet access. Visits are supervised. Patients are not permitted
    onto the general hospital grounds or into the community, but have a yard with a
    wall around it dedicated to their use. Although a healthy canteen comes into
    the unit, there are restrictions on how often patients are permitted to order
    food. Visits with family and friends may only take place with a staff member
    present.

[75]

Things appeared to go well for the appellants
    first number of months detained on the FRU. However, a report to the Board
    suggests that by May 2015 there were consistent reports of alcohol, cocaine,
    amphetamine, and other drug use whenever [the appellant] was given off-ward
    privileges. The appellant continually violated the Boards requirement that
    she refrain from the consumption of illicit drugs and alcohol.

[76]

After each incident of alcohol or drug
    ingestion, the Royal would restrict the appellants privileges in an effort to
    modify her behaviour and avoid further decompensation of her mental status. The
    appellant entered into a cycle of having her privileges revoked and returned. Despite
    the Royals efforts, the appellant continued to have alcohol and drugs in her
    system throughout the summer of 2015. In July, she was found intoxicated after
    an excursion to the hospital grounds. In early August, her urine tested
    positive for amphetamines. On one occasion she managed to obtain alcohol while
    confined to the FRU.

[77]

Dr. Ward was the appellants treating
    psychiatrist while she was in the FRU. Although there is no clarity around
    exactly what privileges the appellant had during her time in the FRU, it is
    clear that she at least had some access to the general hospital grounds and may
    have been permitted to enter the community to visit with her mother and/or a
    friend. It is unclear whether she was permitted an overnight visit with her
    mother. In one part of the Royals December 2015 report to the Board, there is
    reference to the fact that the appellant had successful overnight passes to
    her mothers house without issue. Elsewhere, the same report refers to the
    fact that the appellant had not spent more than 22 days outside of the hospital
    since she was placed on a detention order some years earlier in 2004.

[78]

The appellant was transferred to the FAU in late
    August 2015. Dr. Ward testified that by that time, all of the appellants
    privileges on the FRU had already been removed. In Dr. Wards opinion, the
    appellants cravings for drugs and alcohol were so strong that the only way to
    have kept her on the FRU would have been to detain her in her room with
    one-on-one security. According to Dr. Ward, this would have restricted the
    appellant from pretty much everything she had, and may have been more
    restrictive of her liberty than detaining her in the FAU.

[79]

Dr. Watts, the appellants receiving
    psychiatrist in the FAU, explained that creating an environment where the
    appellant could be kept free of alcohol and drugs was essential to prevent an
    escalation in her behavior, including violent conduct and eventual
    decompensation of her schizoaffective disorder.

[80]

There is no suggestion that the Royal acted outside
    of the envelope of conditions provided in the appellants disposition. Indeed, while
    I recognize the appellants difficulties with substance abuse, it was she who
    breached the dispositions conditions, by breaching the order that she abstain
    absolutely from the non-medical use of alcohol, drugs and any intoxicants.

[81]

While I accept the fact that the hospitals
    decisions were made in an effort to protect the appellants well-being, I
    reject the majority view that the fact that these decisions could be described
    as treatment justified a lack of notice. I agree with the minoritys position
    that treatment can result in a significant increase in restrictions on
    liberty. Like the minority, I agree that whether a change to an NCR accuseds
    liberty norm is for treatment or not does not answer whether it constitutes a
    significant increase in restrictions on liberty.

[82]

When before the Board, the appellant argued that
    it was the transfer from the FRU to the FAU that caused the significant
    increase in restrictions on liberty. Before this court, the appellant expanded
    her argument to include the removal of privileges ahead of her transfer between
    units. While I accept that in determining the appellants liberty norm, the
    removal of privileges in the time-period proximate to the transfer can be taken
    into account, the record does not reveal with any precision what privileges she
    was enjoying while detained on the FRU.

[83]

This complicates the calibration of her liberty
    norm  the first stage of the requisite analysis. Although she was transferred
    to a more secure unit when she went to the FAU, the question is not whether she
    had a potential for more liberty in the FRU, but whether she was actually
    experiencing a significantly enhanced form of liberty while there.

[84]

Although it is clear that she must have had some
    grounds privileges while living on the FRU  her access to alcohol and drugs on
    the grounds being the best indication  there is little information about how
    she was living on the FRU. Mr. Duffy had not read the appellants chart. He
    could only testify that he believed that she had hospital, grounds, and
    community access. Dr. Watts confirmed that she was obtaining illicit substances
    while on the hospital grounds. He could not recall exactly what frequency she
    was able to go off the ward, but testified to the typical situation. He
    explained that although the appellant had off-ward privileges at some points:

[I]t changed depending on each relapse. Dr. Ward would restrict
    a privilege for a day or two or perhaps a few days and then she would get them
    back again when she was showing good behaviour again; but it was happening very
    frequently over a period of time.

[85]

Dr. Wards testimony was consistent with that of
    Dr. Watts. Dr. Ward agreed that the appellant would exercise privileges for a
    number of weeks, do well, take drugs or alcohol, and then the privileges would
    be taken away for a few days.

[86]

None of the three witnesses who testified from
    the Royal, Mr. Duffy, Dr. Watts or Dr. Ward, believed that the appellant had
    been subjected to a significant increase in restrictions on liberty. While the
    appellant correctly points out that notice was ultimately given under s.
    672.56(2), the hospital argues that nothing should be taken from this fact.
    According to the hospital, the notice was provided only in response to the
    appellants request that notice be given and out of an abundance of caution.

[87]

Dr. Watts and Dr. Wards testimony at the
    hearing provides the clearest information about the appellants liberty status
    while on the FRU, prior to her transfer to the FAU. It appears that she found
    herself in a cycle of having her grounds privileges revoked and reinstated
    based on her problems with substance abuse.

[88]

Although the evidence demonstrates that those
    living on the FRU have certain privileges available to them, the privileges are
    extended only based upon a clinical assessment. The Royal maintains that there
    was no evidence before the Board as to what privileges the appellant had been
    extended. At its highest, I find that it is unclear what privileges were
    extended to the appellant before her transfer to the FAU and, therefore, it remains
    unclear what her liberty norm was prior to being confined on the FRU and then
    transferred to the FAU. If she had such privileges, they were not consistent,
    having been removed multiple times when she was found to have ingested drugs
    and alcohol.

[89]

Moreover, even assuming the appellants pre-existing
    liberty norm in the period of time proximate to her move to the FAU included
    multiple visits to the grounds every day, and perhaps some community visits
    with her mother, there is little known about her actual liberty status after being
    transferred to the FAU  the second stage of the requisite analysis.

[90]

In these circumstances, comparing the
    appellants pre-existing liberty norm with her liberty status following the
    increases in restrictions on liberty does not lead to the conclusion that the
    increase was so significant that a reasonable person, considering all the
    circumstances, would think that the Board should be called on to consider
    whether the hospital properly applied the least onerous and least restrictive
    test ahead of the next annual review.

[91]

Both the FRU and the FAU are secure units and
    the Board, in its disposition, left it open to the Royal to determine where the
    appellant was best placed in those units. There is simply too little
    information about the appellants liberty norm before the restrictions placed
    on her, and too little known about the appellants liberty status following her
    transfer to the FAU, to conclude that the restrictions placed on her liberty were
    so significant that the Board had to be notified.

[92]

If the record supported that, while detained on
    the FRU, the appellant had established a consistent pattern of community visits
    with her mother, access to the hospital grounds, access to and use a cell phone
    and the internet, ordering in food and so on, her movement to the FAU could have
    triggered the need for notice. In other words, although I do not rule out that
    there are situations where transfers from the FRU to the FAU at the Royal could
    constitute a significant increase in restrictions on liberty, this is not one
    of those cases. As it stands, the factual record does not support this
    conclusion.

[93]

Given the conclusion that the appellant was not
    the subject of a significant increase in restrictions on liberty, the Royal was
    under no obligation to notify the Board of the restrictions. As notice was not
    required, there is no need to consider the appellants argument that her s. 7
    rights were breached by a failure to provide notice in a timely way.

(e)

The Least Onerous and Least Restrictive Finding

[94]

The Board was unanimous in concluding that the
    decision to move the appellant from the FRU to the FAU constituted the least
    onerous and least restrictive means available to address the appellants
    substance abuse issues, which compromised her mental status. This determination
    was reasonable, supported by the evidence, and disclosed no error of law.

[95]

The appellant simply asserts that the Board made
    an unreasonable decision. The standard of review for an unreasonable decision
    under s. 672.78(1)(a) is explained in
R. v. Owen,
2003 SCC 33, at
    para. 33 as follows:

[T]he Court of Appeal should ask itself whether the Boards
    risk assessment and disposition order was unreasonable in the sense of not
    being supported by reasons that can bear even a somewhat probing examination 
    If the Boards decision is such that it could reasonably be the subject of
    disagreement among Board members properly informed of the facts and instructed
    on the applicable law, the court should in general decline to intervene.

See also:
Centre for Addiction and
    Mental Health v. J.J.
, 2009 ONCA 680, at para. 8;
Mental Health Centre
    Penetanguishene v. Ontario
, 2010 ONCA 197, at paras. 64-66;
Saikaley
,
    at para. 35.

[96]

The Board found that the appellants transfer to
    the FAU was necessary because her consumption of intoxicants posed a risk to
    her mental status, her treatment needs, and the safety of the public. There is
    a clear body of evidence supporting this conclusion. The facts demonstrate
that over
a number
    of months, the treatment team attempted to manage the appellants access to
    drugs and alcohol, but she continued to access and consume them. This was
    risking her well-being. Moreover, the evidence clearly showed that she posed an
    increased risk to the community when abusing drugs and alcohol. The risk to the
    community includes the risk to other patients and hospital staff:
Chaudry
,
    at paras. 80-81.

[97]

The majority also found that by the time the
    appellant moved to the FAU, it would have been more onerous and restrictive to
    keep her on the FRU. This conclusion was supported by the evidence that she was
    confined to the FRU, her privileges had been revoked, and she was heading in
    the direction of one-on-one supervision.

[98]

Ultimately, the Board was alive to the legal
    standard that had to be applied, and its conclusion was reasonable given the
    evidence before it. There is no error in the Boards approach.

CONCLUSION

[99]

I would dismiss the appeal.

Released: JL Feb 14, 2018

Fairburn J.A.
I agree. John Laskin J.A.
 I agree. G.T. Trotter J.A.





[1]
The appellant maintains that by failing to meet its statutory obligation to
    notify the Board under s. 672.56(2) of the
Criminal Code,
the Royal
    violated her s. 7
Charter
right to life, liberty and security of the
    person. As a remedy under s. 24(1) of the
Charter
, the appellant asks that
    the Royal be directed to review its procedures concerning restrictions of
    liberty.



[2]

While the words necessary and appropriate have replaced the
    least onerous and least restrictive terminology that used to appear in s.
    672.54, this court has held that they mean the same thing. In other words,
    necessary and appropriate dispositions are those that conform to the least
    onerous and least restrictive standard:
Osawe (Re)
,

2015 ONCA
    280, 125 O.R. (3d) 428, at para. 45; and
Ranieri (Re)
, 2015 ONCA 444,
    336 O.A.C. 88, at paras. 19-21.



[3]

Ly (Re)
,

[2013] O.R.B.D. No. 327, at paras. 35, 37-38; and
Kelly
    (Re)
, [2014] O.R.B.D. No. 1098, at paras. 20, 49. See also:
Vale (Re)
,
    1997 CarswellBC 3273, at paras. 7, 28 (B.C.R.B.).



[4]

J.F. (Re)
, [2014] O.R.B.D. No. 683, at paras. 21, 36, 38-41; and
Pasha
    (Re)
, [2014] O.R.B.D. No. 641, at paras. 4, 41.



[5]

Robitaille (Re)
,

[2014] O.R.B.D. No. 910, at paras. 6, 34.



[6]

M.L.C.
, at paras.

2, 17;
Saikaley (Re)
, at para. 8;
Firman (Re)
, [2012] O.R.B.D. No. 2403, at para. 4;
Ginn (Re)
,

[2012]
    O.R.B.D. No. 2083, at para. 9;
Volhovski (Re)
, [2014] O.R.B.D. No. 54,
    at para. 4;
Ince (Re),
[2012] O.R.B.D. No. 2338, at para. 62;
Jardine
    (Re)
,

[2015] O.R.B.D. No. 857, at paras. 8, 38-39;
Hazzard (Re)
,

[2015] O.R.B.D. No. 2435, at para. 35; and
Huang (Re)
, [2016]
    O.R.B.D. No. 1768, at para. 42.



[7]

See for example:
Ince
,

at para. 62;
Jardine
,

at para. 8;
Hazzard
,

at
    paras. 3, 35;
Huang
, at para. 42;
Robitaille
, at paras. 3, 6, 34;
Firman
,

at paras. 4, 18;
Ginn
,

at para. 8; and
Volovski
,

at para. 4.


