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OCA decision a win for vulnerable accused

The Ontario Court of Appeal’s decision to allow a "treatment incapable" person to consent to a treatment condition is a victory for vulnerable people all over Canada, Toronto criminal lawyer Jill Presser tells AdvocateDaily.com.

Presser, principal of Presser Barristers, and associate Andrew Menchynski represented one of the successful appellants in the case, in which the appeal court reversed its own previous jurisprudence on the issue.

“This is a big win for them,” Presser says. “Although the issue is narrow, it's a decision that will likely benefit thousands of vulnerable people across the country.” 

Under s. 672.54 of the Criminal Code, the Ontario Review Board (ORB) is able to grant conditional discharges to people under its supervision, including individuals found not criminally responsible for alleged crimes due to mental disorders.

However, s. 672.55 (1) of the Code requires an accused person to consent to any conditions involving psychiatric or other treatment.

The Court of Appeal has previously ruled that the conditions were unavailable to people who have been declared incapable of consenting to the treatment at issue.   

But in its Jan. 26 decision, a five-judge panel of the province’s top court reversed course.

“To consent to a s. 672.55(1) condition, an accused person need not have the capacity to consent to the medical treatment referred to in the condition,” the decision reads. “Rather, the capacity required to consent to a s. 672.55(1) condition is the ability to understand all information relevant to the operation of the condition and to appreciate all reasonably foreseeable consequences of agreeing to the condition.”

“This is an appeal at the intersection of criminal law and mental health, on a fairly narrow technical issue of interpretation of a provision of the Criminal Code,” Presser explains. “But it is a decision that will result in opportunities for significantly increased liberty for forensic psychiatric patients in some circumstances.”

In 2010, Presser's client was found not criminally responsible for a string of charges, including criminal harassment, mischief under $5,000, transportation fraud, and failure to comply with a recognizance related to incidents involving the man’s former classmate.

In 2011, he was found incapable of consenting to medical treatment under the Health Care Consent Act, with his father appointed his substitute decision-maker.

According to the appeal court, the ORB ordered Presser’s client detained in hospital until 2014, by which time his condition improved.

A detention order imposed on him in 2014 because the ORB felt that his proposed drug treatment program could not be carried out safely in the community was overturned by the appeal court.

In that earlier decision, the appeal court substituted a conditional discharge, including a treatment condition that required Presser’s client to consent “to the extent that he can” to take the psychiatric treatments prescribed by his medical team.

In 2016, the Crown challenged the client's ability to consent, and a 3-2 majority of the ORB agreed, disallowing the treatment condition, and imposing a detention order with community living.

The appeal court set aside the ORB decision and ordered a rehearing in accordance with its new position on the availability of treatment conditions to those unable to medically consent.  

“In my view, overruling those past decisions would promote the interests of justice by removing conflicts and uncertainties in the law,” Appeal Court Justice Michael Tulloch wrote for the unanimous panel.

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