Michael Ford (post until Oct. 31/19)
Criminal

OCA grants absolute discharge for NCR man detained for 10 years

After spending more than 10 years in psychiatric hospitals for making harassing phone calls, a non-violent man has been granted an absolute discharge by the Ontario Court of Appeal (OCA), says Toronto criminal lawyer Jill Presser, who acted as a friend of the court in the matter.

Presser, principal of Presser Barristers, says the OCA decision underscores that a person is allowed to be mentally ill and live in the community as long as they’re not dangerous.

“This is a fellow for whom the evidence of dangerousness just wasn’t there anymore,” she tells AdvocateDaily.com. 

“The Court of Appeal said he couldn’t lawfully be detained any longer."

Presser says the court has also emphasized in this ruling who has onus in front of the review board. 

“The OCA is really saying that the onus doesn’t rest with the not criminally responsible (NCR) accused to prove they aren’t dangerous,” she says. “The evidence has to be there on the whole of their record, and if it isn’t, then they are permitted to no longer be under the board’s jurisdiction."

Presser says the court’s decision is a “huge victory” for the man.

“He’s been in custody for more than a decade — a quarter of his life — for making harassing phone calls, a non-violent offence,” she says.  “If he had been convicted of this offence instead of being found NCR, he might have served 10 days in jail or less.

“Because he was mentally disordered and not criminally responsible, he spent more than 10 years, the last couple of which even the hospital, the treatment team and the psychiatrists agreed that he wasn’t dangerous.”

In a split decision from the OCA in 2017, the court ordered a new hearing for the man after Presser, as amicus curiae, argued that he be given an absolute discharge. Read more

The matter had ended up before the court then because the man appealed the review board’s August 2016 decision that he posed a significant threat to public safety and should not be discharged. 

In his 2017 appeal to the court, a new risk assessment was received as fresh evidence, which indicated that he was at a low risk to re-offend, says the OCA decision. In light of this evidence, all three members of the panel agreed that the board's disposition detaining the appellant could not stand. The majority of the panel remitted the case to the board to consider the appellant's situation in light of the new risk assessment, the ruling says.

The board then considered the fresh evidence, along with a more recent risk assessment, and again, it determined that a detention order was appropriate, says the OCA decision. 

At that point, the OCA agreed with the appellant that the review board's decision was unreasonable and substituted an absolute discharge — somewhat of an unusual move by the court, Presser says. 

“Typically, appellate courts like to defer to the board as the first-instance decision-maker,” she says. 

“But it’s wonderful and bold that the Court of Appeal saw the need to intervene here and send this gentleman home, and say that he’s entitled to his liberty at this point because the evidence just isn’t there to keep him detained.”

Presser points to some discussion in the OCA decision about actuarial risk assessment tools and how they were used as the only real evidence against this man. 

“The court here is recognizing that although the actuarial risk assessment for this man was ‘valid and helpful,’ it isn’t ‘synonymous with universally reliable,’” she says. 

“Basically the court is saying that an actuarial risk assessment is just one piece in a puzzle, and you really get a better sense of what a person is about if you take a holistic view to look at their diagnosis, presenting symptoms and behaviour — in other words, look at the entire person.

“I think that’s important recognition by the court and likely advances the law in this area in a helpful way for some of the vulnerable people who end up NCR and under the review board’s jurisdiction.”

Presser says the man, now 40, plans to resume his life as soon as he is released from the hospital. 

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