Successful challenge of decision explicates board’s role.

Law360 Canada (January 27, 2025, 9:05 AM EST) --

John L. Hill

Sometimes, an administrative tribunal must be reminded of the correct decision-making procedure. The Ontario Review Board is an expert body charged with determining when a person found not criminally responsible should be released.

Too often, counsel for a detained person will be hesitant to challenge a decision when the expert advice upon which the board relies opposes the client’s interest. Anita Szigeti was vigilant in her defence of Kenneth Viola, and her challenge clarified the Ontario Review Board’s rules.

On Nov. 3, 2023, Kenneth Viola was found not criminally responsible after being charged with robbery, assault, sexual assault, break and enter, and mischief. On the morning of Oct. 26, 2022, Viola was a 20-year-old who acted uncharacteristically. He developed delirium, damaged property and assaulted his mother. He was arrested 20 minutes later. He was taken to hospital. By afternoon, he was alert and oriented.

Instead of going home, he was held at the Toronto South Detention Centre. The situation was new to him. He had never been arrested before. Police had been called to the family home three times in years previous when Viola had been accused of hitting his sister. He had no history of mental illness or substance use disorder. He remained in custody until released on bail on May 11, 2023.

Once found not criminally responsible for his bizarre behaviour in November 2023, he was confined at the Centre for Addiction and Mental Health (CAMH). While there, he was examined by a psychiatrist, Dr. Jaiswal. The psychiatrist reported that Viola had not been prescribed medications to treat delirium because his issue was resolved, and no further medical intervention was necessary. The report also discussed Viola’s difficulties dealing with stressors, and since his family home had been subject to a fire, difficulties in day-to-day living could be expected. The board received letters of support from his family, including his sister.

The psychiatrist opined that Viola’s intellectual disability made him susceptible to delirium in future. As such, he posed a risk to the general public’s safety and to his family. Without specifying what parts of Dr. Jaiswal’s evidence or of the CAMH report would support a finding that Viola was a significant threat to the public’s safety, the board detained Viola.

The Ontario Court of Appeal reviewed that decision, allowed the appeal and granted Viola an absolute discharge in a decision handed down on Jan. 21, 2025 (Viola (Re), [2025] O.J. No. 252).

Appeal Court Justice Ian Nordheimer, writing for a unanimous three-judge panel, reminded the board that it is now well-settled law that not just any risk of possible harm will justify a detention order; it must be a significant threat (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625). The risk justifying continued detention goes beyond merely trivial or annoying and must give rise to harm that is criminal in nature.

The board did not particularize how it concluded that Viola’s risk met this high standard as required (Marchese (Re), 2018 ONCA 307). The board had mentioned the occurrence reports of police visits to the family home. Police occurrence reports are not evidence. They do not spell out the degree of harm or risk the board must consider. They amount to hearsay. What weight should be given them, mainly when no charges were laid?

The board failed to explain and justify its decision as it is required by law (Carrick (Re), 2015 ONCA 866). It did not explain its conclusion that people with intellectual disabilities are inherently dangerous. Dr. Jaiswal’s report did not conclude that Viola was at a higher risk of violence because of his intellectual disability.

Most importantly, the Ontario Court of Appeal reminded the Ontario Review Board that it has an inquisitorial role. It is not enough to weigh the evidence and reach a conclusion; it has a positive obligation to seek evidence that will support a further restriction on the not criminally responsible person and search for evidence favouring a discharge or a loosened warrant.

A board’s decision is entitled to deference, but to warrant that deference, the decision must be reasonable (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65). The board has a non-discretionary duty to grant an absolute discharge if it harbours doubt that the person found not criminally responsible represents a significant threat (Marmolejo (Re), 2021 ONCA 130).

An administrative tribunal must sometimes be reminded of its correct decision-making procedures and responsibilities. This was just such a case.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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