Review boards are independent tribunals established to determine dispositions of accused found either unfit to stand trial or not criminally responsible on account of mental disorder (“NCRMD”). Under s. 672.54 of the Criminal Code,1 where a verdict of NCRMD has been rendered in respect of the accused, and the accused is found to not pose a significant threat to the safety of the public, the Review Board must direct that the accused be discharged absolutely.2 As stated by Justice McLachlin in Winko v. British Columbia (Forensic Psychiatric Institute):
“[t]he only justification there can be for the criminal law detaining a person who has not been found guilty (or is awaiting trial on an issue of guilt) is maintaining public safety. Once an NCR accused is no longer a significant threat to public safety, the criminal justice system has no further application.”3
The Supreme Court, in Winko, defined “significant threat to safety of public”, and this definition was codified in s. 672.5401 of the Criminal Code as:
“a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent.”4
Furthermore, the Court clarified that there is no presumption that a NCRMD accused poses a significant threat to public safety.5 The evidence must demonstrate, at the time of the hearing, that the NCRMD accused actually poses such a threat.6
There are significant differences across provinces in both the likelihood of NCRMD verdicts7 and the length of time a NCRMD accused spends under the supervision of the Review Board.8 The National Trajectory Project, the first longitudinal study comparing provincial NCRMD populations, found that, as of 2012, the annual rate of NCRMD cases was 9.27 per 1000 in Quebec, 1.07 per 1000 in Ontario, and 0.8 per 1000 in British Columbia.9 After one year, the number of people still under the supervision of the Review Board was found to be 74% in Quebec, 82% in British Columbia, and 92% in Ontario.10 After five years, the number still under supervision changes to 19% in Quebec, 31% in British Columbia, and 58% in Ontario.11 Given the relatively high numbers remaining under supervision in Ontario, one must question whether the Ontario Review Board has been more likely than other boards to come to a conclusion that individuals under its supervision pose a significant threat to public safety .
A series of recent cases from the Ontario Court of Appeal suggests the Court may be guiding the Review Board to provide a stronger evidentiary basis when applying the Winko standard. Starting with Re Wall12 on September 14, 2017, and followed quickly by Re Pellet13 on September 28, 2017 and Re Sokal14 on February 7, 2018, the Court of Appeal overturned decisions of the Review Board and ordered an absolute discharge for all three appellants. In Re Wall, the Court acknowledged that the appellant has a lengthy history of mental illness and substance abuse, and has committed numerous offences, including robbery, assault, and assault with a weapon.15 Furthermore, the risk that he would abuse marijuana and commit additional offences if discharged was considered substantial.16 The evidence before the board was that, since 2011, he had “been rude, disrespectful, verbally abusive and verbally threatening, but he has not been physically violent nor has he caused psychological harm.”17 The Court of Appeal, however, found that the “Board could do no more than conclude that the appellant’s marijuana use is potentially linked to problematic symptoms. It is not reasonable to deny the appellant an absolute discharge on so general a basis.”18 The Court, in Re Pellet, again noted that the evidence before the Review Board failed to meet the onerous standard under s. 672.54, as the only finding was that “if the appellant stops taking her medication, it will result in de-compensation, and could lead to ‘aggressive behaviour’ or cause the appellant to ‘act out aggressively’.”19 The Court in Re Sokal similarly stated, “the Board’s conclusion that the appellant posed a significant threat to public safety was speculative.”20
These cases suggest that the Ontario Court of Appeal may be focusing on a more rigorous approach in the application of the Winko test. In each of these cases, the Court pointed out that whether continued supervision is in the NCRMD individual’s best interests is irrelevant to the Board’s decision.21 The Court is demanding more than a speculative opinion that NCRMD individuals continue to pose a significant threat. This may be a response to the higher rates, compared to other provinces, of NCRMD accused remaining under Review Board supervision over time. Regardless of the reasoning, these cases are a signal to the Ontario Review Board that they must establish a firm evidentiary foundation to establish a real risk of serious harm in the cases they review.
* JD (University of Saskatchewan).
1 RSC 1985, c C-46.
3  2 SCR 625 at para 33, 175 DLR (4th) 193 [Winko].
4 Criminal Code, supra note 1.
5 Winko, supra note 3 at para 62.
7 Anne G. Crocker et al, “The National Trajectory Project of Individuals Found Not Criminally Responsible on Account of Mental Disorder in Canada. Part 1: Context and Methods” (2015) 60:3 Can J Psychiatry 98 at 103 [Crocker et al, “Trajectory Project Part 1”].
8 Anne G. Crocker et al, “The National Trajectory Project of Individuals Found Not Criminally Responsible on Account of Mental Disorder in Canada. Part 3: Trajectories and Outcomes Through the Forensic System” (2015) 60:3 Can J Psychiatry 117 at 121 [Crocker et al, “Trajectory Project Part 3”].
9 Crocker et al, “Trajectory Project Part 1”, supra note 7 at 103.
10 Crocker et al, “Trajectory Project Part 3”, supra note 8 at 121.
12 2017 ONCA 713, 417 DLR (4th) 124 [Re Wall].
13 2017 ONCA 753, 418 DLR (4th) 443 [Re Pellet].
14 2018 ONCA 113,  OJ No 666 [Re Sokal].
15 Supra note 12 at paras 5, 25.
16 Ibid at para 25.
17 Ibid at para 28.
18 Ibid at para 29 [emphasis in original].
19 Supra note 13 at para 27 [emphasis in original].
20 Supra note 14 at para 25.
21 Re Wall, supra note 12 at para 30; Re Pellet, supra note 13 at para 32; Re Sokal, supra note 14.