Six Minute Criminal Lawyer - Mental Health Update

On April 12, 2014, I am speaking at the Six Minute Criminal Defence Lawyer.  I was asked to talk about the case of Conception v. HMQ and my paper focusses on this topic. After the paper was delivered, three decisions were released which may have impact on mentally disordered accused under the jurisdiction of the Ontario Review Board or the Courts plus a fourth which, on reflection is also essential reading. So, in addition to the yet to be released Conception, here are four cases worth a read:


Anten v. Bhalerao, 2013 ONCA 499 (CanLII):  this is an evidence case about the need for corroboration in accordance with section 14 of the Evidence Act.  Section 14 of the Evidence Act provides:

14.  An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:
1. A person who has been found,
i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act,
ii. incapable of personal care under the Substitute Decisions Act, 1992, or
iii. incapable by a court in Canada or elsewhere.
2. A patient in a psychiatric facility.
3. A person who, because of a mental disorder within the meaning of the Mental Health Act, is incapable of giving evidence.

The Court of Appeal applied this rule to evidence before the Consent and Capacity Board. It is a reminder that people who are detained in psychiatric hospitals or are incapable have the benefit of evidentiary protections.  Use them.



The case considered section 11(h) Charter rights. I am using this case is a psychiatric gating case where the person transferred on warrant expiry from the pen to Oak Ridge.


Mission Institution v. Khela, 2014 SCC 24 (CanLII): As summarized in the CanLii headnote:

"Many of the same principles which weigh in favour of concurrent jurisdiction between provincial superior courts and the Federal Court apply to the determination of the scope of a provincial superior court’s review power.  First, each applicant should be entitled to choose his or her avenue of relief.  If a court hearing a habeas corpus application cannot review the reasonableness of the underlying decision, then a prisoner who has been deprived of his or her liberty as a result of an unreasonable decision does not have a choice of avenues through which to obtain redress but must apply to the Federal Court.  Second, there is no reason to assume that the Federal Court is more expert than the superior courts in determining whether a deprivation of liberty is lawful.  Third, if inmates are not able to obtain review of their potentially unreasonable loss of liberty under an application for habeas corpus, they will have to wade through the lengthy grievance procedure available under the statute in order to have their concerns heard.  Fourth, the fact that inmates have local access to relief in the form of habeas corpus also weighs in favour of including a review for reasonableness.  Fifth, the non‑discretionary nature of habeas corpus and the traditional onus on an application for that remedy favour an inmate who claims to have been unlawfully deprived of his or her liberty. If the inmate were forced to apply to the Federal Court to determine whether the deprivation was unreasonable, the remedy would be a discretionary one.  Further, on an application for judicial review, the onus would be on the applicant to show that the transfer decision was unreasonable.  Lastly, requiring inmates to challenge the reasonableness of a transfer decision in the Federal Court could result in a waste of judicial resources."

This decision has the potential to assist those under the jurisdiction of the Ontario Review Board have the condition of their detentions reviewed by a court which has enforcement powers despite the concurrent jurisdiction of the Board and the availability of a restriction of liberty hearing.



This case involved a Crown appeal from an Ontario Review Board disposition where the Board made a more liberal disposition than the joint submission of the parties which included the NCR accused, the hospital and the Crown. In upholding the decision of the Board, the Court distinguished the duty of fairness owed to the Crown as opposed to the accused.