Restriction of Liberties under the Ontario Review Board after (Re) Campbell


  • Lauren Barney St. Joseph's Healthcare Hamilton



Not criminally responsible, Mental disorder, NCRMD, Criminal Code, Restriction of Liberty, Least onerous, Least restrictive, Liberty norm, Lberty status, Charter, Re Campbell, Ontario Review Board, Review Board, ORB, Canada


In Canada, Criminal Code Review Boards are established under Part XX.1 of the Criminal Code. The role of these independent tribunals is to make and review dispositions and decisions concerning persons found Not Criminally Responsible on Account of Mental Disorder or Unfit to Stand Trial. Under Part XX.1, there are certain provisions to protect the liberty interests of accused persons who remain under the authority of a provincial or territorial review board. These provisions trigger mandatory hearings before the Review Board. In (Re) Campbell, counsel for the accused argued before the Board that a transfer from one secure unit to a more secure unit required notice to the Board of a restriction of liberty and that the delay in notification resulted in a s. 7 Charter breach and that a s. 24(1) remedy was due. The Court of Appeal dismissed the appeal, confirming the Board’s decision that there was insufficient evidence regarding the accused’s liberty norm before the transfer and her liberty status after it to conclude that notice to the Board was required. Furthermore, the Court ruled that the transfer was the least onerous and least restrictive measure in the circumstances. The Campbell decision introduced an enhanced interpretation of the “significantly increasing the restrictions on the liberty of the accused” test by adopting a contextual approach which takes into consideration the accused’s liberty status before and after the decision to restrict the accused. Once a restriction is deemed to reach that threshold, the Board must determine whether the hospital’s measures were the least onerous and least restrictive in the circumstances. The Campbell decision will undoubtedly impact the way hospitals and review boards view restrictions of liberty, giving way to the potential for an increasing number of Chartercases argued on the grounds of alleged s. 7 violations.


Criminal Code (Canada), R.S.C., 1985, c. C-46. (accessed on May 16, 2018)

Mental Health Act (Ontario), RSO 1990, c M.7 (accessed on May 16, 2018)

R. Saikaley, 2012 ONSC 6794. (accessed on May 16, 2018)

Not Criminally Responsible Reform Act, SC 2014 c-6. (accessed on May 16, 2018)

Osawe (Re), 2015 ONCA 280. (accessed on May 16, 2018)

Ranieri (Re), 2015 ONCA 444. (accessed on May 16, 2018)

Young 2011(Re) 2011 ONCA 432. (accessed on May 16, 2018)

Campbell (Re), 2018 ONCA 140. (accessed on May 16, 2018)

Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985. (accessed on May 16, 2018)

R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765. (accessed on May 16, 2018)




How to Cite

Barney, L. (2018). Restriction of Liberties under the Ontario Review Board after (Re) Campbell. International Journal of Risk and Recovery, 1(2), 38–40.




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