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

Abstract

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.