Recent Court Of Appeal Decisions Highlight Importance Of Evidence On 'Significant Threat'

Two recent cases suggest that the Court of Appeal may be applying the Winko principles on significant threat more rigorously than it has historically.

Forensic mental health professionals are well-acquainted with the "significant threat" threshold. Under s. 672.54 of the Criminal Code, an accused who has been found not criminally responsible on account of mental disorder ("NCRMD") must be discharged absolutely from the jurisdiction of the Ontario Review Board (the "Board") if the Board cannot decide with certainty that the accused poses a significant threat to the safety of the public.

A recent amendment to the Criminal Code codified the judicial interpretation of significant threat, which is derived, in large part, from the leading Supreme Court of Canada case R. v.Winko.1 The main principles enunciated in Winko include:

"Significant threat" means the accused poses a real risk of serious physical or psychological harm to members of the public; The conduct giving rise to the harm must be criminal in nature and must go beyond merely trivial or annoying conduct; and There must be evidence supporting the "significant threat", as there is no presumption that an NCRMD accused poses a significant threat to the safety of the public. NCRMD accused have an automatic right to appeal a Board's decision to the Court of Appeal for Ontario. The Board's decisions on "significant threat" are reviewed on the standard of "reasonableness" — i.e. the decision must fall within a range of conclusions that could be reasonably reached on the evidence.

Recently, the Court of Appeal twice overturned the Board's disposition on the basis that the evidence did not support a finding that the accused posed a significant threat. Accordingly, the court substituted its own decision for that of the Board's and granted the NCRMD accused an absolute discharge on the appeal. In light of these cases, which are discussed in more detail below, we recommend that forensic psychiatric facilities and physicians provide detailed evidence regarding their assessment of an accused's risk to public safety.

Wall (Re), 2017 ONCA 713

The NCRMD accused in (Re) Wall had a substantial history of mental illness and an extensive criminal record of 44 convictions, including robbery, assault and assault with a weapon. His index offence leading to the finding of NCRMD arose out of threats he made to two 9-1-1 call operators. At the time of his most recent hearing, the accused had developed good...