Canadian Lawyer

April 2021

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UPFRONT 8 www.canadianlawyermag.com ONTARIO UPDATE A RECENT decision from the Ontario Court of Appeal will impact hundreds of not-crim- inally-responsible accused caught in limbo because of hospital and housing-provider COVID restrictions, says Anita Szigeti, a litiga- tor with a practice focused on mental health and the law. On Feb. 12, in overturning an Ontario Review Board order and substituting its judg- ment, the court granted a conditional discharge to Jerome Williams. He was being detained in a psychiatric hospital because COVID-related policies prevented the hospital from assessing and executing alternative living arrangements. "This is going to have broad significance Review board cannot rely on COVID restrictions to keep accused detained: court of the accused person and their right to the least restrictions on their liberty." Overturning the ORB and substituting its judgment is "rare and uncommon" for the courts because of the "significant deference" they owe expert tribunals such as the ORB, says Szigeti. But it is the third such ruling since last September, she says. In January 2019, Williams was discharged into the community to live with a romantic partner who gave birth to their child shortly afterward. But by the end of the year, Williams had readmitted himself to CAMH because the relationship had ended. Then, COVID hit. Because of hospital poli- cies and restrictions, Williams lost his indirectly supervised and community privileges and was not allowed visitors, preventing him from see- ing his son and mother. In May, Williams sought to be released into the community, to stay at his mother's or a friend's house. The hospital was only willing to release Williams to a place equipped with supportive services, but its choice was to not accept new patients because of COVID. Williams was left without options because the hospital also ceased conducting assessments for alternative living arrangements due to the virus. The hospital rejected Williams' request for a conditional discharge, reasoning that if he stopped taking his medication and his mental health declined, the hospital would not be able to react quickly enough in bringing him back. The ORB accepted the hospital's position. This decision was unreasonable and contained "sig- nificant errors," said the Court of Appeal. Decision will affect hundreds of not-criminally- responsible accused stuck in hospital, says lawyer for people within the review board system because right now people are stuck . . . because the review board is washing its hands of these accused and deferring to hospital policies around COVID," says Szigeti, who acted for Williams along with co-counsel Maya Kotob. "The Court of Appeal has now said that the board has an obligation to do more." "The court, in this case, is reinforcing its earlier direction to the review board, which it would appear requires emphasis and fur- ther guidance now to the board," says Kotob. "Specifically, the court is cautioning the board that it cannot prioritize convenience and expe- diency for the hospital over the liberty interest NEWS BRIEFS Bencher motion calls on Beverley McLachlin to resign from Hong Kong court A motion to write to the former chief justice of Canada Beverley McLachlin and ask that she immediately resign her position at the Hong Kong Court of Final Appeal failed at February's Law Society of Ontario Convocation. McLachlin is an overseas non- permanent judge of the Hong Kong Court of Final Appeal. Benchers said the LSO would be stepping outside of its proper role if it were to try to advise McLachlin on whether she should resign from the court. Independence of judicial appointment process 'under attack,' say criminal lawyers The Ontario government's proposed changes to the Judicial Appointments Advisory Committee risk politicizing the judicial appointments process, says John Struthers, president of the Criminal Lawyers' Association. The Accelerating Access to Justice Act includes changes to the committee's composition and functions. "This does not need fixing. It is a perversion and a corruption of the appointment process that everyone in the system opposes."

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