The Right to Remain NCR

by: Angelika Kuzma

INTRODUCTION

The Canadian “Not Criminally Responsible” (NCR) regime presents a special challenge for the intersections of health law and criminal justice. This may be explained in part by the fact that the Canadian NCR regime equally presents a unique context for the interpretation of long heralded constitutional rights and principles, where the coercive power of the state to detain a mentally disordered¹ accused is not rooted in any notion of criminal responsibility, but on the basis of the risk they pose to society.² In turn, this process may have significant ramifications for an NCR accused. For instance, an NCR accused who is unlikely to respond (or comply) with treatment may very well be subject to indeterminate detention; that is, they may spend the rest of their life subject to the jurisdiction of the relevant administrative body (namely, a Review Board) charged with their oversight.³

To that end, the animating question which informs the liberty prospects of an NCR accused is whether they represent a “significant threat to public safety.”⁴ The ramifications of such a finding are consequential. For example, NCR dispositions often entail significant – and at the present moment, constitutional – deprivations of liberty, including, inter alia, serious restrictions to movement, relationships, and activities; as well as intrusions on autonomy, such as constant monitoring and reporting obligations.⁵

However, a less discussed ramification that may be posited at the intersection of liberty – and thus, by extension, autonomy, dignity, and medical self-determination – is the right to refuse treatment. Notably, in the seminal case of Winko v British Columbia (Forensic Psychiatric Institute)⁶, which dealt with interpreting the constitutionality of the NCR regime⁷, the relevant constitutional challenge only dealt with the broader scope of restrictions that a Review Board may be empowered to impose. It did not, in any detail, consider whether the right to choose or to refuse treatment engaged the liberty interest under section 7 of the Charter.⁸ To that end, the intention of this paper is not to argue that such a section 7 Charter challenge exists or would be successful. Rather, it is to consider the extent to which the right to refuse treatment is honoured for an NCR detainee⁹, and what consequences flow from this reality.

Accordingly, this paper arrives at the conclusion that a right to refuse treatment for an NCR detainee is functionally equivalent to a “right to remain NCR”; that is, an NCR detainee –  who is treatment capable and/or who simply refuses to comply with treatment – will almost inevitably be subject to the indefinite jurisdictional authority of a Review Board, so long as they exercise this constitutionally protected right to refuse treatment. The logical – yet, in equal measure, perplexing – derivative of this reality is that an NCR detainee’s liberty may be viewed as contingent on submitting to medical treatment. This poses doctrinal ambiguities, to the extent that: (1) it may make increased liberty contingent on effectively abandoning long heralded and constitutionally protected principles of autonomy, dignity, and medical self-determination; and (2) in turn, this results in an NCR regime that is contrary to the laws purpose, to the extent that it appears to be punitive.

Part I begins with an overview of the NCR regime, focusing on the legislative and jurisprudential treatment which governs disposition procedures. I situate the indicia of the “treatment” of an NCR accused as an animating concern. Part II considers the right to refuse treatment in broader strokes. I grapple with the normative and legal justifications which inform our approach to “treatment” by drawing an analogy to the civil context. I emphasize how the right to refuse treatment informs our commitment to liberty and the values which underlie it; namely, autonomy, dignity, and medical self-determination. Finally, Part III considers how the right to refuse treatment is specifically operationalized in the NCR context. Finding that the right to refuse treatment is not, technically speaking, refused for an NCR accused, I detail how in practice the right is nonetheless largely defunct. I do this by turning to a critical analysis of recent caselaw in Ontario to emphasize how the consideration of a “lack of insight”, as routinely utilized by Review Boards to justify prolonged detention or conditions, reproduces the logic of making increased liberty contingent on submitting to medical treatment.

I. An Overview of the NCR Regime

The legal test for a designation of “Not Criminally Responsible by Reason of Mental Disorder” (NCR) is found within section 16 of the Criminal Code.¹⁰ In essence, jurisprudential treatment of this provision has resulted in a two-part test. In order to be found NCR, an accused person must prove that they suffer from a mental disorder¹¹ that, at the relevant time, either: (1) prevented them from appreciating the nature and quality of the act or omission¹²; or (2) that their mental disorder prevented them from knowing it was legally and morally wrong.¹³

Significantly, a designation of NCR is not a verdict of guilt, to the extent that it does not attribute criminal responsibility¹⁴; however, it is likewise not an acquittal.¹⁵ Rather, a designation of NCR funnels an accused person into the hands of a territorial or provincial Review Board, which derive their jurisdiction from Part XX.1 of the Code.¹⁶ In effect, upon receiving a designation of NCR, section 672.54 of the Code directs the relevant Review Board to render a disposition to determine if the accused is a “significant threat” with a view to the following factors: (1) the safety of the public, which is the paramount consideration; (2) the mental condition of the accused; (3) the reintegration of the accused into society, and; (4) the other needs of the accused.¹⁷

Further, section 672.54 lists out the three possible dispositions, “necessary and appropriate in the circumstances”, that may be ordered.¹⁸ In effect, the result of the “significant threat” analysis is three-fold: discharge (with or without conditions) or detention.¹⁹ More specifically, if the Board determines that the accused is not a significant threat, then as a matter of constitutionality²⁰, the accused must be discharged absolutely (i.e. without conditions). In this context, the NCR accused is no longer subject to the jurisdiction of the Review Board. Conversely, if the Board determines that the accused is a significant threat, then the only two dispositions available are either a conditional discharge or detention. In either instance, the NCR detainee is subject to the jurisdiction of the Review Board, pending an annual review up until they are able to be absolutely discharged.²¹ Likewise, the qualifier of “necessary and appropriate” inherent in s. 672.54 of the Code has been held to mean that the disposition and any conditions attached must be the least onerous and least restrictive possible.²²

What emerges from the provision is that, in rendering a disposition, “the role of the [Review] Board is first to determine whether an NCR accused represents a significant threat to public safety.”²³ To that end, the “black-letter law”, so to speak, is derived from Winko²⁴, where the Supreme Court authoritatively established what constitutes a “significant threat to public safety”, now codified in the Code.²⁵

In effect, “significant threat” requires “a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying.”²⁶ Likewise, the conduct contemplated must be criminal in nature.²⁷ However, not all criminal conduct is captured by this requirement; rather, there must be a real risk that the NCR accused will commit a “serious criminal offence.”²⁸ Regarding the qualifying word – “real” – this further demands that the risk may not be speculative and must be supported by evidence.²⁹ In other words, there must be both: (1) a likelihood of a risk materializing, and; (2) the likelihood that serious harm will occur.³⁰

It is not surprising then, that the Court of Appeal for Ontario has in recent years affirmed that the threshold for a finding of “significant threat” is onerous.³¹ It is also important to note that the legal and evidentiary burden in the “significant threat” analysis rests on either the Court or the Review Board, not the NCR accused.³² As chronicled by the Supreme Court in the seminal case of Winko,³³ this largely emanates from the recognition that individuals struggling with mental illness are not inherently dangerous, and therefore, there should be no presumption of dangerousness directed towards the NCR accused.³⁴ Put more simply, significant threat is not to be presumed.

To provide more guidance in this analysis, the Supreme Court in Winko furtherclarified that in conducting this inquiry, the Review Board has recourse to a broad constellation of factors, including, inter alia, the past and expected course of the NCR accused’s treatment, if any; the present state of the NCR accused’s medical condition; the NCR accused’s own plans for the future; the support services existing for the NCR accused in the community; and, the assessments provided by experts who have examined the NCR accused.³⁵ Crucially then, the treatment prospects of an NCR accused are an overarching concern when considering their possible liberty prospects. So, what happens when an NCR accused refuses treatment?

II. The Right to Refuse Treatment

In order to better approach the above question, it is necessary to canvass the jurisprudence on the right to refuse treatment more broadly. As a starting point, the right to refuse treatment is emblematic of the significance that the advent of the Charter had on the intersections of law and psychiatry. A majority of the Supreme Court spelled out this constitutional dimension explicitly in the oft-cited case of Starson v Swayze³⁶: “[t]he right to refuse unwanted medical treatment is fundamental to a person’s dignity and autonomy. This right is equally important in the context of treatment for mental illness…”³⁷ Citing another seminal case, Fleming v Reid,³⁸ the Starson Court further noted that: “[f]ew medical procedures can be more intrusive than the forcible injection of powerful mind-altering drugs…”³⁹

There are a few points worth unpacking at this juncture. First, it is clear from the latter quote that what the Supreme Court was predominantly concerned with in Starson was the right to refuse medication, as subsumed under the larger umbrella term of “treatment.” This flows logically from the facts of the case. Having been diagnosed with bipolar disorder, Professor Starson refused to consent to the treatment proposed by his physician, which included neuroleptic medication, mood stabilizers, anti-anxiety medication and anti-parkinsonian medication.⁴⁰ Professor Starson based this decision on the fact that previous medication of a similar kind “dulled his thinking”⁴¹ and made him “miserable.”⁴² As a result, his physician found him incapable of consenting to treatment and Professor Starson appealed to the Consent and Capacity Review Board (CCRB). The CCRB upheld this finding of incapacity based on Professor Starson’s “almost total denial”⁴³ of his illness. Crucially, the Supreme Court overturned this finding, holding in no uncertain terms that the statutory test is concerned solely on patient capacity, not what the Board views is in the patient’s “best interests.”⁴⁴

Second, and in a similair vein, while the factual matrix in Starson revolved around the right to refuse medical treatment in a hospital setting as a result of being declared NCR, the legal test of capacity informing the appeal arises from the civil context. The Health Care Consent Act⁴⁵ is the relevant legislation in the province of Ontario, providing for a definition of capacity⁴⁶ as well as a presumption of capacity.⁴⁷ To that end, where the civil context and the criminal context merge is that an NCR accused may be either treatment capable or incapable, according to the relevant legislation.⁴⁸ The main point, however, is that an NCR designation does not automatically render an NCR accused incapable.

Against this backdrop, it is important to note that there has been a perceptible and spirited debate regarding involuntary hospitalization and treatment arising out of the civil context.⁴⁹ While the precise parameters of that debate are beyond the scope of this paper, it is beneficial to draw an analogy to the civil context in order to identify and distinguish the justifications informing the right to refuse treatment within and outside the realm of criminal law.

At the outset, it bears emphasizing that “involuntary hospitalization” takes on a materially different hue in the context of an NCR accused; an NCR accused is being detained not in the absence of “wrongdoing” per se⁵⁰, but in the absence of criminal responsibility. To that end, there are both doctrinal and theoretical reasons which inform the distinction between civil and criminal involuntary committal – and by extension, the justifiable use of coercive state power to detain (and treat) a patient. As alluded to above, in the civil context, a patient may be detained in the absence of any criminal wrongdoing whatsoever.⁵¹ Conversely, while an NCR accused is absolved from criminal responsibility, they have nonetheless committed the actus reus of some criminal act that may raise concerns for public safety and justify their preventative detention.⁵²

Argued elsewhere, what emerges from this reality is that the former (civil) patient may be presumably detained as a risk to self (or others, but in the absence of “criminally cognizable wrong”⁵³), while the latter (NCR) patient is detained solely as a risk to others.⁵⁴ Arguably, this is precisely what distinguishes an NCR detainee from, for example, an MHA detainee.⁵⁵ In a nutshell, the risk is not merely relegated to self, but exclusively to others. If we consider that the governing test for NCR dispositions is a “significant threat to public safety” this makes perfect sense.

Likewise, this seems to anchor our normative and legal justifications for putting greater weight on compliance with treatment in the NCR context. In fact, the corpus of NCR jurisprudence consistently reflects this notion of putting a premium on treatment. For example, to echo Chief Justice McLachlin (as she then was) in Winko: “[p]roviding opportunities [for the NCR accused] to receive treatment, not imposing punishment, is the just and appropriate response.”⁵⁶ In another case, the Supreme Court noted that at the forefront of the “other needs” of the accused, as per s. 672.54 of the Code, was the need for treatment.⁵⁷ The effect of this observation is that, “[t]he provision of medical services ... is merely a logical and inevitable (but ancillary and incidental) effect of Part XX.1 [of the Code’s] focus on public safety and community reintegration.”⁵⁸ Thus, treatment is both necessary and appropriate, precisely because it is not meant to be punitive and because it reconciles this dual purpose of public safety and maximization of liberty interests.

III. The Right to Remain NCR

To that end, the right to refuse treatment has, technically speaking, carried on into the fora of criminal law. For example, in the specific situation of an NCR detainee, s. 672.55 of the Code stipulates that “neither a court nor a Review Board may impose a treatment condition as a term of disposition without the prior consent of the person involved.”⁵⁹ Likewise, jurisprudentially, the right to refuse treatment in the NCR context has never actually been denounced or abolished. In fact, at first blush, the trajectory of the NCR jurisprudence appears to faithfully follow this commitment of balancing the safety of the public with the commitment of safeguarding an NCR accused’s liberty to the greatest extent possible.

One case worth noting is Mazzei.⁶⁰ Here, the Supreme Court considered whether a Review Board may “prescribe” treatment, ultimately answering this question in the negative. Here, the Court found that while Review Boards have the authority to make their disposition orders and conditions binding on third parties (such as hospital authorities and treatment teams), they fall short of actually prescribing treatment.⁶¹

Mazzei is notable in a few regards. First, it is significant for dealing with “treatment impasses.” Namely, the factual matrix of the case revolved around an Indigenous NCR accused who was not responding well to current treatment and who wished to pursue drug and alcohol counselling at a First Nations residential rehabilitation centre.⁶² One of the conditions attached to the continued detention order, anchoring the appeal, was that the Director of the Forensic Institution where Mr. Mazzei was held “undertake assertive efforts to enroll the accused in a culturally appropriate treatment program.”⁶³ The Supreme Court ultimately found that this was a proper application of the Review Boards authority and jurisdiction.⁶⁴

Interestingly, the Mazzei Court anchored its reasoning in the notion that the primary purpose of Part XX.1 of the Code was not the assurance that all NCR accused receive medical treatment. As the Court reasoned: “[t]he provision of medical services under Part XX.1 is … to be engaged only in order to help achieve the goals of public safety and maximization of liberty interests…”⁶⁵ At first blush, the Court appears to carve out a sphere of authority wherein it could be reasonably argued that the NCR disposition regime is not premised upon an NCR accused submitting to medical treatment to gain increased liberty. However, the Court immediately follows this by observing that:

The medical treatment of the NCR accused can only occur with a view to reducing the accused’s level of threat to public safety and creating a situation where it is no longer significant, thereby permitting reintegration into society. According to McLachlin J. in Winko… medical treatment “is necessary to stabilize the mental condition of a dangerous NCR accused and reduce the threat to public safety created by that condition … “Public safety will only be ensured by stabilizing the mental condition of dangerous NCR accused.”⁶⁶

The upshot of this latter qualification appears to be that treatment is always necessary when put into dialogue with public safety (and not only, as the Court appeared to suggest earlier). This follows logically if we consider the further assertion made by McLachlin J in Winko, that “if society is to be protected on a long-term basis, it must address the cause of the offending behaviour – the mental illness.”⁶⁷ Arguably, by making this assertion, McLachlin J said the quiet part aloud: treatment is predominantly, if not entirely, the only way to address the root cause of mental illness, and hence, ensuring public safety. Thus, what appears to emerge from this line of reasoning is that an NCR detainee’s liberty is, in fact, contingent on submitting to treatment; therefore, as will be detailed in the caselaw below, it appears that exercising the right to refuse treatment is functionally equivalent to a “right to remain NCR.”

Of course, there exists the counterargument that treatment is the most optimal and responsive course of action, supported by evidence proffered by medical experts who are in a better position than a Court or administrative body to provide individualized assessments.⁶⁸ To that end, it is not my intention to suggest that treatment ought not to be a legitimate concern as levied against public safety. Nor is it to suggest that public safety should not be a predominant concern. However, the picture does become more concerning when we consider that making increased liberty contingent on submitting to treatment results in a regime that is punitive, and therefore, contrary to the law’s purpose. This is further compounded by the fact that in the NCR context, we are generally not just concerned with “treatment” writ large, but medication. Crucially, this medical treatment often includes the kind of “powerful mind-altering drugs”⁶⁹ that the Starson and Fleming Courts found to be antithetical to medical self-determination, autonomy, and dignity, when forced upon an individual.

Accordingly, the purpose of the next section is to canvass recent caselaw in Ontario that positions how this “right to remain NCR” is operationalized and construed. Specifically, it focuses on how, in practice, this concern arises from a Board’s determination than an NCR accused “lacks insight” into their (medical) situation and the doctrinal ambiguities that arise therein.

Lack of insight

The jurisprudence on how a “lack of insight” factors into the “significant threat” analysis is not uniform. As a starting point, however, it is widely accepted that, “[a] lack of insight has its place in the overall clinical picture.”⁷⁰ Most commonly, this is co-opted with the indicia of an accused’s “present mental condition”, as per s. 672.54 of the Code.⁷¹ For example, the Court of Appeal for Ontario has stated that “evidence of the potential for physical or psychological violence, such as a lack of insight into the index offence and mental illness, … concerns over discontinuing medication … which could result in decompensation, psychosis and problematic conduct … may support a [significant threat] finding.”⁷²

Against this backdrop, Marmolejo (Re)⁷³, delivered by the same court, is significant. In this case, an NCR accused, appealed the disposition of the Ontario Review Board (“ORB”) that continued his conditional discharge. Since August 2010, the appellant had been under the jurisdiction of the ORB from an NCR verdict arising from two index offences of criminal harassment and breach of probation.⁷⁴

In rendering its disposition, the ORB relied almost exclusively on hospital reports and the opinion of the appellant’s treating physician. Significantly, this evidence, which ultimately informed the “significant threat” analysis, was largely centered on medication and medical controls:

If Mr. Marmolejo were to reoffend, it would flow from noncompliance with antipsychotic medication potentially exacerbated by the use of substances. Mr. Marmolejo has demonstrated limited insight into the specific benefit of a reduced risk for violent or harassing behaviour as emanating from ongoing compliance with antipsychotic medication. … Risk of violent behaviour would gradually arise as a result of noncompliance.⁷⁵

Ultimately, the Court of Appeal found that this disposition was “devoid of any analysis.”⁷⁶ In turn, the Court found that this represented an error of law, to the extent that the broad and largely speculative conclusions anchoring the analysis – namely, the ORB‘s exclusive reliance on a lack of insight or possible decompensation from non-adherence to medication – did not “address either the degree of the risk nor the gravity of the apprehended harm”⁷⁷ as required by the governing jurisprudence.

The Court of Appeal began its analysis by stating that “[t]he fact that an accused lacks insight into their condition is but one factor for consideration, and it must be used with care.”⁷⁸ The Court drew on its analysis in another case, Kalra (Re),⁷⁹ to reiterate that a lack of insight is not a basis to deny an absolute discharge. However, the Court stopped short of opining that a lack of insight could never form the appropriate basis to make out a significant threat, stating that “[a] lack of insight alone cannot form the basis of a significant threat finding without analysis of how that lack of insight factors into the risk the NCR accused will pose.”⁸⁰

The Court further went on to link this specifically with a finding that an NCR accused would discontinue their medication if absolutely discharged, reasoning that “a finding that a person might discontinue their medication must be supported by evidence and be linked in a reasoned way to the finding that the NCR accused poses a significant threat to the public.”⁸¹ Applying this dictum to the case at hand, the Court of Appeal noted:

In the present case, the appellant has complied with his medication regimen for years and has repeatedly indicated that he would continue taking his medication upon his absolute discharge. Although he stopped taking his medication after he received his 2008 absolute discharge, there is no evidence that this would happen again. His liberty cannot be beholden to a mistake made over a decade ago.⁸²

There are two points worth noting in this regard. First, the acknowledgment that the “significant threat” threshold cannot be established by the mere fact that an NCR accused would cease to take medication, even if that probability is likely and even if it would result in a worsening of their condition, is significant.⁸³ This seems to faithfully apply the dicta from cases like Fleming and Starson, to the extent that the courtsdefined the right to medical self-determination (and hence, dignity and autonomy) there in relation to self. In simpler words, so long as there is no requisite (and non-speculative) threat to others – in the NCR context, the safety of the public – then the right to refuse treatment should not be weighed adversely against an NCR detainee. Likewise, this appears to follow the dicta from Winko, to the extent that that a presumption of dangerous is categorically barred from being presumed;⁸⁴ hence, simply suggesting in the abstract that possible non-compliance with medication could lead to decomposition without either grounding this in evidence or providing a causal link to the safety of the public would run afoul to this basic protection.

On the flip side of the coin, however, in characterizing the appellant’s discontinuation of medication at an earlier point in time as a “mistake”, while putting significant emphasis on the appellant’s current compliance, the Court of Appeal appears to be catering towards a theme prevalent in the vast majority of NCR disposition cases: the salience of medical controls to the exclusion of other “treatment” alternatives. Several recent cases follow this line of reasoning. For example, in Appleby (Re),⁸⁵ a 2023 case, the ORB continued the NCR accused’s detention order, noting that “[while] he has a supportive family, this is no substitute for strong medical controls to contain his illness.”⁸⁶ In this case, the NCR detainee had a long and complex history of detention both in the civil and criminal context, spanning from 2014.⁸⁷ Notably, amongst this history, one doctor had earlier cautioned against the use of antipsychotic medication to treat the underlying mental illness.⁸⁸ There was also evidence on record to suggest that more recent compliance with medication did not significantly curtail delusional symptoms or suicidal ideations, which invariably factored into the “significant threat” analysis. Thus, the ORB’s assertion above is significant because it suggests that not only is Mr. Appleby’s increased liberty contingent on medication, but, until that medication works.

This notion is reflected in another recent case, Hojjatian (Re).⁸⁹ Here, the ORB characterized the accused’s insight into his mental illness and need for medication as being “limited, and fluctuant.”⁹⁰ This was grounded in evidence provided by the accused’s doctor which noted that he was “resistive to changes in his medication regimen”⁹¹; namely, the possibility of switching to an injectable anti-psychotic medication or increasing the amount of his other medication.⁹² Significantly, Mr. Hojjatian’s reluctance to change his medication was characterized (and arguably, discounted) by the ORB as being based on “his subjective experience of excessive daytime sedation”⁹³ and compounded by the ORB’s acknowledgement that “despite treatment with anti-psychotic medications, Mr. Hojjatian continues to exhibit residual symptoms of his schizophrenic illness.”⁹⁴ Thus, while finding that Mr. Hojjatian had a “baseline mental status”⁹⁵, the ORB refused to grant him an absolute discharge.

Such an analysis is difficult to reconcile for one significant reason. Namely, on the Board’s analysis, it is difficult to decipher what kind of mental status would go beyond “baseline” for purposes of rejecting a “significant threat” finding. This therefore begs the question: how “medicated” is “medicated enough” for purposes of gaining liberty? As in Appleby, directly above, the more problematic corollary of this analysis is that it suggests that NCR detainees, such as Mr. Hojjatian and Mr. Appleby, will be detained until they are “cured.”

This point is worth unpacking. It is reasonable to, again, trace this observation back to McLachlin J.’s assertion in Winko: “if society is to be protected on a long-term basis, it must address the cause of the offending behaviour – the mental illness.”⁹⁶ It is significant that, here, McLachlin J attributes the “cause of the offending behaviour” to the mental illness, rather than the individual. To be clear, I am not suggesting that the attribution should be different or even the other way around; rather, my concern is that this arguably implies that in order to gain liberty, the mental illness of the NCR accused must be “cured”, so to speak. The problem here is that this ideal may erode liberty and the values underlying it – namely, autonomy, dignity, and medical self-determination. Put more eloquently, when we focus on “curing” an NCR accused, “we have tacitly removed [them] from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case’”⁹⁷

Bearing this in mind, it is hard to reconcile how the right to refuse/comply with treatment in Hojjatian which had significant ramifications on the NCR accused (excessive sedation) led the ORB to conclude that the only remedy was more medication. Arguably, if we consider what Mazzei tells us about “treatment impasses”⁹⁸, it is significant that the Board did not consider any other alternatives apart from further and stronger medical controls.⁹⁹ In fact, in this case, the right to refuse medication was virtually non-existent, as the Board noted that: “[f]rom the Board’s perspective, the fact that [the accused] is not internally motivated to take medication to remain mentally well heightens the importance of adequate extrinsic support to ensure that he continues to engage in risk mitigation strategies such as taking his medication….”¹⁰⁰

This line of reasoning is very circular: in effect, the Board is saying that Mr. Hojjatian’s lack of insight into taking his medication heightens the importance of ensuring that he takes his medication. It is necessary to further contextualize this holding. In Mr. Hojjatian’s case, there was evidence that: (1) current treatment was sub-optimal, both in terms of the negative side effects it had on him and the fact that it was not alleviating his symptoms as intended; and (2) the Board’s conclusion, based on evidence provided by the treating physician, was that the only remedy was stronger medication, in the absence of any guarantee that it would work and in the face of Mr. Hojjatian’s documented concerns. Necessarily then, it is reasonable to arrive at the conclusion that Mr. Hojjatian, and other NCR accused like him, is simply a “patient” or “case” rather than a “subject of rights.”

CONCLUSION

What we can gleam from this corpus of jurisprudence is that while the right to refuse treatment is superficially alive and well to an NCR accused, the inevitable reality is that any such exercise of this right may very well prolong – perhaps, indefinitely so – their detention. As we have seen, the fact that that the predominant concern in defining who is and is not a “significant threat to public safety” by exclusively appealing to compliance with medicalized notions of treatment poses the challenge of construing risk in a manner that is “less about public safety and more about medico-legal visions of how a good, productive, and independent person appears and acts.”¹⁰¹ In turn, this poses the risk of eroding principles such as autonomy, dignity, and medical self-determination for NCR detainees. By extension, surgically construing the prospect of increased liberty for an NCR accused based almost exclusively on compliance with medical treatment, appears to render the right to refuse treatment null and void. More significantly, making increased liberty synonymous with submitting to medical treatment curates an NCR regime which is punitive, which crucially, runs afoul to governing legislative and jurisprudential authority that explicitly assumes the contrary.

BIBLIOGRAPHY

Legislation

Criminal Code, RSC 1985, c. C-46

Health Care Consent Act, 1996, SO 1996, c 2.

Mental Health Act, RSO 1990, c M.7.

Jurisprudence

Appleby (Re), 2023 CarswellOnt 5798 (Ontario Review Board).

Carrick (Re), 2015 ONCA 866

Fleming v Reid, 4 OR (3d) 74, 82 DLR (4^th) 298.

Hojjatian (Re), 2021CarswellOnt 12506 (Ontario Review Board).

Kalra (Re), 2018 ONCA 833.

Marmolejo (Re), 2021 ONCA 130

Mott (Re), 2019 ONCA 560

Pellett (Re), 2017 ONCA 753

Penetanguishene Mental Health Centre v Ontario (Attorney General), 2004 SCC 20

Pinet v St. Thomas Psychiatric Hospital, 2004 SCC 21

R v Ferguson, 2010 ONCA 810

R v Minassian, 2021 ONSC 1258

R v Swain, [1991] 1 SCR 933, 4 OR (3d) 383

Sim (Re), 2019 ONCA 719.

Starson v Swayze, 2003 SCC 32.

Winko v British Columbia (Forensic Psychiatric Institute), 2 SCR 625, [1999], 175 DLR (4^th) 193.

Woods (Re), 2019 ONCA 87.

Secondary Sources

Bernheim, Emmanuelle & Florence Amélie Brosseau, “What Is the “Risk” in the High-Risk Accused Finding? Discriminatory Slippage in the Not Criminally Responsible on Account of Mental Disorder Regime” (2023) 27 Can Crim L Rev 219.

Brodsky, Greg, “Proceed with Extreme Caution: The Not Criminally Responsible Defence” (2017) 40 Man LJ 89

Chodoff, Paul, “Involuntary Hospitalization of the Mentally Ill as Moral Issue” (1984) 141 Am J Psychiatry 3

Drassinower, Abraham , “A Person Suffering: On Danger and Care in Mental Health Law” (2023) 73 U Toronto LJ 381

Lewis, C.S, “The Humanitarian Theory of Punishment” (1987) 13:1 Amcap J 1

Macklin, Zev, “Indeterminate Sentences and Section 12 of the Charter” (2023) 14:1 Western JLS 1 at 16, online: CanLIIDocs 464.

Shaw, Joshua D. M. et al, “Constructing Risk through Jurisdictional Talk: The Ontario Review Board Process under Part XX.1 of the Criminal Code” (2023) 38:2 Can LJ & Pol 180.

Endnotes