R. v. Hneihen

2010 ONSC 5353
Download Judgment: English

Mr. Hneihen was found not criminally responsible by reason of mental disorder (NCRMD), in relation to several criminal charges. The trial judge ordered that Mr. Hneihen be detained at the Centre for Addiction and Mental Health (CAMH) pending review by the Ontario Review Board (ORB), an independent tribunal that oversees individuals unfit to stand trial or not criminally responsible.

Mr. Hneihen was held in jail until his hearing with the ORB. The ORB ordered that Mr. Hneihen be detained at CAMH, however, there were no available beds. He was returned to jail and placed on a waiting list for a bed at CAMH. Mr. Hneihen remained in jail until his habeas corpus application hearing.

At issue was whether Mr. Hneihen’s continued detention in jail represented a violation of his ss. 7 and 9 Charter rights, and, if so, the remedy, release due to the unlawful nature of such a detention, under s. 10(c) of the Charter should be granted. Of particular issue was the lawfulness of his detention.

The Court granted writs of habeas corpus and mandamus ordering that Mr. Hneihen be transferred to CAMH immediately, on the grounds that Mr. Hneihen’s continued detention in jail, a deprivation of his right to liberty, was unlawful.

The Court found that the detaining authority was unable to establish that Mr. Hneihen’s detention was lawful. The Court found that there was no warrant authorizing Mr. Heihen’s detention in jail, only a warrant for his committal at CAMH. The conditions of his detention in jail were meaningfully different from the conditions had he been at CAMH. While the inevitability of some delay in transferring an individual from jail to hospital was acknowledged, the Court rejected the Crown’s position that a delay of 60 days could be considered reasonable.

It is meaningless to have a process which carefully considers and safeguards the liberty interest of the NCR accused if the resulting orders of the court and the ORB need not be implemented by the state. The order of the court requiring the accused to be detained at CAMH and the disposition of the ORB ordering the accused to be detained at CAMH cannot be overridden by a bureaucratic determination of bed availability.” (Para 19)

There exists a valid, constitutional scheme to determine the nature and quality of the detention of an NCR accused following the verdict of NCR. It cannot be overridden by an opaque and bureaucratic process with no discernible criteria, no temporal limitations and no appeal.” (para 28).

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