Canada: 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 insight into his mental disorder and was capable of consenting to treatment. He had been living off and on in the community since 2013, requiring multiple re-admissions due to ongoing substance abuse.

On his last two admissions to hospital in 2016, the accused showed signs of cognitive impairment and hypomania. At the hearing, the accused's psychiatrist testified that he was "extremely dangerous" when hypomanic and that the recent rapid emergence of his symptoms provided clear evidence that his substance abuse was affecting his mental status, putting him at risk of a full manic episode.

The Board did not agree that the accused was "extremely dangerous", since he had not exhibited any signs of violence since 2014. However, the Board did accept that the accused's marijuana use was "potentially linked to problematic symptoms and [was] sufficient to support a finding of significant threat."

The Court of Appeal found this decision to be unreasonable and ordered an absolute discharge. As part of its reasons, the court explained that:

The risk that [the accused] will abuse marijuana and commit additional offences if he is given an absolute discharge is substantial. But he cannot be detained indefinitely on this account.


[A]t its highest, the Board could do no more than conclude that the appellant's marijuana use is potentially linked to problematic symptoms. It is not a reason to deny the appellant an absolute discharge on so general basis. [italics in original, bold added]

Pellett (Re), 2017 ONCA 753

In (Re) Pellett, the accused suffered from schizophrenia, with a recurring pattern of hospitalization, treatment, release, de-compensation, relapse and re-admission. In the early 2000s, the accused engaged in concerning behaviour while psychotic, such as diverting traffic on a busy street, crashing her car and throwing objects out a window. In 2011, she was found NCRMD for assaulting a five-year-old child who she believed was sending her telepathic messages. She had pushed the child to the ground on a public sidewalk beside the road.

At the time of her most recent Board hearing, the accused had poor insight into her illness, and her psychiatrist testified that she would likely become non-compliant with her medication if not supervised. She had lived in the community with minimal supervision since May 2015 and without incident. Her psychiatrist testified that medication non-compliance would likely result in psychosis, which would likely lead to aggressive behaviours and possible homelessness.

The Board concluded that the accused continued to present a real risk of serious injury to members of the public on the basis of her index offence. This conclusion was made notwithstanding the Board's comment that it did not have enough information to conclude that the index offence itself caused serious physical or psychological harm.

The Court of Appeal again overturned the Board's decision as being unreasonable and ordered that the appellant be absolutely discharged. The court noted that, at its highest, the evidence of the appellant's psychiatrist was that, "if the appellant stopped taking her medication, it will result in de-compensation, which could lead to 'aggressive behaviour' or cause the appellant to 'act out aggressively'." The court noted there was a failure to measure this possible aggressive behaviour against the legal standard of a "risk of serious physical or psychological harm." In this context, the finding was speculative and did not meet the legal test.


In both (Re) Wall and (Re) Pellett, the Board relied on a dated history of aggressive or criminal behaviour to justify the finding of "significant threat". On appeal, the Court of Appeal made clear that more is needed, namely evidence of a real risk of serious harm. Notably, in (Re) Wall, the accused continued to exhibit active and serious signs of mental illness and was both verbally abusive and threatening towards others. However, as he had not shown signs of violence since 2004 and had not caused anyone psychological harm, the court found significant threat was not established by the evidence.

In the Wall and Pellett decisions, the Court of Appeal also reinforced the principle that an accused's best interests are irrelevant to the determination of significant threat under s. 672.54 of the Criminal Code.2 For example, in Re Pellett, while the evidence disclosed a possibility that the appellant would become homeless if granted an absolute discharge, the court was unwilling to consider this factor in making its decision. The same approach was taken in (Re) Wall, despite evidence about Mr. Wall's likely deterioration.

In our view, these two cases may signal that the Court of Appeal expects the Board to apply the Winko principles more rigorously than it has before.

That said, on October 17, 2017, the Court of Appeal released another decision which discussed the (Re) Wall decision, yet still dismissed the appeal and upheld a detention order.3 In (Re) Abdikarim, the accused had been under the Board's jurisdiction since 2004 for theft and robbery, for which there were no reports of serious harm. The court distinguished (Re) Wall as it dealt with an accused who had insight into his mental disorder and the need for medication. In contrast, the accused in (Re) Abdikarim had no insight and there was clear evidence of continual substance abuse that inevitably lead to problematic conduct, including at least one instance that caused psychological harm.

These recent decisions highlight the importance of ensuring that evidence is before the Board regarding the nature of the serious physical or psychological harm that is more than likely to occur without the Board's continued jurisdiction and, in addition, how that risk of harm arises from the accused's current mental condition and circumstances. A speculative conclusion that the accused remains a significant threat, without an evidentiary basis, will not be sufficient to support a finding of significant threat.


1 Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625; see also s. 672.5401 which defines significant threat to mean "a risk of serious physical or psychological harm to members of the public... resulting from conduct that is criminal in nature but not necessarily violent."

2 R. v. Ferguson, 2010 ONCA 810.

3 Abdikarim (Re), 2017 ONCA 793.

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions