Organizations cite A2J, urge AG to assist as Ontario Review Board moves to in-person hearings

By Amanda Jerome

Law360 Canada (August 22, 2023, 2:19 PM EDT) -- Two legal organizations are raising the alarm after the Ontario Review Board (ORB) decided to move all hearings in person as of Sept. 1, allowing “virtual access only in cases of demonstrated undue hardship, on application and on a case by case basis.” The organizations, which represent unfit and not criminally responsible (NCR) accused under the jurisdiction of the board, have called on the attorney general (AG) and ombudsman of Ontario to assist in ensuring the board follows its “own Policy on Consultation.”

In a letter to Attorney General Doug Downey and the Office of the Ombudsman of Ontario, issued Aug. 16, the Law and Mental Disorder Association (LAMDA) and Women in Canadian Criminal Defence (WiCCD) highlighted serious access to justice concerns for clients with no virtual hearing availability.

“The adverse impact of the ORB’s unilaterally imposed new directive on vulnerable NCR accused with serious mental health issues is already being felt on the ground,” the letter explains, noting that many clients have “already lost their counsel of choice who will not travel for these hearings.”

“Many have been forced to attend in person when their own preference would be to participate, again, virtually, as they have become used to doing over the last 3.5 years. For many of our clients, a virtual attendance is much less anxiety-provoking, than appearing in person,” the letter added.

The letter stressed that “access to justice issues triggered by mandating in person attendance at every facility across the province are mounting” and consultation “with the clients and our bar is now becoming urgent.”

Anita Szigeti, Law and Mental Disorder Association

Anita Szigeti, Law and Mental Disorder Association

Anita Szigeti, president of LAMDA and secretary of WiCCD, told Law360 Canada that the “impetus for writing to the AG and the ombudsman was to enlist their assistance to ensure that the ORB complies with its statutory obligations and their own Policy on Consultation with respect to this very significant change in its procedures.”

“However, as time is ticking and NCR persons are continuously prejudiced, the urgency of the situation is mounting. We are hopeful that someone can persuade the board to facilitate hybrid access to its hearings on an enduring basis,” she added, hoping that hybrid hearings will “be the policy going forward.”

Szigeti noted that if “the issue cannot be resolved through consultation, it once again leaves the vulnerable mentally ill accused to litigate it.”

“When accused persons were concerned that this tribunal was proceeding to hold hearings virtually even where the accused person objected, we had to litigate that issue. Consultation with the clients and our bar is a cheaper and less adversarial solution to issues of tribunal process,” she said.

“We should be able to resolve process issues through meaningful dialogue, an opportunity for justice system participants directly affected to contribute their voice and views. We certainly hope we don't find ourselves back in court on the flipside of the same issue now, given that apart from the board, there appears to be universal agreement that hybrid access is necessary,” she explained.

Szigeti emphasized that “all administrative tribunals in Ontario are required to conduct themselves in a transparent and accountable manner and are required to consult when significant changes in relation to their practices, policies or procedures are contemplated.”

“On behalf of our clients and lawyer members, we were hoping to ensure that the Ontario Review Board consults on the proposed return to in person proceedings. As we were not successful in persuading the board to consult with us and our clients, we chose to seek some assistance from the AG and the ombudsman in that regard,” she added.

LAMDA and WiCCD first wrote to the ORB in May when they were alerted to “rumours of in person proceedings.” Szigeti noted that the bar had “no formal or informal notice of the proposal” at that time.

“Many of the concerns we flagged in our earlier correspondence have since begun to crystallize. It came to our attention that many NCR accused were left without counsel because their lawyers were unable to travel to hearings across the province. Some of these vulnerable clients have now lost their counsel of choice, with whom they had long-standing relationships,” she explained.

According to Szigeti, “in person hearings at some hospitals started in mid-July and patient advocates were scrambling to find other lawyers for clients who suddenly found themselves unrepresented.”

“Many lawyers wrote to the board asking that hybrid access be available, but we were advised that we had to get consent of all parties and also, we had to arrange hospitals to provide virtual access and that this accommodation would only be available, subject to review and approval by the hearing panel, until September 1. After that only demonstrated undue hardship and a formal application to the chair or alt chair could possibly allow for virtual attendance and only in rare, exceptional cases,” she said, stressing that this situation is “not acceptable to our clients and severely prejudices their access to justice and their right to counsel of choice.”

In the initial letter to the ORB, issued May 17, LAMDA and WiCCD noted that many of their members had indicated that “being forced to attend all ORB hearings in person regardless of jurisdiction, distance, whether it’s a consent proceeding or likely to be adjourned, etc, would be the proverbial ‘straw that broke the camel’s back.’ ”

“Given that it is already increasingly difficult to justify taking all legal aid mental health cases in particular because of how long they take, a forced in person attendance in every case is likely to mean that many, if not most defence lawyers would no longer be able to represent clients in mental health matters, unless virtual attendance remains an option,” the letter explained.

Szigeti noted that the ORB “conducts close to 2,000 hearings province-wide annually for 1,600-1,700 unfit and NCR accused.”

“Nearly all of these vulnerable individuals are legally aided and all have serious mental disorder, by definition,” she said, noting that while moving hearings to Zoom during the pandemic was, at first, a difficult adjustment, the benefits quickly became apparent.

“The feedback we got was that the option of attending virtually was very important to many of our clients. For many, it is difficult to attend at the hospital for their hearing, and they would require staff assistance to do so. There is a cost involved and barriers to leaving their homes if they are in the community. Even those in the hospital sometimes prefer to attend by Zoom rather than in person. There are tangible benefits Zoom hearings offer over in person attendance of this particular tribunal, such as private ‘break-out rooms,’ where some hospitals do not have private counsel meeting rooms at all,” she said.

“The world has changed since pre-pandemic days. Lawyers have obligations elsewhere, including virtually. Legal aid doesn't cover travel for these hearings and counsel on legal aid retainers cannot afford to spend three hours a day travelling for a 1.5-hour proceeding,” she explained, stressing that “counsel of choice is incredibly important for this client group who often have trust issues and may take years to build a relationship with their lawyer.”

Szigeti noted that these vulnerable clients “cannot simply be transferred to local counsel” as there’s also a “shortage of expertise in this area of law in smaller jurisdictions.”

“These clients rely on being able to maintain their lawyers whether they are moved to another hospital or not. Since Zoom hearings were introduced, NCR clients transferred across the province were able to keep their own lawyers because hearings were virtual. Depriving them of this is an injustice to them,” she said, also noting that during the pandemic “NCR clients were able to have their families and supports attend virtually and this was a huge comfort for them.”

“Whether as witnesses or observers, this level of additional support is extremely important for these vulnerable individuals. Having supportive family attend and testify also results in better outcomes for the clients and ensures that these hearings are full and fair, with the board receiving all the evidence in favour of the accused person it is required to seek out as a board of inquiry,” she added.

As for a backlog, Szigeti predicts “things will definitely get worse” after Sept. 1 when in-person hearings commence in earnest.

“The board had already pre-scheduled all of its hearings, to proceed virtually, into March of 2024, when it suddenly changed to in person proceedings. Where parties were able to attend those hearings virtually, they may not be able to do so in person,” she said, noting that some clients are already looking at a three-month delay due to the change in hearing format.

“This board functioned best and most effectively and efficiently during the pandemic when its hearings were held virtually. Hybrid access would allow it to maintain those gains and continue to ensure that mandatory annual review hearings are held on time, and urgent hearings can be convened quickly,” she stressed.

LAMDA and WiCCD’s position is that “hybrid access to these proceedings across the province must be granted to anyone who requires it,” Szigeti explained.

“Virtual access must be facilitated by the review board. Without this access, most criminal defence lawyers who have a small number of clients under this board’s jurisdiction will no longer represent those clients at all. Other counsel will not be able to travel to represent some of their clients in other jurisdictions. This will leave many vulnerable mentally ill clients without representation or competent representation. This is a huge access to justice barrier and massively prejudicial for NCR persons,” she emphasized.

According to Szigeti, the organizations have received no response from “anyone in government.”

In response to request for comment, the ORB directed Law360 Canada to a statement posted on its website on Aug. 1 regarding the “procedure for resumption of in-person hearings.”

“The Board acknowledges that conducting pre-hearing proceedings either virtually or by teleconference has increased the efficiency of those proceedings, and this will continue. However, the Board also recognizes that in-person participation and advocacy remain essential features of our justice system when substantive decisions affecting liberty are made,” the statement explains.

“As a result, as was the case before the pandemic, Board hearings will be public, and will presumptively be held in-person. Participants, including any persons assisting participants at a hearing, witnesses and observers will be expected to attend in person absent exceptional circumstances, including undue hardship,” the statement added.

The Ministry of the Attorney General did not respond to requests for comment before press time.

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