Background
David Small was found not criminally responsible in 2017 on a charge of first degree murder after fatally stabbing his partner in 2015. He has schizophrenia and, following years in hospital, moved in 2024 to staffed transitional housing while remaining subject to a detention disposition.
At his September 2025 annual review, Small accepted that he remained a significant threat to public safety but sought a conditional discharge. The Ontario Review Board continued his detention. Soon afterward, he was readmitted to hospital with life-threateningly high blood glucose levels associated with newly diagnosed diabetes, impaired judgment, and a risk of psychiatric decompensation. His former housing could no longer accommodate him. The Board found the resulting restriction of liberty necessary and appropriate.
The Court’s Holding
The Court of Appeal dismissed both appeals. The detention disposition was reasonable because Small had only recently entered the community and still required substantial structure and supervision to ensure antipsychotic-medication adherence, manage stressors including diabetes, and safely transition between housing placements.
The court held that the Board had improperly focused on Mental Health Act admission mechanisms instead of squarely assessing whether a Young clause could address readmission concerns under a conditional discharge. But that error did not make the overall disposition unreasonable: the Board had independent, evidence-based reasons for continued detention. The liberty restriction was also reasonable because Small’s uncontrolled diabetes and limited insight created a real risk of psychiatric decompensation, connecting his medical instability to public-safety risk.
Key Takeaways
- A Review Board must select the least onerous and least restrictive disposition compatible with public safety.
- When considering conditional discharge, the Board should properly assess whether a Young clause and other conditions could adequately manage risk.
- Medical instability may justify a liberty restriction where the evidence establishes a link to psychiatric decompensation and public-safety risk.
Why It Matters
The decision confirms that an error in the Board’s analysis of one proposed safeguard will not require appellate intervention where the record independently supports detention. It also underscores that NCR dispositions may account for housing, treatment adherence, and non-psychiatric health conditions when they materially affect psychiatric stability and public safety.
The court noted the serious consequences of the decisions, including Small’s loss of community housing. If the Board later finds hospital restriction unnecessary, it should require the hospital to make all reasonable efforts to avoid delay in securing suitable approved housing.