



COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re), 2021 ONCA 782

DATE: 20211105

DOCKET: C69092

Rouleau, Huscroft and Thorburn JJ.A.

IN THE MATTER OF: Cindy Kelly

AN APPEAL UNDER PART XX.1 OF THE
CODE

Anita Szigeti and Tanner Blomme, for the appellant

Khorshid Rad, for the respondent, Attorney General of
    Ontario

Julie Zamprogna, for the respondent, Southwest Centre
    for Forensic Mental Health Care

Heard: October 29, 2021 by video conference

On appeal from the disposition of the Ontario Review
    Board, dated February 10, 2021, with reasons dated March 2, 2021.

REASONS FOR DECISION

[1]

It is not contested that the appellant poses a significant risk to the
    safety of the public. The sole issue on this appeal is whether a detention
    order was the least onerous and least restrictive disposition. The appellant
    argues that she should have received a conditional discharge.

[2]

The appellant argues that the Board failed to make a number of inquiries
    relevant to granting a conditional discharge and that it was unreasonable to
    deny her a conditional discharge. For example, the Board failed to meaningfully
    consider or inquire into the housing of the appellant at her husbands home in
    Lambton County.

[3]

We disagree.

[4]

The Board considered and rejected a conditional discharge for two
    primary reasons: the need to facilitate the appellants return to the hospital
    if necessary and the need to approve her housing in the community.

[5]

The Board found that recourse to the
Mental Health Act
, R.S.O. 1990, c. M.7,
had been
    inadequate to manage the risk the appellant poses in the past and could not be
    relied upon in the future. The appellant had a history of supervision failure
    immediately prior to her NCR finding. She remains incapable of making treatment
    decisions and has limited insight into her mental illness and treatment
    requirements. She left hospital against medical advice on several occasions and
    on one occasion soon returned to the scene of the index offence.

[6]

We see no error in the Boards decision and no basis to intervene on
    appeal. Contrary to the appellants submissions, the Board did not fail to
    exercise its inquisitorial function. It specifically considered the inclusion
    of a
Young
provision, but considered it inadequate because the
    hospital would have no power to detain the appellant unless she agreed to
    voluntary readmission or remained certifiable under the
Mental Health Act
 clearly a problem in light of the appellants history of refusing to stay in
    hospital and non-compliance. Moreover, the appellant had been unable to receive
    substance abuse counselling she required, as a result of the COVID pandemic.

[7]

As for housing, it is well established that the appellants residence is
    a relevant consideration in determining the management of risk to public safety:
    see e.g.,
Munezero (Re)
, 2017 ONCA 585, at para. 9.

[8]

The Board found that the appellant requires professional support,
    supervision, and monitoring for community accommodation, as unstable housing
    had been a risk factor for her methamphetamine use and criminal behaviour.

[9]

This is not, as the appellant submits, a case such as
Williams (Re)
,
2021 ONCA 90, where the hospital can be faulted for failing to assess the
    adequacy of available housing options. First, unlike
Williams
, the
    hospital did not consider the appellant ready to live in the community. The
    hospital needed to know the outcome of therapy before allowing the appellant to
    reside in the community.

[10]

Second,
    the Board was not satisfied that her needs would be met if she lived with her
    husband. There was evidence that the appellants relationship with her husband
    was not good, including a prior restraining order against him. The appellant
    and her husband had been separated and homeless prior to her admission to the
    hospital. He had little in-person contact with her, and she had previously made
    it clear to her treatment team that she did not want her husband involved in
    her care until she was granted an absolute discharge. He was not designated as an
    approved person or as her substitute decision maker and the appellant had
    denied the treatment team permission to allow them to contact him.

[11]

In
    these circumstances, the Boards finding that a conditional discharge was
    inappropriate cannot be said to be unreasonable.

[12]

The
    appeal is dismissed.

Paul Rouleau J.A.

Grant Huscroft J.A.

J.A. Thorburn J.A.


