



CITATION: Cardinal
    (Re), 2018 ONCA 892

DATE: 20181108

DOCKET: C65167

MacPherson, Hourigan
    and Miller JJ.A.

IN THE MATTER OF: Joshua
    Cardinal

AN APPEAL UNDER PART
    XX.1 OF THE
CODE

William Murray, for the appellant

Jill Cameron, for the respondent

Marie-Pierre Pilon, for the Person in Charge of the
    Royal Ottawa Health Care Group

Heard: November 2, 2018

On appeal from the disposition of the Ontario Review Board,
    dated February 21, 2018

REASONS FOR DECISION

[1]

The appellant appeals the disposition of the Ontario Review Board dated
    February 21, 2018. He seeks an absolute discharge or, in the alternative, a new
    hearing. He raises two grounds of appeal.

[2]

First, the appellant argues that contrary to the Boards findings, he
    does not pose a significant danger to the safety of the public. This is because
    he now has insight into his mental illness, acknowledges that he requires
    medication, and takes medication.

[3]

The appellant argues, and the respondents concede, that when medicated, he
    has not acted violently, and has maintained steady work and home ownership. The
    respondents also concede that the appellant has maintained this high level of
    functioning despite habitual and near daily marijuana use.

[4]

Nevertheless, matters are complicated by the appellants recent cocaine
    use. Prior to being found NCR, the appellants manic episodes were preceded by
    cocaine use and associated non-compliance with medication. Given this history,
    as well as Dr. Ahmeds concerns that cocaine use increases the risk of violence
    for persons who have a major mental disorder, the Boards concern about the
    risk of harm posed by the appellants recent return to cocaine use was
    reasonable, as was its decision not to grant an absolute discharge.

[5]

We agree with the appellant, however, that he must succeed on his second
    ground of appeal. The appellant argues that transcription errors in the Boards
    reasons entitle him to a new hearing. In at least two places, the Boards reasons
    confuse the appellant with another hospital patient, referring to that
    patients hospital report. The Attorney General of Ontario concedes that this
    error entitles the appellant to a new hearing. The hospital, however, argues
    that the disposition is nevertheless reasonable and should be upheld.

[6]

On the face of the reasons, the Board relied on irrelevant material.
    Although the hospital argues that these are merely transcription errors that
    have since been corrected and did not impact the result reached, we are unable
    to ascertain whether, or to what extent, the Boards analysis was based on the
    hospital report of a different patient. In these circumstances, a new hearing
    must be ordered.

[7]

We have been advised that the appellants annual review hearing has been
    scheduled for February 2019. In the interests of efficiency, the new hearing
    ordered herein will be in the nature of the annual review and will take the
    place of the February 2019 hearing. The parties will be permitted to lead fresh
    evidence post-dating the 2018 annual review.

DISPOSITION

[8]

The appeal is allowed and a new hearing ordered.

J.C. MacPherson J.A.

C.W. Hourigan J.A.

B.W. Miller J.A.


