



COURT OF APPEAL FOR ONTARIO

CITATION:
Breitwieser (Re), 2012
    ONCA 649

DATE: 20120928

DOCKET: C54938

Sharpe, Simmons and Epstein JJ.A.

IN THE MATTER OF:  Alf Breitwieser

J. Di Luca, for the appellant

Mabel Lai and J. Zamprogna, for the respondent

Heard: September 25, 2012

On appeal against the disposition of the Ontario Review
    Board dated, January 3, 2012.

APPEAL BOOK ENDORSEMENT

[1]

In our view, the Boards conclusion that the appellant continues to pose
    a significant risk to public safety was reasonable and well supported by the
    evidence.

[2]

However, we conclude that the Boards rejection of the recommendation of
    the treatment team that the appellant be detained subject to a condition that he
    be permitted to live in Elgin County accommodation approved by hospital was not
    supported by the evidence, was inconsistent with
Winko
and therefore,
    must be set aside as unreasonable.

[3]

The Board was plainly concerned about the capacity of the treatment team
    to monitor the appellants compliance with medication. Implicit in the Boards
    rejection of community living is the proposition that only something
    approaching perpetual daily monitoring could satisfy that concern.

[4]

This is not supported by the evidence. The majority of the medication
    the appellant receives is by way of injection at the hospital every two weeks.
    It would be immediately apparent to the treatment team if the appellant refused
    the injection medication. Moreover, it takes two weeks to decompensate if he
    does not receive the medication.

[5]

In our view, the Board also misapprehended the evidence as to the
    capacity of the treatment team to monitor the appellant tin the community. Dr.
    Roopchand testified that daily monitoring could be maintained for a certain
    period and that an appropriate level of supervision could be established
    thereafter. In the end, under the treatment teams recommendation, the
    appellant would remain subject to a detention order and therefore subject to
    immediate return to hospital should problems arise.

[6]

For these reasons, the appeal is allowed, the Boards order is set aside
    and replaced by an order containing the recommendation made by the hospital.


