



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 672.501(1), (2), or (3) of the
Criminal Code
shall continue.  These sections of the

Criminal Code
provide:

672.501 (1) Where a Review Board holds a
    hearing referred to in section 672.5 in respect of an accused who has been
    declared not criminally responsible on account of mental disorder or unfit to
    stand trial for an offence referred to in subsection 486.4(1), the Review Board
    shall make an order directing that any information that could identify a
    victim, or a witness who is under the age of eighteen years, shall not be
    published in any document or broadcast or transmitted in any way.

(2) Where a Review Board holds a hearing
    referred to in section 672.5 in respect of an accused who has been declared not
    criminally responsible on account of mental disorder or unfit to stand trial
    for an offence referred to in section 163.1, a Review Board shall make an order
    directing that any information that could identify a witness who is under the
    age of eighteen years, or any person who is the subject of a representation,
    written material or a recording that constitutes child pornography within the
    meaning of section 163.1, shall not be published in any document or broadcast
    or transmitted in any way.

(3) Where a Review Board holds a hearing
    referred to in section 672.5 in respect of an accused who has been declared not
    criminally responsible on account of mental disorder or unfit to stand trial
    for an offence other than the offences referred to in subsection (1) or (2), on
    application of the prosecutor, a victim or a witness, the Review Board may make
    an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the Review Board is satisfied that the order is necessary for the
    proper administration of justice.

Subsections 672.501(11) and (12) provide:

(11) Every person who fails to comply
    with an order made under any of subsections (1) to (3) is guilty of an offence
    punishable on summary conviction.

(12) For greater certainty, an order referred to in
    subsection (11) also prohibits, in relation to proceedings taken against any
    person who fails to comply with the order, the publication in any document or
    the broadcasting or transmission in any way of information that could identify
    a victim or witness whose identity is protected by the order.




COURT OF APPEAL FOR ONTARIO

CITATION: Hart (Re), 2018 ONCA 624

DATE: 20180711

DOCKET: C64558

Doherty, MacPherson and Rouleau JJ.A.

IN THE MATTER OF:  DAKOTA HART, A.K.A. KAELLUM WILFRED
    ERIDANI

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser and Cate Martell, for the appellant

Catherine Weiler, for the respondent Her Majesty the
    Queen

Janice Blackburn, for the respondent the Person in
    Charge of St. Josephs Healthcare Hamilton

Heard and released orally: July 5, 2018

On appeal against the disposition of the Ontario Review
    Board dated October 2, 2017, with Reasons for Disposition issued October 24,
    2017 and received by the appellant on October 24, 2017.

REASONS FOR DECISION

[1]

The appellant raises three issues:

(1)

Did the Board err in finding that the appellant posed a significant
    threat to the safety of the public?

[2]

The Boards finding that the appellant posed a significant threat is
    supported by the evidence before the Board.  The hospitals risk assessment and
    the treating psychiatrists opinion provided evidence that the appellant, at
    this time, posed a significant risk to relapse into a psychotic state.  That
    risk was exacerbated by the appellants refusal to take medication that would
    mitigate the effect of the relapse.  Finally, the appellants relatively recent
    history of serious violence directed at children while in a psychotic state
    provided further evidence of the risk posed to the public by the appellant.

[3]

The appellants unwillingness to use medication to manage his risk and
    the hospitals concerns about the appellants potential use of alcohol and/or
    marijuana, were both relevant to the determination of the risk posed by the
    appellant.  The weight to be assigned to those factors, along with the other
    factors, was for the Board.

(2)

Did the Board err in failing to consider a conditional discharge?

[4]

The Board accepted the treating psychiatrists evidence that the
    appellant was not, at this time, a candidate for a conditional discharge.  The psychiatrist
    gave reasons for advancing that opinion, all of which are supported in the
    record before the Board.  In the face of that evidence, a conditional discharge
    was not a viable option at this time.  The Board explained its reasons for
    denying the conditional discharge at para. 73.

(3)

Should condition 4(f) of the Boards disposition be amended?

[5]

The parties agree that the Boards disposition fails to track the
    intention of the Board insofar as the language of condition 4(f) of the
    disposition is concerned.  That condition should be amended to read as follows:

Refrain from attending at any public park or public swimming
    area where persons under the age of 14 are present or could reasonably be
    expected to be present; refrain from attending at any daycare centre, school
    ground, playground or community centre at times when persons under the age of
    14 are present or could reasonably be expected to be present, except when
    accompanied by hospital staff, staff from any residential accommodation
    approved by the hospital, or any approved staff.

[6]

The appeal is allowed to the extent of the variation in condition 4(f). 
    Otherwise, the disposition of the Board dated October 2, 2017 stands.

Doherty J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.


