





CITATION:
Elster (Re), 2011 ONCA 701



DATE: 20111110



DOCKET:  C53326



COURT OF APPEAL FOR ONTARIO



Doherty, Goudge and Epstein JJ.A.



BETWEEN



Her Majesty
          the Queen and Centre for Addiction and Mental Health



Respondents



and



Lior
          Elster



Appellant



Lior Elster, appearing in person

Anita Szigeti, as
amicus curiae



Matthew Asma, for the respondent, Attorney General of Ontario

Jean Buie, for Centre for Addiction and Mental Health



Heard:
October 27 and 31, 2011



On appeal from the disposition of the Ontario Review Board
          (ORB) dated February 22, 2011.



ENDORSEMENT



[1]

We conclude that the Board did not act unreasonably in imposing a
    detention order.  We are, however, satisfied that para. 2(g) of that order
    cannot stand.  That paragraph allows Mr. Elster to live in the community, but
    requires that he do so in supervised accommodation approved by the person in
    charge.

[2]

There were no submissions made to the Board as to the meaning of, or
    need for supervised accommodation in the circumstances of this case.  The
    first reference to supervised accommodation appeared in the Boards reasons
    delivered in May 2011.

[3]

On appeal, counsel advised the court that the phrase supervised
    accommodation has no single meaning in the context of Board orders.  The meaning
    varies from institution to institution and from time to time at the same
    institution.  Supervised accommodation can vary from 24-hour a day supervision
    in an approved location to supervision for a number of hours a day at a group
    home.  Whatever the meaning of the phrase, there are significant resource
    limitations that restrict the availability of supervised accommodation.

[4]

The Board should not have imposed the term in subparagraph (g) without
    allowing the parties an opportunity to make submissions as to the need for,
    meaning of, and availability of supervised accommodation in Mr. Elsters
    particular circumstances.  In effect, the Board imposed a further limitation of
    Mr. Elsters liberty without any submissions as to the need for that limitation
    and without a clear understanding of the effect of that limitation on Mr.
    Elster.

[5]

The ORB was concerned about Mr. Elsters unexplained relapse less than a
    year earlier.  That relapse and the nature of the index offence justified the
    detention order.  The Board was also concerned that Mr. Elster should not live
    with his father at the present time.  That concern was also justified on the
    evidence and could have been addressed by a specific term in the order
    directing that Mr. Elster not be allowed to reside with his father.

[6]

We were advised in oral argument by counsel for the Centre for Addiction
    and Mental Health (CAMH) that it interprets the order requiring supervised
    accommodation as referring to accommodation in which Mr. Elster resides in a
    place where he receives a minimum of four hours a day direct supervision. 
    According to counsel for CAMH, that kind of facility would in all likelihood
    not be available for Mr. Elster before his next review in February 2012.

[7]

Counsel for CAMH takes the position that there was no evidence to
    justify limiting the potential approved accommodation to supervised
    accommodation as that phrase is used by CAMH.  Ms. Szigeti joins in that
    submission.  The Crown argues that there was some evidence to support the
    Boards order.

[8]

The Boards failure to entertain submissions from the parties before
    imposing a supervised accommodation limitation on Mr. Elsters liberty,
    combined with the uncertainty as to the meaning of that phrase, compels the
    conclusion that the Board erred in law in unilaterally imposing that term.  We
    also agree with the submission that if the term supervised accommodation is
    given the least intrusive meaning used by CAMH, that is four hours a day of
    direct supervision, there was no evidence to justify that limitation on Mr.
    Elsters liberty.

[9]

We would allow the appeal and vary the order to provide that Mr. Elster
    could not be permitted to live in the community with his father, but could
    otherwise be permitted to live in the community in accommodation to be approved
    by the person in charge of CAMH.

Doherty J.A.

S.T. Goudge J.A.

G.J.
    Epstein J.A.


