



COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re)
    2015 ONCA 95

DATE: 20150210

DOCKET: C58732

Watt, Pepall and Huscroft JJ.A.

IN THE MATTER OF: Howard Kelly

AN APPEAL UNDER PART XX.1 OF THE
CODE

Howard Kelly, acting in person

Anita Szigeti, for the appellant

Philippe G. Cowle, for the Attorney General of Ontario

Barbara Walker-Renshaw, for Ontario Shores Centre for
    Mental Health Sciences

Heard and released orally: January 27, 2015

On appeal against the disposition of the Ontario Review
    Board dated, April 7, 2014.

ENDORSEMENT

[1]

Howard Kelly appeals from a disposition made by the Ontario Review Board
    on April 7, 2014, with reasons released on May 5, 2014.

[2]

The disposition under appeal was made at the conclusion of a hearing
    that combined an annual review under s. 672.81(1) and a review of a hospital
    decision to significantly increase restrictions on Mr. Kellys liberty after
    his return from his then most recent elopement from the institution.

[3]

Mr. Kelly was found not criminally
    responsible on account of mental disorder on charges of uttering threats of
    death or bodily harm and of failure to comply with a probation order on July 9,
    2008. He has been under the supervision of the Ontario Review Board since that
    time, a period of about six and one-half years.

[4]

At the Board hearing on April 3, 2014,
    Mr. Kelly was represented by counsel. He did not seek an absolute discharge,
    the disposition he now seeks on appeal from the disposition made by the Board.
    His then counsel (not Ms. Szigeti) did not contest the issue of significant
    risk. There was no suggestion that counsel was under any misapprehension about the
    substance of the significant threat standard or the capacity of the evidence
    before the Board to meet that standard. No suggestion is advanced of
    ineffective assistance of counsel.

[5]

In this court, Ms. Szigeti contends
    that the Board erred in giving effect to the position of counsel without
    discharging its inquisitorial function and making an independent determination
    that the significant threat threshold had indeed been met. Had the Board
    fulfilled its mandate, Ms. Szigeti says, it could not have been satisfied that
    Mr. Kelly was a significant threat to the safety of the public. There was no
    evidence, she urges, that Mr. Kelly constituted a real risk of physical or
    psychological harm to members of the public from conduct that is criminal in
    nature.

[6]

The Board was entitled to rely and act
    on counsels acknowledgement that the significant threat standard had been met.
    It was an acknowledgment by counsel that coincided with a robust history of
    such findings during Mr. Kellys tenure under the supervision of the Review
    Board. Moreover, the Board did not consider the prior findings to be
res
    judicata
. It turned its mind to the issue of
    significant threat and gave brief reasons to explain why it considered the
    standard to have been met. The Board also had before it the report of the
    hospital, which included the results of several psychological tests. These
    tests, albeit actuarial assessments for the most part, point to a significant
    prospect of recidivism of a nature that falls within the boundaries of the
    significant threat threshold.

[7]

Despite the brevity of the Boards
    consideration of the issue of significant threat, we are satisfied, nonetheless,
    that it gave that issue adequate consideration in the circumstances of this
    case. We do not consider that finding to be unreasonable.

[8]

The appeal is dismissed.

David Watt J.A.

S.E. Pepall J.A.

Huscroft J.A.


