




CITATION:
Nadery
(Re), 2011 ONCA 573



DATE: 20110902



DOCKET: C52895



COURT OF APPEAL FOR ONTARIO



Sharpe, Armstrong and Karakatsanis JJ.A.



BETWEEN



Her
          Majesty the Queen and Ontario Shores Centre for Mental Health Sciences

Respondents



and

Farzad

Nadery



Appellant



Farzad

Nadery
,
          in person

Anita Szigeti,
Amicus Curiae



Greg
Skerkowski
,
          for the Crown

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



Heard & released
          orally:
August 23, 2011



On appeal from the disposition of the Ontario Review Board dated
          August 26, 2010.



ENDORSEMENT



[1]

The Ontario Review Boards November 27, 2009
    disposition ordered that the appellant be detained with a condition allowing
    him to live in the community in accommodation approved by the hospital. On July
    20, 2010 this court allowed an appeal from that disposition substituting an
    order directing that the appellant be conditionally released and remitting the
    matter to the Board to determine the appropriate conditions. When the Board
    reconvened on August 16, 2010, all parties, including the Crown, took the
    position that the only issue for the Board was to determine the conditions of
    the conditional discharge ordered by this court. The Board disagreed and stated
    that its mandate was not so limited and that it was entitled to engage in a
    broader inquiry and to consider whether there were any circumstances that
    required a change to the conditional discharge that this court had just
    ordered. The Board further held that as it was prepared to consider that wider
    issue, the appellant was not entitled to a further annual review until July
    2011.

[2]

We agree with the submission of all counsel, including
    the Crown, that the Board erred in its interpretation of this courts July 20,
    2010 order. Section 672.78(1) of the
Criminal
    Code
gives this court the power to refer a matter back to the review board
    for a rehearing in whole or in part, in accordance with any directions that
    the Court of Appeal considers appropriate. The July 20, 2010 order was made
    pursuant to that power. The Board erred by, in effect, reviewing that order by
    purporting to engage in a full scale review of the appellant's situation. The
    Boards action was not only contrary to the order made by this court; it also
    denied procedural fairness to the appellant who was not on notice that such a
    hearing would be held. Moreover the Boards insistence that the appellants
    annual review be postponed to July 2011 denied the appellant the right to a
    mandatory annual review pursuant to s. 672. 81 of the
Criminal Code
.

[3]

The appellant asks us to grant him an absolute
    discharge. We are not satisfied that the record before us is sufficient to
    grant that order. There is no updated hospital report and no current evidence
    from the appellant's treatment team as to his present situation. In the
    circumstances it is not practicable for this court to conduct the necessary
    inquiry. Moreover, as this is an appeal from the Boards August 16, 2010
    disposition which should have been limited to the appropriate conditions, this
    appeal does not provide an appropriate vehicle to determine the issue of
    discharge. The appropriate order is to remit the matter to the Ontario Review
    Board for an immediate consideration of the appellants disposition.

[4]

Accordingly the appeal is allowed and the matter is
    referred back to a differently constituted panel of the Ontario Review Board to
    conduct a full hearing reviewing the appellants disposition forthwith.

Robert J. Sharpe J.A.

R.P. Armstrong J.A.

Karakatsanis J.A.


