



COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re) , 2014 ONCA 269

DATE: 20140403

DOCKET: C57844

Sharpe, Cronk and Juriansz JJ.A.

In
    the Matter of Howard Kelly

An
    Appeal under Part XX.1 of the Code

Anita Szigeti, as
amicus curiae

Howard Kelly, in person

G. Choi, for the Crown

E. Krajewska, for Ontario Shores

Heard: March 27, 2014

On appeal from the disposition of the Ontario Review
    Board dated July 8, 2013.

By the Court:

[1]

The appellant appeals the disposition of the Ontario Review Board, dated
    July 8, 2013, ordering that he be detained at the General Forensic Service of
    the Ontario Shores Centre for Mental Health Services with provision for certain
    privileges at the discretion of the person in charge, including passes of up to
    10 hours to enter the community.

[2]

The appellant submitted to us that the Board erred in failing to
    consider an absolute discharge and
amicus
suggested that a conditional
    discharge should have been considered. There is clear evidence that the
    appellant continues to suffer from a serious mental illness and that he
    continues to pose a significant risk to the community. It was not unreasonable
    for the Board to refuse any form of discharge.

[3]

However, we agree with
amicus
that the Board erred in refusing a provision
    requested by the Hospital permitting the person in charge to allow the
    appellant to live in 24-hour supervised accommodation.

[4]

The treatment team did not consider Mr. Kelly ready for discharge into
    the community in the next year but requested the provision for two reasons.

[5]

First, and most significant, the treating psychiatrist testified that
    the treatment team was concerned that the appellant had become
    institutionalized and

in order to try to help Mr. Kelly move into the community, we
    wanted to be able to still have that option open... If the clause was not
    there, it would or could only strengthen Mr. Kellys sense of being discouraged
    to even bother trying, just to become more settled in the hospital. At least
    having this community option open might give us something to help him work
    towards

[6]

We observe that the treating psychiatrists evidence in that regard
    corresponds with the view expressed by this court on two prior appeals by this
    appellant. This court commented that close attention should be paid both by the
    Hospital and by the Board to the objective of the appellants ultimate
    reintegration into the community: See 2010 ONCA 140 at para. 1; 2013 ONCA 142
    at para. 8.

[7]

The second reason for requesting the provision was that as the waiting
    list for such accommodation, in the words of the treating psychiatrist, is
    exceptionally long, the requested provision would allow the treatment team to
    put the appellant on the waiting list and thereby avoid delay when it becomes
    appropriate to move him to such accommodation.

[8]

The Board refused to order the recommended provision for the following
    reason:

As it appears from the evidence, that it is unlikely he will
    become ready for discharge into a 24-hour supervised home during the ensuing
    year; the added provision of community living in approved accommodation would
    be inappropriate, and cannot be justified for the sole reason of placing him on
    a waiting list, for a placement which he will not be able to use.

[9]

We agree with Ms. Szigeti that the Board misapprehended the evidence and
    erred in law in refusing to order the provision recommended by the Hospital.

[10]

It
    was a misapprehension of the evidence to find that the Hospital recommended the
    provision for the sole reason of placing him on a waiting list. It is clear
    from the psychiatrists evidence that the recommendation was also motivated by
    the need from a treatment perspective to motivate the appellant towards
    achieving integration in the community and to discourage his tendency to fall
    back on institutionalization.

[11]

It
    is also our view that the Board erred in law by refusing to consider the provision
    solely on the ground that the appellant would not be able to use it during the
    current year. The Boards refusal was inconsistent with the overriding need to achieve
    a disposition that is the least onerous and least restrictive. As a practical
    matter, there is a shortage of places in supervised accommodation and a significant
    waiting list. In our view, the Board should take that practical reality into
    account, especially where there is evidence that the requested provision is
    also recommended for therapeutic reasons. The inevitable result of the Boards
    refusal to consider the provision recommended by the treatment team would be to
    subject the appellant to a more severe restraint than is warranted by his
    condition. If the Board was concerned that the treatment team might use the provision
    prematurely, it could have made provision for reporting or returning to the
    Board for approval before it was implemented.

[12]

We
    were informed that a hearing pursuant to s. 672.56(2)(b) of the
Criminal Code
on account of the restriction of the appellants liberty having been increased
    significantly was scheduled for April 3. The basis for that request is
    reflected by the fresh evidence presented by the Hospital.

[13]

In
    these circumstances, although it is our view that the Board erred, we make no
    order to alter the disposition under appeal given the fresh evidence and the
    changed circumstances.

Robert J. Sharpe J.A.

E.A. Cronk J.A.

R.G. Juriansz J.A.

Released: April 3, 2014


