



COURT OF APPEAL FOR ONTARIO

CITATION: Gonsalves (Re), 2018 ONCA 904

DATE: 20181109

DOCKET: C65111



Feldman, Roberts and Fairburn JJ.A.

IN THE MATTER OF: Errol Gonsalves

AN APPEAL UNDER PART XX.1 OF
    THE
CODE

Anita Szigeti, for the
    appellant

Rebecca Schwartz, for the Attorney General of Ontario

Michele Warner, for the Centre for Addiction and Mental
    Health

Heard: November 8, 2018

On appeal from the disposition of
    the Ontario Review Board, dated January 16, 2018.

REASONS FOR
    DECISION

[1]

The appellant appeals the
    disposition of the Ontario Review Board (the Board) dated January 16, 2018.
    He seeks a conditional discharge or, in the alternative, a new hearing.

[2]

On September 21, 2017, the appellant was found not criminally
    responsible in relation to several serious impaired driving and assault charges
    against random members of the public, which occurred when he was in a manic
    state and under the influence of drugs and alcohol.  He has since been
    diagnosed with Bipolar Affective Disorder and Substance Use Disorders (Alcohol
    and Cannabis, in remission) and has been taking mood-stabilizing and
    anti-psychotic medications to control the symptoms of his illnesses.

[3]

This appeal arises out of unusual circumstances.  Following the hearing
    on January 16, 2018, the Board issued its disposition that the appellant be
    detained at the General Forensic Unit of the Centre for Addiction and Mental
    Health (CAMH), Toronto.  On March 5, 2018, the Board released its reasons in
    support of that disposition, only those reasons granted the appellant a
    conditional discharge.  On March 8, 2018, the Board issued Fresh Reasons for
    Disposition, containing material amendments to its earlier reasons, concluding
    with a detention order, as provided for in its disposition of January 16.

[4]

The Attorney General and CAMH concede that, in the light of the Boards
    unexplained and materially conflicting sets of reasons, the January 16 disposition
    cannot stand, and the appeal must be allowed.  They submit a new hearing is the
    only appropriate remedy in the unfortunate circumstances of this case.

[5]

We agree that there must be a new hearing. It is understandable why the
    appellant feels that an injustice has been done. However, with the fluctuation
    between a detention order, to reasons in support of a conditional discharge, to
    reasons in support of the original detention order, it is impossible to know
    with any degree of certainty what the Board intended. This is particularly so
    in light of the fact that the Board did not explain how or why the different
    sets of reasons came to be.

[6]

Time is of the essence and a
    new hearing must be scheduled at the earliest possible date and not more than
    three weeks from the day of this order. We have been advised that the
    appellants annual review hearing has been scheduled for January 2019. The new
    hearing will not replace the annual review. At the November 2018 hearing, the
    parties will be permitted to lead fresh evidence post-dating the January 16,
    2018 hearing
, including any information required from any collateral
    sources.

Disposition:

[7]

For these reasons, the appeal is allowed.  A new hearing is ordered to
    take place within the next three weeks before a differently constituted panel.

K. Feldman J.A.

L.B. Roberts
    J.A.

Fairburn J.A.


