



COURT OF APPEAL FOR ONTARIO

CITATION: Omiyi (Re), 2019 ONCA 911

DATE: 20191120

DOCKET: C66849

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

IN THE
    MATTER OF: BENJAMIN OMIYI

AN
    APPEAL UNDER PART XX.1 OF THE
CODE

O. Benjamin Vincents, for the appellant

Gregory Furmaniuk and Michele Warner, for the respondent

Heard and released orally: November 15, 2019

On appeal from the disposition
    of the Ontario Review Board, dated March 21, 2019.

REASONS FOR DECISION

[1]

There are two issues: 1) did the Board err in not granting some form of
    discharge; 2) if the Board properly made a detention order, did the Board err
    in not including a term allowing the appellant to live in the community in
    accommodation approved by the Hospital?

Did the Board err in making a detention order?

[2]

The Board accepted Dr. Ramshaws evidence. On that evidence, a detention
    order was the only viable order at this stage of the appellants progress. The
    Board provided no separate analysis of the feasibility of a conditional
    discharge. It would have been better had the Board specifically addressed that
    possible disposition. However, in our view, the unconditional acceptance of the
    Hospitals evidence clearly carried with it the determination that a detention
    order was essential at this time. We would not give effect to this ground of
    appeal.

Did the Board err in not including a term allowing for the
    possibility of community living?

[3]

The Hospital recommended a number of terms that it suggested should be
    attached to the detention order. Those terms were all aimed at facilitating the
    reintegration of the appellant into the community if public safety and the
    appellants condition so warranted. The Board accepted all of the proposed
    conditions, except one. The Hospital had recommended that the appellant be
    allowed to live in the community in accommodation approved by the Hospital. The
    Hospital felt that there was a possibility that the appellant may be ready to
    live in the community, and more specifically at home in the ensuing year. The
    Crown supported this condition.

[4]

The Board made no reference to the Hospitals position on this term and,
    in fact, misunderstood the position as providing for a detention order on the
    same terms as the previous order. The Board misapprehended the Hospitals
    position and, in doing so, failed to consider the evidence as it related to
    that position.

[5]

The evidence, in our view, went all one way on this point. It fully
    supported the Hospital's recommendation that a community living term should be
    included in the detention order. The Boards failure to consider that position
    and the underlying evidence, in our view, constitutes an error in law and
    resulted in an unreasonable disposition.

[6]

We have considered the appropriate remedy. The Hospital suggests a new
    hearing. In our view, on this evidence, the only reasonable disposition would
    have been a detention order that included the provision allowing for community
    living at an accommodation approved by that Hospital. We would allow the appeal
    to the extent of upholding the detention order, but inserting in that detention
    order a clause to that effect. To that extent, the appeal is allowed.

Alexandra Hoy A.C.J.O.

Doherty J.A.

B. Zarnett J.A.


