DATE: 20050412

DOCKET: C42286

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent ) – and – CAMERON HARLEY (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and GOUDGE JJ.A.

COUNSEL:

Anita Szigeti

for the appellant

Philip Perlmutter

for the respondent

HEARD & RELEASED ORALLY:

April 12, 2005

On appeal from the Disposition of the Ontario Review Board dated April 15, 2004.

E N D O R S E M E N T

[1] There are three issues raised by this appeal. The principal submission is that the decision is unreasonable. In 2003, the view of the Hospital was that the appellant remained a significant threat to public safety. The reasons for that conclusion are set out at page 8 of the 2003 Disposition. In 2004, the Hospital through Dr. Stewart took the view that the appellant no longer represented a significant risk and recommended an absolute discharge. The appellant and the Crown agreed with that position.

[2] Since 2003 there had been two changes in circumstances. It appears that the appellant had been free of illicit drug use and Dr. Stewart was of the view that the appellant now had insight into the relationship between his substance abuse and his behaviour. The Board concluded that Dr. Stewart’s opinion was not supported by the evidence. The Board relied on the fact that the appellant had not shown a period of remission in relation to substance abuse, had not been involved in a program of treatment for substance abuse or relapse prevention, and was an unreliable historian. In the face of this evidence, the Board was of the view that the appellant’s insight was not sufficient to manage the risk factor. We do not read the reasons of the Board as requiring that the appellant take any particular treatments. Rather, it was the combination of the lack of a sufficient track record and, in the circumstances, the lack of programming that meant that the appellant was still a significant risk to public safety.

[3] Although the case is a close one, given the deference owed to the expert tribunal, on the record before it, we cannot say that the Board’s decision was unreasonable.

[4] The second submission is that the Board reversed the burden of proof. The Board articulated the proper test and we are satisfied that when the reasons are read as a whole, they did not reverse the burden of proof.

[5] The third issue concerns a question of procedural fairness. Counsel for the appellant in oral argument raised the question of whether the Board should have given the appellant express notice that it intended to reject the joint submission. We think it was clear from the many questions of Dr. Stewart that the Board was concerned about his opinion and thus, the appellant had notice of the Board’s concerns. In its reasons the Board explained why it could not accept the position of the Hospital and hence the joint submission. Nothing more was required. In the circumstances, we need not decide what obligation, if any, the Board owes to an accused to give express notice of its concerns in the face of a joint submission.

[6] Accordingly, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“M.J. Moldaver J.A.”

“S.T. Goudge J.A.”