DATE: 20050517

DOCKET: C42497

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GEORGE VANCURENKO (Appellant)

BEFORE:

ROSENBERG, BLAIR and JURIANSZ JJ.A.

COUNSEL:

Suzan E. Fraser

for the appellant

Robert Gattrell

for the Crown

Jim Smith

for Whitby Mental Health Centre

HEARD:

May 10, 2005

On appeal from a decision of the Ontario Review Board dated April 20, 2004.

E N D O R S E M E N T

[1] The appellant appeals from the disposition of the Ontario Review Board dated April 20, 2004 ordering that he continue to be detained at the Whitby Mental Health Centre.

[2] The Board's conclusion that the appellant continues to pose a significant threat to the safety of the public was supported by evidence that the appellant continues to have a substance abuse problem and that alcohol and/or drugs render him aggressive and violent.

[3] The Board reasoned that as the appellant regularly consumed alcohol when living on his own in the community and his risk for aggression subsequent to substance abuse remains an ongoing concern, caution must be exercised in reintegrating him to the community. The Board noted that he was managing well in a structured environment but considered his commitment to abstinence and to working with the treatment team while not under direct supervision had not been adequately demonstrated. There was evidence to support the Board’s view. Therefore the Board decided the conditions of his detention should be liberalized to allow him the opportunity to show he could monitor himself while ensuring the safety of the public. It is implicit from the Board’s reasoning, that it crafted, what in its view, was the least onerous and least restrictive disposition.

[4] The Board committed no errors of law, and the conclusion it reached was reasonable.

[5] The appellants sought to adduce fresh evidence. For the following reasons that application is dismissed. The proposed fresh evidence consists of the appellant's affidavit and various attachments including the hospital report proposed in contemplation of the appellant's annual review. As is pointed out in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 52, whether it is in the interests of justice to receive fresh evidence depends on the context. This type of evidence will not be received where it would, in effect, merely substitute the Court of Appeal for the Review Board in the conduct of the annual review. While the material filed by the appellant shows that the appellant has some grievances about the manner in which the hospital administers the current order, the fresh evidence does not show that the Board erred in law or made an unreasonable decision on the material before it. It is therefore not in the interests of justice to admit evidence that will have to be considered by the Review Board at the appellant's pending annual review. The Board, an expert tribunal, will be in a much better position to assess this evidence along with any other evidence. It will also be in a much better position to determine any question arising out of the Hospital's execution of its order. Had the appeal been allowed the fresh evidence might have been relevant to the issue of remedy.

[6] Accordingly, the appeal is dismissed.

“M. Rosenberg J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”