COURT OF APPEAL FOR ONTARIO
MOLDAVER, SHARPE and BLAIR JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
EDDIE ANDREW ELKSMITH
Appellant
Suzan E. Fraser for the appellant
Megan Stephens for the respondent
Julie Zamprogna Balles, person in charge RMHC, St. Thomas
Heard: November 5, 2007
On appeal from the Disposition of the Ontario Review Board dated December 14, 2006 (Amended January 10, 2007).
APPEAL BOOK ENDORSEMENT
1The appellant has raised, for the first time before this court, the jurisdiction of the Board to order random sampling in the form of breath and urine samples as a condition of the appellant being allowed to reside in the community. We agree with the Crown that we should decline to hear this issue.
2The impugned condition has been in effect since May 2002 and the only reference to it at the hearing was by the appellant’s counsel, who suggested that sampling could be used to ensure compliance with her client’s request that he be allowed one drink per day.
3In these circumstances, the record is at best unclear whether the appellant consented to the sampling condition.
4It is also unclear whether the appellant’s treatment team would have recommended that he be permitted to reside in the community absent that condition.
5In declining to take this point up, it is important, as well, for this court to have a proper record. To that end, if this issue is raised at the next Board hearing, subject to the Board’s discretion, it would be helpful, if the parties or any of them wish to do so, that they be given an opportunity to lead relevant evidence on the subject.
6For all of these reasons, we decline to entertain the jurisdictional issue on this appeal.
7We see no merit on the other issues raised by the appellant.
8Accordingly, the appeal is dismissed.