R. v. Nadery, 2010 ONCA 536

1We would allow the appeal. The Board was told that the appellant’s mother would likely be accepted as an “approved person” in the immediate future. This was an important issue in the case as the appellant could only live in the community with an approved person. Under the authority of Winko at para. 54, the Board should have directed that the necessary inquiries be finalized forthwith so that the information could be available to the Board in making its decision.

2The Board also misapprehended an important part of the evidence. The Board noted that the appellant had been in the community only when accompanied by hospital staff. The Board placed some emphasis on the absence of any “track record” that the appellant could operate in the community. In fact, there had been a number of unescorted passes into the community. The appellant had performed well. In light of these errors, we think the appeal must be allowed.

3In the circumstances of this case, especially in light of the appellant’s conduct since he has been living in the community with his mother and his willingness to consent to a term in his release order that would require him to take the course of treatment prescribed by the treatment team (including the prescribed drugs), we think it is appropriate to substitute an order directing that the appellant be conditionally released.

4We would remit the matter to the Board to determine the appropriate conditions. Given the history of this matter, it is imperative that the hearing before the Board take place as soon as possible. Hopefully, many, if not all, of the terms will be agreed upon. If counsel encounter difficulties arranging a hearing in a timely fashion, they may arrange a conference call with me.