Ontario (Review Board) v. Mirzoyan, 2010 ONCA 659

CITATION: Ontario (Review Board) v. Mirzoyan, 2010 ONCA 659

DATE: 20101007

DOCKET: C51814

COURT OF APPEAL FOR ONTARIO

Weiler, MacPherson and Armstrong JJ.A.

BETWEEN

The Person in Charge of Mental Health Centre Penetanguishene

Respondent

and

Her Majesty the Queen

Respondent

and

Tigran Mirzoyan

Appellant

Counsel:

Tigran Mirzoyan, acting in person

Jill R. Presser, as amicus curiae

Andreea Baiasu, for the respondent, Her Majesty the Queen

Heard and released orally: October 6, 2010

On appeal against the disposition order of the Ontario Review Board under s. 672.81(1) of the Criminal Code, R.S.C. 1985, c. C-46, dated November 5, 2009.

ENDORSEMENT

[1] The appellant appeals the Ontario Review Board’s (ORB) decision to continue to detain him in custody at the Oak Ridge Division of the Mental Health Centre- Penetanguishene. As part of its disposition, the ORB ordered that the appellant was permitted to have hospital and grounds privileges, escorted by staff. The appellant seeks to set aside this disposition and to be transferred to a medium security facility.

[2] On this appeal we heard submissions from the amicus, Ms. Presser, Mr. Mirzoyan himself and his father. We were very impressed with the loyalty and support of the appellant’s parents.

[3] It appears from the appellant’s notice of appeal, that he seeks escorted privileges within a ten kilometre radius of the hospital. This request was not raised at the 2009 hearing and we do not propose to deal with it. The appellant can make this request at his upcoming review hearing before the Board on October 21, 2010.

[4] We do not find it necessary to specifically address each of the other grounds of appeal raised by the appellant as, in our opinion, they are encompassed in the submissions made by the amicus.

[5] The amicus supports the appellant’s position and raises two issues. They are: (1) Did the Board reasonably consider all relevant information about the appellant, including his age? and; (2) Did the Board impose the least onerous and least restrictive disposition?

[6] Although the Board did not specifically refer to the requirements of s. 672.54, it gave appropriate consideration to the requirements of that section. In the circumstances, the Board was not obliged to undertake further inquiry and obtain further evidence. It had all the relevant information about the appellant it needed to make its disposition, including the fact that he was a young adult.

[7] While the appellant’s young adult status and the benefits of him being close to his family warrant consideration, youth and geographical proximity cannot dictate the level of security otherwise appropriate for this NCR person. For the entire preceding year, the appellant had been in the most secure ward. Medical opinion was unanimous that the appellant was not manageable in a less secure environment.

[8] Given the appellant’s frail mental condition, aggressive behaviour towards himself, co-patients and staff, as well as his inability to function in a social setting, the Board imposed the least onerous and least restrictive disposition by continuing his detention in a maximum security facility, while granting greater privileges to encourage and evaluate his progress. The appeal is dismissed.

[9] We note that the appellant’s progress will be the subject of the upcoming Board review hearing to be held October 21, 2010, and that will be the appropriate occasion to review the appellant’s situation over the last year.

“K.M. Weiler J.A.”

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”