Kelly (Re), 2014 ONCA 269

Court of Appeal for Ontario

Citation: Kelly (Re), 2014 ONCA 269
Date: 2014-04-03
Docket: C57844

Judges: Sharpe, Cronk and Juriansz JJ.A.

In the Matter of Howard Kelly
An Appeal under Part XX.1 of the Code

Counsel:
Anita Szigeti, as amicus curiae
Howard Kelly, in person
G. Choi, for the Crown
E. Krajewska, for Ontario Shores

Heard: March 27, 2014

On appeal from the disposition of the Ontario Review Board dated July 8, 2013.

Reasons for Decision

By the Court:

1The appellant appeals the disposition of the Ontario Review Board, dated July 8, 2013, ordering that he be detained at the General Forensic Service of the Ontario Shores Centre for Mental Health Services with provision for certain privileges at the discretion of the person in charge, including passes of up to 10 hours to enter the community.

2The appellant submitted to us that the Board erred in failing to consider an absolute discharge and amicus suggested that a conditional discharge should have been considered. There is clear evidence that the appellant continues to suffer from a serious mental illness and that he continues to pose a significant risk to the community. It was not unreasonable for the Board to refuse any form of discharge.

3However, we agree with amicus that the Board erred in refusing a provision requested by the Hospital permitting the person in charge to allow the appellant to live in 24-hour supervised accommodation.

4The treatment team did not consider Mr. Kelly ready for discharge into the community in the next year but requested the provision for two reasons.

5First, and most significant, the treating psychiatrist testified that the treatment team was concerned that the appellant had become institutionalized and

…in order to try to help Mr. Kelly move into the community, we wanted to be able to still have that option open... If the clause was not there, it would or could only strengthen Mr. Kelly’s sense of being discouraged to even bother trying, just to become more settled in the hospital. At least having this community option open might give us something to help him work towards…

6We observe that the treating psychiatrist’s evidence in that regard corresponds with the view expressed by this court on two prior appeals by this appellant. This court commented that close attention should be paid both by the Hospital and by the Board to the objective of the appellant’s ultimate reintegration into the community: See 2010 ONCA 140 at para. 1; 2013 ONCA 142 at para. 8.

7The second reason for requesting the provision was that as the waiting list for such accommodation, in the words of the treating psychiatrist, is “exceptionally long”, the requested provision would allow the treatment team to put the appellant on the waiting list and thereby avoid delay when it becomes appropriate to move him to such accommodation.

8The Board refused to order the recommended provision for the following reason:

As it appears from the evidence, that it is unlikely he will become ready for discharge into a 24-hour supervised home during the ensuing year; the added provision of community living in approved accommodation would be inappropriate, and cannot be justified for the sole reason of placing him on a waiting list, for a placement which he will not be able to use.

9We agree with Ms. Szigeti that the Board misapprehended the evidence and erred in law in refusing to order the provision recommended by the Hospital.

10It was a misapprehension of the evidence to find that the Hospital recommended the provision “for the sole reason of placing him on a waiting list”. It is clear from the psychiatrist’s evidence that the recommendation was also motivated by the need from a treatment perspective to motivate the appellant towards achieving integration in the community and to discourage his tendency to fall back on institutionalization.

11It is also our view that the Board erred in law by refusing to consider the provision solely on the ground that the appellant would not be able to use it during the current year. The Board’s refusal was inconsistent with the overriding need to achieve a disposition that is the least onerous and least restrictive. As a practical matter, there is a shortage of places in supervised accommodation and a significant waiting list. In our view, the Board should take that practical reality into account, especially where there is evidence that the requested provision is also recommended for therapeutic reasons. The inevitable result of the Board’s refusal to consider the provision recommended by the treatment team would be to subject the appellant to a more severe restraint than is warranted by his condition. If the Board was concerned that the treatment team might use the provision prematurely, it could have made provision for reporting or returning to the Board for approval before it was implemented.

12We were informed that a hearing pursuant to s. 672.56(2)(b) of the Criminal Code on account of the restriction of the appellant’s liberty having been increased significantly was scheduled for April 3. The basis for that request is reflected by the fresh evidence presented by the Hospital.

13In these circumstances, although it is our view that the Board erred, we make no order to alter the disposition under appeal given the fresh evidence and the changed circumstances.