Court of Appeal for Ontario

Date: 2004-04-14 Docket: C40899

Re: Her Majesty the Queen (Respondent) – and – Vata Skrela (Appellant)

Before: Rosenberg, Borins and Feldman JJ.A.

Counsel: David G. Price, for the appellant David Finley, for the respondent Janice E. Blackburn, For the Centre for Addiction and Mental Health

Heard & Endorsed: April 13, 2004

On appeal from the disposition of the Honourable H.D. Porter of the Ontario Review Board dated June 2, 2003.

Appeal Book Endorsement

[1] We see no merit to the constitutional argument. In our view, the proportionality issue was dealt with and determined against the appellant in Winko. See in particular IP107ff.

[2] We are also satisfied that the finding of detention in hospital was not unreasonable. There was evidence from Dr. Gojer to support the finding and the Board’s decision was entitled to deference.

[3] However, in light of Tulikorpi and Pinet the Board’s decision cannot stand. The Board had to apply the least onerous and least restrictive test to the level of detention and to the conditions. The Board, however, used the standard of “appropriate” with respect to the conditions, did not specify the level of detention and purported to permit the hospital to move the appellant between medium and minimum and back again.

[4] Accordingly, the appeal is allowed and the case is remitted to the Board for a re-hearing. We would ask that the re-hearing be expedited.