DATE: 20040723

DOCKET: C41408

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMES HAMILTON ALLAN (Appellant)

BEFORE:

WEILER, SHARPE AND SIMMONS JJ.A.

COUNSEL:

Anita Szigeti

Amicus Curiae

Lorna Bolton

for the Crown respondent

James Thompson

Providence Continuing Care Centre

HEARD &:

ENDORSED

July 16, 2004

On appeal from the disposition of the Ontario Review Board dated August 15, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The Board’s decision that the appellant continued to pose a significant risk to the public based on his harassing behaviour was not unreasonable at the time it was made. There was ample medical and clinical evidence to support that determination. Further, in our view it was not unreasonable for the Board to impose the conditions that it did in making its order for detention. Dr. Hillen testified that he did not believe Mr. Allan would be suitable for indirectly supervised community access within the ensuing year. At its highest, Dr. Millson’s evidence was that he was hopeful that would occur but he did not specify a time frame. Finally, the Board’s decision not to order a transfer or further explore a transfer to the Whitby facility was not unreasonable. Counsel for Mr. Allan did not file the letter from the Whitby facility. The Whitby facility is a double locked facility whereas the current facility is not. There was no definitive evidence before the Board that the proposed family relationship would prove to be to Mr. Allan’s advantage. These issues were fully aired before the Board. Particularly in light of the evidence concerning Mr. Allan’s then existing condition we do not agree with the submission that the Board was obliged to adjourn the proceedings and explore alternative options.

[2] We recognize that Mr. Allan’s condition may well have changed since the date of this disposition. This is undoubtedly a matter the Board will consider at the next review hearing which is imminent. We would therefore dismiss this appeal.

Janet Simmons J.A.

I agree Robert J. Sharpe J.A.

(Dissent over)

[3] I agree that the Board’s decision that Mr. Allan posed a significant risk to the public in terms of harassing behaviour was not unreasonable at the time it was made. In relation to the proposed transfer to Whitby, the Board noted that the administrator of that facility did not support the transfer. The Board was not bound by the administrator’s refusal. It had an obligation to adjourn the proceedings and to request evidence as to whether with the involvement of Mr. Allan’s family, Whitby might in fact be a less restrictive placement.

[4] In addition the Board assumed that if Mr. Allan was not transferred to Whitby he should remain in his current placement. The Board had an obligation to consider whether, in light of Mr. Allan’s deteriorating physical condition, a less restrictive setting could meet his needs within the next year and did not do so. I would therefore have allowed the appeal and remitted the matter back to the Board to reconsider its disposition.

K. M. Weiler J.A.