DATE: 200509012

DOCKET: C43634

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ED ELKSMITH (Appellant)

BEFORE:

WEILER, BLAIR and LAFORME J.J.A.

COUNSEL:

Ed Elksmith in person

Michael Davies, Amicus Curiae

Julie Zamprogna Balles, for St. Joseph’s Health Care London and Regional Mental Health Care St. Thomas

Tracy Stapleton, for the Crown

HEARD:

September 8, 2005

On appeal from the disposition of the Ontario Review Board, dated May 13, 2005.

E N D O R S E M E N T

[1] Mr. Elksmith appeals the disposition of the Ontario Review Board, dated May 13, 2005, ordering that his detention at the medium secure unit of Regional Mental Health Care St. Thomas, St. Joseph’s Health Care London, continue. The Order also provided that Mr. Elksmith could be transferred to a minimum secure unit at those facilities if the person in charge concluded that his condition had clinically improved to the extent of justifying such a transfer. It also directed the person in charge to create a program for Mr. Elksmith’s custody and rehabilitation that would permit him, amongst other things:

a) to attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes;

b) to enjoy hospital and grounds privileges, indirectly supervised;

c) to enter Elgin and Middlesex Counties, indirectly supervised; and

d) to enter Southern Ontario for socialization, accompanied and supervised by staff or a person approved by the person in charge.

[2] Mr. Elksmith’s primary complaints, as expressed to us in his own handwritten submissions and personally at the hearing, are:

a) that he should not have been “locked up” for over six years for what he described as a “piddly” offence (the specific index offence was a charge of public mischief arising out of an altercation with a police officer, in which the window of a car was smashed), and that he was not really responsible for any of the other criminal offences for which he had been previously convicted;

b) that there is nothing wrong with him and therefore he should not be required to take the drugs to which he is subjected; and,

c) that he is not a risk to be violent and has not harmed anyone (at least for over 20 years).

[3] In connection with the first point, Mr. Elksmith relies on s. 672.64 of the Criminal Code, which would provide for a cap on the length of time a person may be detained after a finding of not criminally responsible, depending upon the nature of the offence, and which would limit his detention to two years for the type of “minor” offence involved here. What appears as s. 672.64 in the annotated versions of the Code, however, is simply a proposed amendment that has never been declared in force. It therefore cannot assist Mr. Elksmith. The “not criminally responsible” regime in the Code, and the system that has been established for persons so found, is not a system of punishment and its dispositions are not to be regarded as such; it is a system of treatment. Consequently, the issue before us is not the period of time during which Mr. Elksmith has been detained, but rather whether the Board acted in accordance with the law and the applicable principles in making its determination. In our view, it did.

[4] There was ample support in the record for the Board’s conclusion that Mr. Elksmith continues to suffer from a major mental illness and that he continues to pose a significant threat of harm to the public if he were to be discharged. While we can understand, and empathize with, his desire “to get [his] life back”, the record and Mr. Elksmith’s demeanour clearly support the Board’s findings in that regard.

[5] Mr. Davies, the amicus curiae, raises one point of law on Mr. Elksmith’s behalf, however: the sufficiency of the reasons. He submits the Board’s reasons do not demonstrate that the members adequately considered the second criterion they were bound to determine, namely, the issue of what is the least onerous and least intrusive disposition appropriate in the circumstances.

[6] We agree that the Board did not say specifically that it had directed its mind to this test in crafting its disposition, but we are satisfied – reading the reasons as a whole – that it did so. The Board noted, with regret, Mr. Elksmith’s refusal to accept the reality of his mental illness and expressed the hope that he would learn to accept that reality and cooperate with the hospital caregivers in his treatment. It concluded, nonetheless, that he remained mentally ill and continued to pose a danger to the public, and found that his family members had reason to be in fear of him. For those reasons the Board was satisfied that the previous terms and conditions of his detention should remain operative, but with some modifications favouring Mr. Elksmith. First, the Board stipulated that the hospital could transfer him to a minimum secure facility, if his condition improved to the point where that was justified. Secondly, it granted Mr. Elksmith the privilege of entering Elgin and Middlesex counties for socialization indirectly supervised. Thirdly, the Board’s order permits Mr. Elksmith to travel in Southern Ontario when accompanied and supervised by an approved person. This latter provision meets one complaint Mr. Elksmith raised specifically with us, that is, his perceived inability to visit with persons in Burlington and Toronto.

[7] The Board is clearly obliged under s. 672.54 of the Code to make a disposition that is the least onerous and least restrictive to the accused. A Board’s reasons for disposition should demonstrate that it has applied its mind to that requirement and should enable the person who is the subject of the proceeding, and others considering the decision, to understand why the disposition is the least onerous and least restrictive in the circumstances. The more clearly this can be done, the better. Here, while it would have been preferable if the Board had been more specific in articulating its reasons on the least onerous/least restrictive issue, we are satisfied that its reasons, read as a whole, reveal that it gave adequate consideration to all relevant factors.

[8] Accordingly, the appeal is dismissed.

“K.M. Weiler J.A.”

“R.A. Blair J.A.

“H.S. LaForme J.A.”