Court File and Parties

Citation: R. v. Faichney, 2007 ONCA 613 Date: 2007-09-10 Docket: C47617

Court of Appeal for Ontario Before: O’Connor A.C.J.O., MacPherson and Cronk JJ.A.

Between: Her Majesty the Queen (Respondent) and James Faichney (Appellant)

Counsel: James Faichney, in person Anita Szigeti, amicus curiae Megan Stephens, for the respondent Barbara Walker-Renshaw, for the Whitby Mental Health Centre

Heard and endorsed: September 5, 2007

On appeal from the disposition of the Ontario Review Board dated February 9, 2007.

Appeal Book Endorsement

[1] Notwithstanding the very able argument of amicus counsel and the submissions of Mr. Faichney on his own behalf, we conclude that this appeal must be dismissed.

[2] On the first ground of appeal advanced, we accept that there was a breach of the hospital’s statutory duty under s. 672.56(2) of the Criminal Code to provide notice to the Board of an increase in the restrictions on the appellant’s liberty and, therefore, a corresponding breach of the Board’s duty to hold a hearing in respect of same. However, in the circumstances of this case, the issue rapidly became moot because of the Board’s decision dated February 9, 2007 transferring the appellant to maximum security at Oak Ridge.

[3] Nor do we accept the remaining grounds of appeal advanced by amicus counsel. The Board’s decision was based on expert evidence from the appellant’s treating physician. It was his unchallenged evidence that, at the time of the hearing, the appellant was not a suitable candidate for a placement in a medium secure facility anywhere in the province. It is also clear from the Board’s reasons and the record that the Board was alert to the liberty interests of the appellant and the quality of his life, and that its disposition – transferring the appellant to Oak Ridge – was supported by the evidence. We note, as well, the appellant’s own indication to this court that his time in Oak Ridge has been well spent and that he has participated in a variety of programs at that institution.

[4] The appellant’s next annual review should take place in about five months. It appears to us that the appellant has made considerable progress at Oak Ridge. We have every confidence that the Board will examine this fully at his next hearing.

[5] For the reasons given, the appeal is dismissed.