COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Elksmith, 2007 ONCA 761

DATE: 20071107

DOCKET: C46592

MOLDAVER, SHARPE and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

EDDIE ANDREW ELKSMITH

Appellant

Suzan E. Fraser for the appellant

Megan Stephens for the respondent

Julie Zamprogna Balles, person in charge RMHC, St. Thomas

Heard: November 5, 2007

On appeal from the Disposition of the Ontario Review Board dated December 14, 2006 (Amended January 10, 2007).

APPEAL BOOK ENDORSEMENT

[1] The appellant has raised, for the first time before this court, the jurisdiction of the Board to order random sampling in the form of breath and urine samples as a condition of the appellant being allowed to reside in the community. We agree with the Crown that we should decline to hear this issue.

[2] The impugned condition has been in effect since May 2002 and the only reference to it at the hearing was by the appellant’s counsel, who suggested that sampling could be used to ensure compliance with her client’s request that he be allowed one drink per day.

[3] In these circumstances, the record is at best unclear whether the appellant consented to the sampling condition.

[4] It is also unclear whether the appellant’s treatment team would have recommended that he be permitted to reside in the community absent that condition.

[5] In declining to take this point up, it is important, as well, for this court to have a proper record. To that end, if this issue is raised at the next Board hearing, subject to the Board’s discretion, it would be helpful, if the parties or any of them wish to do so, that they be given an opportunity to lead relevant evidence on the subject.

[6] For all of these reasons, we decline to entertain the jurisdictional issue on this appeal.

[7] We see no merit on the other issues raised by the appellant.

[8] Accordingly, the appeal is dismissed.