Court File and Parties

CITATION: R. v. Kellman, 2008 ONCA 14

DATE: 20080111

DOCKET: C47661

COURT OF APPEAL FOR ONTARIO

BEFORE: WEILER, SIMMONS AND CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JAMES KELLMAN

Appellant

COUNSEL:

Maureen Addie for the appellant

Peter Scrutton for the respondent

Heard and released orally: January 8, 2008

On appeal from the disposition of the Ontario Review Board dated March 15, 2007.

ENDORSEMENT

[1] The appellant appeals from a disposition of the Ontario Review Board holding that he continues to pose a significant threat to the safety of the public and ordering that he be detained on a medium secure unit of the Whitby Mental Health Centre.

[2] The appellant does not contest that he continues to pose a significant threat to the safety of the public. He raises two issues on appeal.

[3] First, he submits that, in the face of a recommendation by his treating psychiatrist, the Board erred in failing to order that he have a further review within six months of the date of the disposition under appeal.

[4] We reject this submission. On our review of the treating psychiatrist's evidence, he did not recommend definitively that a further review be held within six months. On the contrary, he testified that the treatment team had advised the appellant that if he continued to progress the team would be looking at an early review "perhaps in six months to consider [a] minimum [security disposition]." In addition, the treating psychiatrist testified, "... hopefully within six months we can look at having a Board and requesting transfer to minimum. We're not asking at the moment because it depends on his participation which has to increase somewhat."

[5] Assuming that the Board has the authority and duty to order an early review hearing in some circumstances, in our view, on the facts of this case it did not err in failing to do so. We would not give effect to this ground of appeal.

[6] Second, the appellant submits that the Board erred in ordering that he continue to be detained on a medium secure unit in the face of evidence that he had made progress since his last disposition. We do not accept this submission.

[7] In making the disposition that it did, the Board expressly noted the appellant's position that he had made considerable progress since the date of his last disposition, but found that he was not yet ready to be moved to a minimum secure unit. This finding was consistent with the evidence presented at the hearing and in particular, the evidence of ongoing concerns about elopement and the potential for the appellant to commit criminal offences if he eloped. We see no basis for holding that the Board erred in law or that its disposition was unreasonable.

[8] The appeal is therefore dismissed.

"K.M. Weiler J.A."

"Janet Simmons J.A."

"E.A. Cronk J.A."