CITATION: Hofsepian v. Whitby Mental Health Centre, 2008 ONCA 242
DATE: 20080404
DOCKET: C47646
COURT OF APPEAL FOR ONTARIO
DOHERTY, MOLDAVER and CRONK JJ.A.
BETWEEN:
LEON JOSEPH HOFSEPIAN
Appellant
and
WHITBY MENTAL HEALTH CENTRE and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF THE ATTORNEY GENERAL)
Respondents
Anthony J. Balka, for the appellant
Nadia E. Thomas, for the respondent Her Majesty the Queen in Right of Ontario (Ministry of the Attorney General)
Heard and released orally: April 2, 2008
On appeal from the disposition of the Ontario Review Board dated July 6, 2007.
ENDORSEMENT
[1] In the face of submissions from the Whitby Mental Health Centre (the hospital) and the Attorney General that the appellant’s detention in a minimum security setting should be continued, the Board by a majority of four to one ordered that the appellant should be detained in a medium security setting at the hospital.
[2] We see no legal error in the challenged disposition of the Board. In particular, we do not accept that the Board failed to consider the requisite statutory factors. To the contrary, the reasons of the majority indicate that the Board addressed the evidence before it concerning the need to protect the public, the appellant’s mental condition, the goal of reintegrating the appellant into society, and the appellant’s other needs. Based on that evidence, which included evidence of changes in the appellant’s condition and conduct since his 2006 annual review hearing, the Board made a disposition that in its view was the least onerous and least restrictive to the appellant in all the circumstances. It made no error in so doing.
[3] Nor are we persuaded that the challenged disposition is unreasonable.
[4] The evidence before the Board established that after the appellant’s 2006 review hearing: (i) his mental condition worsened; (ii) he eloped from the hospital; (iii) during that elopement, he exhibited violent ideation, namely, he believed that he was being chased by men with knives; and (iv) his receipt of a new medication, Clozapine, was relatively recent.
[5] The Board found that the appellant remained a significant threat to the safety of the public. This finding is not challenged on appeal. Nor does the appellant contest the Board’s findings that he is at high risk for future elopements, that he continues to be actively psychotic and to experience hallucinations and that he remains at high risk for violent recidivism.
[6] The evidence of improvement in the appellant’s condition after his May 2007 elopement is encouraging and no doubt will be taken into account by the Board at the appellant’s next annual review hearing. However, on the full record before the Board at the appellant’s June 2007 hearing, the cautious approach of the majority was clearly reasonable and justified.
[7] We understand that the appellant’s next annual review hearing is scheduled for the end of June 2008. We were informed that the hospital is likely at that time to support the transfer of the appellant back to a minimum security setting. If, in fact, that is the hospital’s position, any steps available to expedite the appellant’s 2008 annual review hearing are to be encouraged.
[8] The appeal is dismissed.
“Doherty J.A.”
“M.J. Moldaver J.A.”
“E.A. Cronk J.A.”