CITATION: R. v. Jubinville, 2008 ONCA 629
DATE: 20080915
DOCKET: C48449
COURT OF APPEAL FOR ONTARIO
Armstrong, Lang and Epstein JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Jean-Benoit Jubinville
Appellant
Jean-Benoit Jubinville, in person
Michael Davies as amicus curiae for the appellant
Nadia Thomas for the respondent, Her Majesty the Queen
Jean Buie for the respondent, Centre for Addiction and Mental Health (Queen Street Division, Toronto)
Heard and released orally: September 10, 2008
On appeal from the disposition of the Ontario Review Board dated January 7, 2008.
ENDORSEMENT
[1] In our view, whenever feasible, it is preferable for Review Boards to adhere to the language of the test mandated in s. 672.54 of the Criminal Code, which requires the Board to make the "least onerous and least restrictive" disposition. In this case, reading the reasons as a whole, the Review Board, which has significant expertise in relation to these issues, was both well aware of and specifically referred to the correct test.
[2] We read the Board's later reference to whether community living was "likely/foreseeable" as no more than an attempt to accommodate the different arguments of the patient, the hospital and the Crown and to say that, whatever terminology was employed, the community living condition was not available on the application of the least onerous standard.
[3] This interpretation is supported by the Board's detailed reasons on the issue, which included the changes in the appellant's circumstances that occurred after the hospital initially recommended the inclusion of the community living condition. While the Board considered the patient's psychiatric history and his significant progress, it also considered that his personality disorder was still evident and resulted in harm to others, his substance abuse was continuing, and the therapist who had so significantly assisted the patient's progress was on a prolonged absence. In our view, the evidence amply supported the Board's conclusion that the inclusion of a community placement condition did not meet the mandated test.
[4] Finally, it is unnecessary to consider the degree to which a Board is required to look forward to future years in making its disposition. This case simply did not raise a situation where advanced conditions were necessary either for planning processes or in recognition of waiting lists.
[5] We conclude by noting Mr. Jubinville's overall progress over the years as well as the availability of the early hearing provisions provided by the Criminal Code.
[6] Accordingly, we would dismiss the appeal.
"Robert P. Armstrong J.A."
"S.E. Lang J.A."
"G. Epstein J.A."