Court File and Parties

Citation: Ontario (Review Board) v. Kelly, 2011 ONCA 183 Date: 2011-03-08 Docket: C52427

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

Between: Her Majesty the Queen and Ontario Shores Centre for Mental Health Sciences (Respondents) and Howard Kelly (Appellant)

Counsel: Howard Kelly, appearing in person Anita Szigeti, amicus curiae Leanne Salel, for the respondent, Her Majesty the Queen Michele Warner, for the respondent, Ontario Shores Centre for Mental Health Sciences

Heard and released orally: March 4, 2011 On appeal from: The disposition of the Ontario Review Board, dated July 6, 2010.

Endorsement

[1] The Attorney General and the respondent, hospital, apply to admit fresh evidence in the form of three affidavits relating to events that allegedly occurred in the two weeks before the hearing of this appeal. Obviously, these events were not dealt with by the Ontario Review Board in the decision that is under appeal.

[2] Mr. Kelly requested the opportunity to cross-examine the affiants. He denies some or all of the allegations contained in the affidavits. He is, of course, entitled to cross-examine.

[3] It is likely, in the circumstances of this case, that the cross-examinations could not be completed for two or three months. By the time this appeal could be heard, the next annual review will have taken place or at least will be imminent.

[4] In these circumstances, we are of the view that it is better to proceed with this appeal on the basis of the record that was before the Ontario Review Board and on which the Board based its decision. If the appeal on the record cannot succeed, there is no need to consider the fresh evidence.

[5] On the merits of the appeal, we have heard from the amicus curiae and Mr. Kelly. We have also had the benefit of the extensive and thorough factum prepared by the amicus. In our view, the decision of the Board is supported by the evidence that the Board referred to in its reasons. Specifically, we are satisfied that the Board’s finding that Mr. Kelly continued to represent a significant threat to the safety of the public and that the risk that he presented went beyond a nuisance or a minor threat was supported by that evidence.

[6] Further, we are satisfied that the Board acted within its discretion in deciding that Mr. Kelly’s continued detention with terms and conditions that allow community privileges rather than a conditional discharge was the appropriate decision. Again, we are satisfied that there was evidence before the Board upon which it could exercise that discretion and which supported its conclusion.

[7] In the result, we see no error in the reasons of the Board and the appeal is, therefore, dismissed.

[8] We observe that the matters referred to in the fresh evidence and in any evidence that Mr. Kelly may wish to call relating to events after the July 2010 disposition may be dealt with at the next annual review.

“O’Connor A.C.J.O.” “Doherty J.A.” “R.A. Blair J.A.”