Her Majesty the Queen and Ontario Shores Centre for Mental Health Sciences v. Farzad Nadery

Citation: Nadery (Re), 2011 ONCA 573

Date: 2011-09-02

Docket: C52895

Court of Appeal for Ontario

Before: Sharpe, Armstrong and Karakatsanis JJ.A.

Between

Her Majesty the Queen and Ontario Shores Centre for Mental Health Sciences Respondents

and

Farzad Nadery Appellant

Counsel:

Farzad Nadery, in person Anita Szigeti, Amicus Curiae

Greg Skerkowski, for the Crown Barbara Walker-Renshaw, for the Ontario Shores Centre for Mental Health Sciences

Heard & released orally: August 23, 2011

On appeal from the disposition of the Ontario Review Board dated August 26, 2010.

Endorsement

[1] The Ontario Review Board’s November 27, 2009 disposition ordered that the appellant be detained with a condition allowing him to live in the community in accommodation approved by the hospital. On July 20, 2010 this court allowed an appeal from that disposition substituting an order directing that the appellant be conditionally released and remitting the matter to the Board to determine the appropriate conditions. When the Board reconvened on August 16, 2010, all parties, including the Crown, took the position that the only issue for the Board was to determine the conditions of the conditional discharge ordered by this court. The Board disagreed and stated that its mandate was not so limited and that it was entitled to engage in a broader inquiry and to consider whether there were any circumstances that required a change to the conditional discharge that this court had just ordered. The Board further held that as it was prepared to consider that wider issue, the appellant was not entitled to a further annual review until July 2011.

[2] We agree with the submission of all counsel, including the Crown, that the Board erred in its interpretation of this court’s July 20, 2010 order. Section 672.78(1) of the Criminal Code gives this court the power to refer a matter back to the review board for a rehearing “in whole or in part, in accordance with any directions that the Court of Appeal considers appropriate”. The July 20, 2010 order was made pursuant to that power. The Board erred by, in effect, reviewing that order by purporting to engage in a full scale review of the appellant's situation. The Board’s action was not only contrary to the order made by this court; it also denied procedural fairness to the appellant who was not on notice that such a hearing would be held. Moreover the Board’s insistence that the appellant’s annual review be postponed to July 2011 denied the appellant the right to a mandatory annual review pursuant to s. 672.81 of the Criminal Code.

[3] The appellant asks us to grant him an absolute discharge. We are not satisfied that the record before us is sufficient to grant that order. There is no updated hospital report and no current evidence from the appellant's treatment team as to his present situation. In the circumstances it is not practicable for this court to conduct the necessary inquiry. Moreover, as this is an appeal from the Board’s August 16, 2010 disposition which should have been limited to the appropriate conditions, this appeal does not provide an appropriate vehicle to determine the issue of discharge. The appropriate order is to remit the matter to the Ontario Review Board for an immediate consideration of the appellant’s disposition.

[4] Accordingly the appeal is allowed and the matter is referred back to a differently constituted panel of the Ontario Review Board to conduct a full hearing reviewing the appellant’s disposition forthwith.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“Karakatsanis J.A.”