Court File and Parties

CITATION: Elster (Re), 2011 ONCA 701

DATE: 20111110

DOCKET: C53326

COURT OF APPEAL FOR ONTARIO

Doherty, Goudge and Epstein JJ.A.

BETWEEN

Her Majesty the Queen and Centre for Addiction and Mental Health

Respondents

and

Lior Elster

Appellant

Counsel:

Lior Elster, appearing in person Anita Szigeti, as amicus curiae

Matthew Asma, for the respondent, Attorney General of Ontario Jean Buie, for Centre for Addiction and Mental Health

Heard: October 27 and 31, 2011

On appeal from the disposition of the Ontario Review Board (“ORB”) dated February 22, 2011.

ENDORSEMENT

[1] We conclude that the Board did not act unreasonably in imposing a detention order. We are, however, satisfied that para. 2(g) of that order cannot stand. That paragraph allows Mr. Elster to live in the community, but requires that he do so “in supervised accommodation approved by the person in charge”.

[2] There were no submissions made to the Board as to the meaning of, or need for “supervised accommodation” in the circumstances of this case. The first reference to “supervised accommodation” appeared in the Board’s reasons delivered in May 2011.

[3] On appeal, counsel advised the court that the phrase “supervised accommodation” has no single meaning in the context of Board orders. The meaning varies from institution to institution and from time to time at the same institution. “Supervised accommodation” can vary from 24-hour a day supervision in an approved location to supervision for a number of hours a day at a group home. Whatever the meaning of the phrase, there are significant resource limitations that restrict the availability of “supervised accommodation”.

[4] The Board should not have imposed the term in subparagraph (g) without allowing the parties an opportunity to make submissions as to the need for, meaning of, and availability of “supervised accommodation” in Mr. Elster’s particular circumstances. In effect, the Board imposed a further limitation of Mr. Elster’s liberty without any submissions as to the need for that limitation and without a clear understanding of the effect of that limitation on Mr. Elster.

[5] The ORB was concerned about Mr. Elster’s unexplained relapse less than a year earlier. That relapse and the nature of the index offence justified the detention order. The Board was also concerned that Mr. Elster should not live with his father at the present time. That concern was also justified on the evidence and could have been addressed by a specific term in the order directing that Mr. Elster not be allowed to reside with his father.

[6] We were advised in oral argument by counsel for the Centre for Addiction and Mental Health (“CAMH”) that it interprets the order requiring “supervised accommodation” as referring to accommodation in which Mr. Elster resides in a place where he receives a minimum of four hours a day direct supervision. According to counsel for CAMH, that kind of facility would in all likelihood not be available for Mr. Elster before his next review in February 2012.

[7] Counsel for CAMH takes the position that there was no evidence to justify limiting the potential approved accommodation to “supervised accommodation” as that phrase is used by CAMH. Ms. Szigeti joins in that submission. The Crown argues that there was some evidence to support the Board’s order.

[8] The Board’s failure to entertain submissions from the parties before imposing a “supervised accommodation” limitation on Mr. Elster’s liberty, combined with the uncertainty as to the meaning of that phrase, compels the conclusion that the Board erred in law in unilaterally imposing that term. We also agree with the submission that if the term “supervised accommodation” is given the least intrusive meaning used by CAMH, that is four hours a day of direct supervision, there was no evidence to justify that limitation on Mr. Elster’s liberty.

[9] We would allow the appeal and vary the order to provide that Mr. Elster could not be permitted to live in the community with his father, but could otherwise be permitted to live in the community in accommodation to be approved by the person in charge of CAMH.

“Doherty J.A.”

“S.T. Goudge J.A.”

“G.J. Epstein J.A.”