COURT OF APPEAL FOR ONTARIO
CITATION: Breitwieser (Re), 2012 ONCA 649
DATE: 20120928
DOCKET: C54938
Sharpe, Simmons and Epstein JJ.A.
IN THE MATTER OF: Alf Breitwieser
J. Di Luca, for the appellant
Mabel Lai and J. Zamprogna, for the respondent
Heard: September 25, 2012
On appeal against the disposition of the Ontario Review Board dated, January 3, 2012.
APPEAL BOOK ENDORSEMENT
[1] In our view, the Board’s conclusion that the appellant continues to pose a significant risk to public safety was reasonable and well supported by the evidence.
[2] However, we conclude that the Board’s rejection of the recommendation of the treatment team that the appellant be detained subject to a condition that he be permitted to live in Elgin County accommodation approved by hospital was not supported by the evidence, was inconsistent with Winko and therefore, must be set aside as unreasonable.
[3] The Board was plainly concerned about the capacity of the treatment team to monitor the appellant’s compliance with medication. Implicit in the Board’s rejection of community living is the proposition that only something approaching perpetual daily monitoring could satisfy that concern.
[4] This is not supported by the evidence. The majority of the medication the appellant receives is by way of injection at the hospital every two weeks. It would be immediately apparent to the treatment team if the appellant refused the injection medication. Moreover, it takes two weeks to decompensate if he does not receive the medication.
[5] In our view, the Board also misapprehended the evidence as to the capacity of the treatment team to monitor the appellant tin the community. Dr. Roopchand testified that daily monitoring could be maintained for a certain period and that an appropriate level of supervision could be established thereafter. In the end, under the treatment team’s recommendation, the appellant would remain subject to a detention order and therefore subject to immediate return to hospital should problems arise.
[6] For these reasons, the appeal is allowed, the Board’s order is set aside and replaced by an order containing the recommendation made by the hospital.