COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re), 2013 ONCA 142

DATE: 20130308

DOCKET: C55859

Rosenberg, Juriansz and Epstein JJ.A.

IN THE MATTER OF: HOWARD KELLY

AN APPEAL UNDER PART XX.1 OF THE CODE

Howard Kelly, in person

Anita Szigeti, Amicus Curiae

Ewa Krajewska, for Ontario Shores Centre for Mental Health Sciences

Philippe Cowle, for Her Majesty the Queen

Heard: March 4, 2013

On appeal against the disposition of the Ontario Review Board dated July 18, 2012.

ENDORSEMENT

[1] Mr. Kelly appeals the disposition of the Ontario Review Board dated July 18, 2012, ordering that he be detained on a General Forensic Unit with privileges of up to 10 hours to enter the community surrounding the hospital, indirectly supervised. At the hearing, Mr. Kelly and the Crown both supported the Hospital’s recommendation, which was accepted by the Board and reflected in the disposition rendered.

[2] Mr. Kelly, representing himself with the assistance of amicus curiae, appeals the decision essentially on the ground that it was not the least onerous or least restrictive disposition that could have been rendered. Mr. Kelly seeks a Conditional Discharge. The amicus curiae’s position is that the Board should have included a term allowing the person in charge the discretion to permit Mr. Kelly to live in the community. She submits that, given the waiting time for community living spaces, such discretion would facilitate his return to the community more promptly.

[3] Mr. Kelly has been suffering from schizophrenia for over 30 years. He has also been diagnosed as having substance abuse disorders, a narcissistic personality disorder, and an antisocial personality disorder.

[4] Mr. Kelly’s medical difficulties have manifested themselves in a number of ways including through criminal behaviour such as threats and assaults. He came under the jurisdiction of the Ontario Review Board in July of 2008, after being found not criminally responsible of threatening to kill his sister and breaching his probation by sending a letter to one of the former victims of his criminal activity.

[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 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. While not specifically challenged on appeal, we are satisfied that the Board’s finding that Mr. Kelly continued to represent a significant threat to the safety of the public was supported by that evidence.

[6] We are also satisfied that the Board acted within its discretion in deciding that Mr. Kelly’s continued detention with terms and conditions that allow limited community privileges rather than a conditional discharge or permitting community living was the appropriate decision. There was evidence before the Board that supported its disposition.

[7] The appeal is therefore dismissed.

[8] We make one further comment. We share the concern that has been previously expressed by this court about the need for real progress to be made towards integrating Mr. Kelly into the community. The record before us shows that there have been set-backs. However, there are also recent signs of progress. And it is this progress that the Board was aware of when, in crafting the disposition order under appeal, it included terms that give Mr. Kelly an opportunity to start his reintegration into the community.

“M. Rosenberg J.A.”

“R. Juriansz J.A.”

“Gloria Epstein J.A.”