COURT OF APPEAL FOR ONTARIO

CITATION: Cubias (Re), 2013 ONCA 409

DATE: 20130618

DOCKET: C56116

Hoy A.C.J.O., Blair and Lauwers JJ.A.

IN THE MATTER OF: Christian Cubias

AN APPEAL UNDER PART XX.1 OF THE CODE

Bruce F. Simpson, for the appellant

Karen Shai, for the Attorney General

Janice E. Blackburn, for Waypoint Centre for Mental Health Care

Michelle O'Bonsawin, for Brockville Mental Health Centre

Heard and released orally: June 7, 2013

On appeal against the disposition of the Ontario Review Board dated, August 28, 2012.

ENDORSEMENT

[1] The appellant appeals the August 28, 2012 disposition of the Ontario Review Board ordering that he be detained at the Oakridge Division of Waypoint Centre for Mental Health. It is conceded that the appellant remains a significant threat to the safety of the public. The appellant argues that the Board erred in not concluding that his risk could be managed on a conditional discharge.

[2] The Board provided reasons for concluding that the appellant’s risk could not be managed on a conditional discharge, all of which were supported by the evidence. The appellant has no support in the community, he has a history of elopements and he has failed to develop any of the skills required to follow through on substance abstinence. As the Board noted, a resumption of alcohol consumption would increase his risk of acting violently. The Board’s conclusion was reasonable and supported by the evidence. We see no basis to interfere.

[3] On appeal the appellant also raises a Charter argument not advanced before the Board. In particular, he argues that his detention amounts to a probable period of indefinite incarceration and therefore to cruel and unusual punishment. We are not satisfied that the appellant faces a probable period of indefinite incarceration.

[4] The thrust of the evidence before the Board was that a transfer to Waypoint was not a dead-end. Waypoint offers the substance abuse programming that the appellant requires. If he engages in that programming and shows improvement, he could earn privileges and eventually be transferred to a facility that engages in community reintegration. In these circumstances, we do not need to further address his Charter argument.

[5] This appeal is accordingly dismissed.

“Alexandra Hoy A.C.J.O.”

“R.A. Blair J.A.”

“P. Lauwers J.A.”