COURT OF APPEAL FOR ONTARIO

CITATION: Kelly (Re) 2015 ONCA 95

DATE: 20150210

DOCKET: C58732

Watt, Pepall and Huscroft JJ.A.

IN THE MATTER OF: Howard Kelly

AN APPEAL UNDER PART XX.1 OF THE CODE

Counsel:

Howard Kelly, acting in person

Anita Szigeti, for the appellant

Philippe G. Cowle, for the Attorney General of Ontario

Barbara Walker-Renshaw, for Ontario Shores Centre for Mental Health Sciences

Heard and released orally: January 27, 2015

On appeal against the disposition of the Ontario Review Board dated, April 7, 2014.

ENDORSEMENT

[1] Howard Kelly appeals from a disposition made by the Ontario Review Board on April 7, 2014, with reasons released on May 5, 2014.

[2] The disposition under appeal was made at the conclusion of a hearing that combined an annual review under s. 672.81(1) and a review of a hospital decision to significantly increase restrictions on Mr. Kelly’s liberty after his return from his then most recent elopement from the institution.

[3] Mr. Kelly was found not criminally responsible on account of mental disorder on charges of uttering threats of death or bodily harm and of failure to comply with a probation order on July 9, 2008. He has been under the supervision of the Ontario Review Board since that time, a period of about six and one-half years.

[4] At the Board hearing on April 3, 2014, Mr. Kelly was represented by counsel. He did not seek an absolute discharge, the disposition he now seeks on appeal from the disposition made by the Board. His then counsel (not Ms. Szigeti) did not contest the issue of significant risk. There was no suggestion that counsel was under any misapprehension about the substance of the significant threat standard or the capacity of the evidence before the Board to meet that standard. No suggestion is advanced of ineffective assistance of counsel.

[5] In this court, Ms. Szigeti contends that the Board erred in giving effect to the position of counsel without discharging its inquisitorial function and making an independent determination that the significant threat threshold had indeed been met. Had the Board fulfilled its mandate, Ms. Szigeti says, it could not have been satisfied that Mr. Kelly was a significant threat to the safety of the public. There was no evidence, she urges, that Mr. Kelly constituted a real risk of physical or psychological harm to members of the public from conduct that is criminal in nature.

[6] The Board was entitled to rely and act on counsel’s acknowledgement that the significant threat standard had been met. It was an acknowledgment by counsel that coincided with a robust history of such findings during Mr. Kelly’s tenure under the supervision of the Review Board. Moreover, the Board did not consider the prior findings to be res judicata. It turned its mind to the issue of significant threat and gave brief reasons to explain why it considered the standard to have been met. The Board also had before it the report of the hospital, which included the results of several psychological tests. These tests, albeit actuarial assessments for the most part, point to a significant prospect of recidivism of a nature that falls within the boundaries of the significant threat threshold.

[7] Despite the brevity of the Board’s consideration of the issue of significant threat, we are satisfied, nonetheless, that it gave that issue adequate consideration in the circumstances of this case. We do not consider that finding to be unreasonable.

[8] The appeal is dismissed.

“David Watt J.A.”

“S.E. Pepall J.A.”

“Huscroft J.A.”