Court of Appeal for Ontario

Date: December 20, 2017 Docket: C63517

Judges: Sharpe, Watt and Roberts JJ.A.

In the Matter of: Burhan Esgin

An Appeal Under Part XX.1 of the Code

Counsel:

• Anita Szigeti, for the appellant, Burhan Esgin
• Andrew Cappell, for the respondent, the Attorney General of Ontario
• Gavin MacKenzie, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health

Heard and released orally: December 20, 2017

On appeal from: The disposition of Ontario Review Board, dated February 24, 2017, with reasons dated March 10, 2017.

Reasons for Decision

[1] The appellant submits that the Ontario Review Board erred by failing to impose what he contends was the least onerous and the least restrictive disposition necessary to protect the public, namely, a conditional discharge.

[2] In our view, the Board reasonably determined that given the admitted risk to public safety posed by the appellant, the least onerous and least restrictive disposition was a detention order with community living privileges at the discretion of the hospital as recommended by the appellant's treatment team.

[3] We were advised by counsel for the Attorney General that the appellant is now living in the community with his mother pursuant to that order.

[4] The Board found that while the appellant has made considerable progress in the past year, he had continued to encounter difficulty in complying with rules. As his treating physician explained, given the appellant's history of non-compliance with prescribed medication and alcohol use when residing in the community, a pattern of failure to comply with rules is a matter of concern.

[5] The appellant submits that his rule violations are a product of his addiction to nicotine. Board considered and rejected that contention. The hospital report includes other rule violations not related to smoking within the relevant reporting period. The Board found that there were "very concerning behaviours that go well beyond simply violating smoking prohibitions".

[6] The Board's conclusion that the appellant's behaviour demonstrated a degree of impulsivity which directly affects the management of the risk he poses was reasonably supported by this record. The Board's disposition allows the appellant to live in the community at the discretion of the hospital and permits the hospital to act should the pattern of non-compliance with medication or alcohol use recur. It was open to the Board to conclude that this disposition was the least onerous and least restrictive in the circumstances.

[7] Accordingly, the appeal is dismissed.

"Robert J. Sharpe J.A."

"David Watt J.A."

"L.B. Roberts J.A."