WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 672.501(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

672.501(1) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in subsection 486.4(1), the Review Board shall make an order directing that any information that could identify a victim, or a witness who is under the age of eighteen years, shall not be published in any document or broadcast or transmitted in any way.

(2) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence referred to in section 163.1, a Review Board shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of section 163.1, shall not be published in any document or broadcast or transmitted in any way.

(3) Where a Review Board holds a hearing referred to in section 672.5 in respect of an accused who has been declared not criminally responsible on account of mental disorder or unfit to stand trial for an offence other than the offences referred to in subsection (1) or (2), on application of the prosecutor, a victim or a witness, the Review Board may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the Review Board is satisfied that the order is necessary for the proper administration of justice.

Subsections 672.501(11) and (12) provide:

(11) Every person who fails to comply with an order made under any of subsections (1) to (3) is guilty of an offence punishable on summary conviction.

(12) For greater certainty, an order referred to in subsection (11) also prohibits, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim or witness whose identity is protected by the order.

Court Information

Court of Appeal for Ontario

Date: 2018-07-11

Docket: C64558

Panel: Doherty, MacPherson and Rouleau JJ.A.

In the Matter of: Dakota Hart, A.K.A. Kaellum Wilfred Eridani

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Suzan E. Fraser and Cate Martell, for the appellant
• Catherine Weiler, for the respondent Her Majesty the Queen
• Janice Blackburn, for the respondent the Person in Charge of St. Joseph's Healthcare Hamilton

Heard and Released Orally: July 5, 2018

On Appeal Against: The disposition of the Ontario Review Board dated October 2, 2017, with Reasons for Disposition issued October 24, 2017 and received by the appellant on October 24, 2017.

Reasons for Decision

Issues on Appeal

[1] The appellant raises three issues:

(1) Did the Board err in finding that the appellant posed a significant threat to the safety of the public?

[2] The Board's finding that the appellant posed a significant threat is supported by the evidence before the Board. The hospital's risk assessment and the treating psychiatrist's opinion provided evidence that the appellant, at this time, posed a significant risk to relapse into a psychotic state. That risk was exacerbated by the appellant's refusal to take medication that would mitigate the effect of the relapse. Finally, the appellant's relatively recent history of serious violence directed at children while in a psychotic state provided further evidence of the risk posed to the public by the appellant.

[3] The appellant's unwillingness to use medication to manage his risk and the hospital's concerns about the appellant's potential use of alcohol and/or marijuana, were both relevant to the determination of the risk posed by the appellant. The weight to be assigned to those factors, along with the other factors, was for the Board.

(2) Did the Board err in failing to consider a conditional discharge?

[4] The Board accepted the treating psychiatrist's evidence that the appellant was not, at this time, a candidate for a conditional discharge. The psychiatrist gave reasons for advancing that opinion, all of which are supported in the record before the Board. In the face of that evidence, a conditional discharge was not a viable option at this time. The Board explained its reasons for denying the conditional discharge at para. 73.

(3) Should condition 4(f) of the Board's disposition be amended?

[5] The parties agree that the Board's disposition fails to track the intention of the Board insofar as the language of condition 4(f) of the disposition is concerned. That condition should be amended to read as follows:

Refrain from attending at any public park or public swimming area where persons under the age of 14 are present or could reasonably be expected to be present; refrain from attending at any daycare centre, school ground, playground or community centre at times when persons under the age of 14 are present or could reasonably be expected to be present, except when accompanied by hospital staff, staff from any residential accommodation approved by the hospital, or any approved staff.

Decision

[6] The appeal is allowed to the extent of the variation in condition 4(f). Otherwise, the disposition of the Board dated October 2, 2017 stands.

"Doherty J.A."

"J.C. MacPherson J.A."

"Paul Rouleau J.A."