Court Information

Date: 2018-11-08 Docket: C65167 Judges: MacPherson, Hourigan and Miller JJ.A.

In the Matter of: Joshua Cardinal

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• William Murray, for the appellant
• Jill Cameron, for the respondent
• Marie-Pierre Pilon, for the Person in Charge of the Royal Ottawa Health Care Group

Heard: November 2, 2018

On appeal from: The disposition of the Ontario Review Board, dated February 21, 2018

Reasons for Decision

[1] The appellant appeals the disposition of the Ontario Review Board dated February 21, 2018. He seeks an absolute discharge or, in the alternative, a new hearing. He raises two grounds of appeal.

[2] First, the appellant argues that contrary to the Board's findings, he does not pose a significant danger to the safety of the public. This is because he now has insight into his mental illness, acknowledges that he requires medication, and takes medication.

[3] The appellant argues, and the respondents concede, that when medicated, he has not acted violently, and has maintained steady work and home ownership. The respondents also concede that the appellant has maintained this high level of functioning despite habitual and near daily marijuana use.

[4] Nevertheless, matters are complicated by the appellant's recent cocaine use. Prior to being found NCR, the appellant's manic episodes were preceded by cocaine use and associated non-compliance with medication. Given this history, as well as Dr. Ahmed's concerns that cocaine use increases the risk of violence for persons who have a major mental disorder, the Board's concern about the risk of harm posed by the appellant's recent return to cocaine use was reasonable, as was its decision not to grant an absolute discharge.

[5] We agree with the appellant, however, that he must succeed on his second ground of appeal. The appellant argues that transcription errors in the Board's reasons entitle him to a new hearing. In at least two places, the Board's reasons confuse the appellant with another hospital patient, referring to that patient's hospital report. The Attorney General of Ontario concedes that this error entitles the appellant to a new hearing. The hospital, however, argues that the disposition is nevertheless reasonable and should be upheld.

[6] On the face of the reasons, the Board relied on irrelevant material. Although the hospital argues that these are merely transcription errors that have since been corrected and did not impact the result reached, we are unable to ascertain whether, or to what extent, the Board's analysis was based on the hospital report of a different patient. In these circumstances, a new hearing must be ordered.

[7] We have been advised that the appellant's annual review hearing has been scheduled for February 2019. In the interests of efficiency, the new hearing ordered herein will be in the nature of the annual review and will take the place of the February 2019 hearing. The parties will be permitted to lead fresh evidence post-dating the 2018 annual review.

Disposition

[8] The appeal is allowed and a new hearing ordered.

"J.C. MacPherson J.A."

"C.W. Hourigan J.A."

"B.W. Miller J.A."