Court of Appeal for Ontario

Date: 2018-11-22 Docket: C65106

Judges: Doherty, Rouleau and van Rensburg JJ.A.

In the Matter of: Edward Osawe

An Appeal Under Part XX.1 of the Code

Counsel:

• Kelley Bryan, for the appellant
• Eric H. Siebenmorgen, for the Attorney General of Ontario
• Gavin S. MacKenzie, for the Centre for Addiction and Mental Health

Heard and released orally: November 16, 2018

On appeal from: the disposition of the Ontario Review Board, dated February 6, 2018.

Reasons for Decision

[1] We are satisfied that the appeal of the Board's disposition should be dismissed subject to one variation.

[2] The appellant asserts that the disposition is unreasonable. Essentially, his argument is that the Board failed to consider that the terms of the proposed conditional discharge would, in effect, provide the same protection for the public as the current detention order.

[3] We disagree. The Board was alive to the appellant's desire for a conditional discharge and his willingness to consent to treatment. The issue, however, was whether the structure he required, including supervision, which until that point was 24 hours a day (with the exception of four 45 minutes periods per week, when Mr. Osawe was in the community unsupervised), could be provided other than through a detention order.

[4] The Board concluded that the proposed conditional discharge terms did not provide the structure required for Mr. Osawe's continued transition from a group home to community living with less supervision. There was a need for the Hospital to continue to approve housing and to monitor Mr. Osawe's mental state and to intervene quickly if necessary to return him to the Hospital should there be a decompensation.

[5] The appellant is correct that the Board's summary of the expert evidence incorrectly states that Mr. Osawe had historically stopped taking medication in the absence of supports. In fact, Dr. Mishra's evidence was that Mr. Osawe had historically expressed the wish to stop his medication once he was outside the jurisdiction of the Board. Dr. Mishra's concern was that Mr. Osawe had "a long history of supervision failures", with a lengthy period of unstable housing before he came under the Board's jurisdiction, and a poor understanding of his mental illness, and he continued to deny his role in the index offences. In these circumstances, although Mr. Osawe was compliant with medication, and abstained from substances, he had not internalized the controls that were essential to his continued recovery. While the appellant was doing well in his present residence, this was because of the structured environment and intensive daily supervision. As the Board accepted, the Hospital needed to be able to approve the appellant's accommodation and to manage his risk to the community during this time of transition to less supervision in the community.

[6] We do not see anything unreasonable in the Board's refusal to order a conditional discharge. The disposition, apart from the failure to remove the 24 hour supervision requirement, is fully supported by the evidence that was before the Board, including the Hospital report and Dr. Mishra's testimony. The Board engaged appropriately with the issues and reasonably concluded that a conditional discharge was not appropriate at this time.

[7] We agree with the parties that the Board's failure to remove the 24 hour supervision condition appears to have been an oversight. The evidence fully supports that the goal for Mr. Osawe is to continue his transition to less supervised accommodation in the community, consistent with the considerable progress he has been making.

[8] The appeal is therefore allowed, but only to the extent that the disposition is amended to remove the phrase "24 hour a day supervised" from para. 2(f).

"Doherty J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."