Court of Appeal for Ontario

Date: November 20, 2019 Docket: C66849

Panel: Hoy A.C.J.O., Doherty and Zarnett JJ.A.

In the Matter of: Benjamin Omiyi

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• O. Benjamin Vincents, for the appellant
• Gregory Furmaniuk and Michele Warner, for the respondent

Heard and Released Orally: November 15, 2019

On Appeal From: The disposition of the Ontario Review Board, dated March 21, 2019.

Reasons for Decision

Issues

[1] There are two issues: 1) did the Board err in not granting some form of discharge; 2) if the Board properly made a detention order, did the Board err in not including a term allowing the appellant to live in the community in accommodation approved by the Hospital?

Did the Board Err in Making a Detention Order?

[2] The Board accepted Dr. Ramshaw's evidence. On that evidence, a detention order was the only viable order at this stage of the appellant's progress. The Board provided no separate analysis of the feasibility of a conditional discharge. It would have been better had the Board specifically addressed that possible disposition. However, in our view, the unconditional acceptance of the Hospital's evidence clearly carried with it the determination that a detention order was essential at this time. We would not give effect to this ground of appeal.

Did the Board Err in Not Including a Term Allowing for the Possibility of Community Living?

[3] The Hospital recommended a number of terms that it suggested should be attached to the detention order. Those terms were all aimed at facilitating the reintegration of the appellant into the community if public safety and the appellant's condition so warranted. The Board accepted all of the proposed conditions, except one. The Hospital had recommended that the appellant be allowed to live in the community in accommodation approved by the Hospital. The Hospital felt that there was a possibility that the appellant may be ready to live in the community, and more specifically at home in the ensuing year. The Crown supported this condition.

[4] The Board made no reference to the Hospital's position on this term and, in fact, misunderstood the position as providing for a detention order on the same terms as the previous order. The Board misapprehended the Hospital's position and, in doing so, failed to consider the evidence as it related to that position.

[5] The evidence, in our view, went all one way on this point. It fully supported the Hospital's recommendation that a community living term should be included in the detention order. The Board's failure to consider that position and the underlying evidence, in our view, constitutes an error in law and resulted in an unreasonable disposition.

[6] We have considered the appropriate remedy. The Hospital suggests a new hearing. In our view, on this evidence, the only reasonable disposition would have been a detention order that included the provision allowing for community living at an accommodation approved by that Hospital. We would allow the appeal to the extent of upholding the detention order, but inserting in that detention order a clause to that effect. To that extent, the appeal is allowed.

Alexandra Hoy A.C.J.O.

Doherty J.A.

B. Zarnett J.A.