Court of Appeal for Ontario

Date: 2022-12-13 Docket: C70577

Judges: Fairburn A.C.J.O., Doherty and Favreau JJ.A.

In the Matter of: Shafaq Joya An Appeal Under Part XX.1 of the Code

Counsel

• Anita Szigeti and Michael Schloss, for the appellant
• Andrew Cappell, for the respondent, Attorney General of Ontario
• Julia Lefebvre, for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton

Heard and released orally: December 9, 2022

On appeal from: The disposition of the Ontario Review Board, dated March 22, 2022, with reasons dated April 20, 2022.

Reasons for Decision

[1] This is an appeal from the March 23, 2022 disposition of the Ontario Review Board imposing a detention order with privileges up to, and including, residing in the community. There is one question that requires resolution on appeal: whether the Board incorrectly and unreasonably concluded that a conditional discharge was not the least onerous and least restrictive disposition available?

[2] In our view, the Board applied the correct legal test in rejecting a conditional discharge, reasonably determining that a detention order was the necessary and appropriate disposition in the circumstances.

[3] We do not agree that this case is similar to Williams (Re), 2021 ONCA 90, where the decision to justify the rejection of a conditional discharge was based on expediency alone. In this case, the Board’s reasons extend well beyond expediency and, in our view, are clear. Those reasons culminate in the following conclusion reached by the Board, a conclusion that was available on the factual record:

The circumstances at the time of the Index Offence and the brutal nature of the event which occurred without warning, or any prior history of conflict with the victim or of violent criminal behaviour, requires that the hospital take a very cautious approach and as indicated by Dr. Nagari, have the ability to monitor Mr. Joya closely and act quickly if necessary to intervene and return him to St. Joseph’s. This is best done with the current detention order.

[4] The appeal is dismissed.

"Fairburn A.C.J.O." "Doherty J.A." "L. Favreau J.A."