CITATION: Chavez (Re), 2011 ONCA 177 |
DATE: 20110304 |
DOCKET: C52680 |
COURT OF APPEAL FOR ONTARIO |
Moldaver, Cronk and Juriansz JJ.A. |
BETWEEN |
Her Majesty the Queen |
and |
Centre for Addiction and Mental Health |
Respondents |
and |
Wilbert Chavez |
Appellant |
Wilbert Chavez, in person |
Joseph Di Luca, amicus curiae |
Grace Choi, for the Crown |
Heard: March 2, 2011 |
On appeal from the disposition of the Ontario Review Board dated August 12, 2010. |
APPEAL BOOK ENDORSEMENT |
[1] We are satisfied that the Board’s reasons in this case do not clearly indicate that the Board addressed the potential mechanisms for the appellant’s return to the Hospital in the event of his non-compliance with conditions that, appropriately fashioned, might have ensured adequate containment of his risk had he received a conditional discharge. In particular, the Board’s reasons do not reflect consideration of the applicable provisions of the Criminal Code under which the return of the appellant to the Hospital might be achieved in the event of his decompensation while living in a supervised community setting. This was a required consideration in order to ensure that the disposition imposed was the least onerous and least restrictive in all the circumstances: see R. v. Breitwieser, 2009 ONCA 784, at para. 18.
[2] Accordingly, the Board’s August 12, 2010 disposition cannot stand and a new hearing is required. We were informed that a hearing for the appellant is now scheduled for March 9, 2011. In these circumstances, this matter is remitted to the Board for rehearing on March 9, 2011. At this rehearing, of course, the Board will consider the updated Hospital report and related materials that were filed with this court on the appellant’s fresh evidence application and any other relevant materials.
[3] The appeal is therefore allowed in accordance with these reasons.