Tolias (Re), 2021 ONCA 478

Court of Appeal for Ontario

Date: 2021-07-02 Docket: C68995

Before: Hourigan, Paciocco and Zarnett JJ.A.

In the Matter of: Helen Tolias

An Appeal Under Part XX.1 of the Code

Counsel: Suzan E. Fraser, for the appellant Manasvin Goswami, for the respondent, Attorney General of Ontario No one appearing for the respondent, Person in Charge of Providence Care Hospital Kingston

Heard: June 25, 2021 by videoconference

On appeal from the disposition of the Ontario Review Board, dated October 1, 2020, with reasons dated October 30, 2020.

Reasons for Decision

1Helen Tolias is currently under the jurisdiction of the Ontario Review Board (the “Board”) as the result of a 2006 verdict of not criminally responsible on account of mental disorder (“NCR”) arising from non-violent criminal harassment charges. Sadly, Ms. Tolias has been under detention orders since that time, including, more recently, at the Secure Forensic Unit of Providence Care Hospital, Kingston (“Providence Care SFU”).

2Ms. Tolias’ most recent disposition review occurred on September 17, 2020, by videoconference, in Ms. Tolias’ absence. The Board decided to proceed in absentia after learning that Ms. Tolias was not comfortable having a videoconference hearing, and after being informed that she had discharged her lawyer. The Board appointed Ms. Tolias’ discharged lawyer as amicus before proceeding with the hearing.

3On October 1, 2020, the Board released its disposition arising from the September 17, 2020 hearing (the “October 2020 Disposition”). The October 2020 Disposition ordered Ms. Tolias to be detained forthwith at the Forensic Psychiatry Program of St. Joseph’s Health Care Hamilton (“St. Joseph’s FPP”), on conditions.

4Ms. Tolias now appeals the October 2020 Disposition. She argues that:

(1) The Board committed a jurisdictional error in proceeding by videoconference without her consent;

(2) The Board erred in law by applying the wrong test in determining that she poses a significant threat to the safety of the public; and

(3) The Board’s finding that detention on conditions is the least onerous and restrictive disposition, rather than a conditional or absolute discharge, is unreasonable.

5It is unnecessary for us to consider the last two grounds of appeal, since the Crown correctly concedes the first ground. In Woods (Re), 2021 ONCA 190, 154 O.R. (3d) 481, at para. 7, this court determined that the Board “did not have jurisdiction to proceed by videoconference without the consent of the NCR accused.” By doing so in this case, the Board committed a jurisdictional error.

6The Crown nonetheless submits that we should dismiss the appeal pursuant to s. 672.78(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46, notwithstanding the Board’s “legal error”. The Crown argues that “no substantial wrong or miscarriage of justice” occurred because, in “this unique situation”, the Board’s decision to proceed was reasonable and the subsequent hearing was fair.

7In our view, s. 672.78(2)(b) does not apply because the authority to dismiss an appeal from a disposition under s. 672.78(2)(b) is confined to decisions “based on a wrong decision on a question of law”. The Board’s error in conducting a videoconference hearing without Ms. Tolias’ consent was not simply a wrong decision on a question of law or a mere procedural error. It was a jurisdictional error that rendered the disposition “null and void”: Woods (Re), at para. 7. A disposition arrived at without jurisdiction constitutes “a miscarriage of justice” which cannot be saved pursuant to s. 672.78(2)(b).

8In the alternative, the Crown submits that if we allow Ms. Tolias’ appeal, we should exercise our jurisdiction pursuant to s. 672.78(3)(a) of the Code to make a disposition that is identical to the Board’s October 2020 Disposition.

9Ms. Tolias also asks us to make a disposition, but she requests an absolute discharge, or, alternatively, a conditional discharge.

10Mindful that Ms. Tolias is prepared to permit us to do so, we do not consider it to be in the interests of justice to arrive at a disposition based on a record generated in a hearing that proceeded without jurisdiction and was conducted without Ms. Tolias’ participation.

Conclusion

11Accordingly, the appeal is allowed, the October 2020 Disposition is set aside, and a new hearing is ordered. The new hearing is to be held at the earliest possible opportunity once in-person Board hearings resume, or, if Ms. Tolias consents in writing to a videoconference or telephone hearing, at the earliest available opportunity for a videoconference or telephone hearing.

12The Board’s disposition of January 29, 2020 (the “January 2020 Disposition”) therefore remains in force pending a new disposition. However, it is in the interests of justice to vary the January 2020 Disposition, which required Ms. Tolias to be detained at Providence Care SFU in Kingston. Pursuant to the October 2020 Disposition, now set aside, Ms. Tolias was ordered to be detained at St. Joseph’s FPP in Hamilton, which is closer to where her family resides. Due to a wait list delay, Ms. Tolias was only recently moved to St. Joseph’s FPP. It is not in the interests of justice, nor in Ms. Tolias’ interest, to return her to Providence Care SFU.

13Therefore, s. 1 of the January 2020 Disposition is varied to replace the term “Secure Forensic Unit of the Providence Care Hospital, Kingston, Ontario”, with “Forensic Psychiatry Program at St. Joseph’s Health Care Hamilton, West 5th Campus”.

14Section 2 of the January 2020 Disposition is varied as follows:

(i) to replace all references to “Providence Care Hospital” in s. 2 with “St. Joseph’s Health Care Hamilton”;

(ii) to replace the term “Secure Forensic Unit of the Providence Care Hospital”, with “Forensic Psychiatry Program at St. Joseph’s Health Care Hamilton”; and

(iii) to replace all references to “Kingston” in s. 2 with “Hamilton”.

15Sections 3 and 4 of the January 2020 Disposition, as well as the “COMMAND” to the person in charge of the “Providence Care Hospital”, are all varied to replace the term “Providence Care Hospital” with “St. Joseph’s Health Care Hamilton”.