Court of Appeal for Ontario

Date: February 14, 2018

Docket: C63120

Judges: Rouleau, Watt and Brown JJ.A.

In the Matter of: Paul Conway

An Appeal Under Part XX.1 of the Code

Counsel:

• Suzan E. Fraser and Sarah Harland-Logan, for the appellant, Paul Conway
• Avene Derwa, for the respondent, Her Majesty the Queen ("Ontario")
• Janice Blackburn, for the respondent, the Person in Charge of the St. Joseph's Healthcare Hamilton

Heard: January 12, 2018

On appeal against the disposition of the Ontario Review Board dated November 14, 2016.

Reasons for Decision

I. Overview

[1] The appellant, Paul Conway, appeals from the November 14, 2016 disposition (the "Disposition") of the Ontario Review Board (the "Board"). The Disposition continued Mr. Conway's detention at a General Forensic Unit of St. Joseph's Healthcare Hamilton (the "Hospital"), as well as the set of conditions contained in its previous February 25, 2016 disposition (the "February 2016 Disposition"). The Board refused the Hospital's request to transfer Mr. Conway to another institution.

[2] Mr. Conway does not take issue with the Board's finding that he remains a significant threat to the safety of the public, nor with its rejection of his request for an absolute or conditional discharge. Nor does he dispute the Board's continuation of the conditions contained in its February 2016 Disposition.

[3] Instead, Mr. Conway raises two issues: (i) the Board erred in refusing to grant him a second adjournment of the review hearing and dismissing his document disclosure motion; and (ii) the Board erred in failing to find that the Hospital's March 2016 reduction of his privileges and subsequent implementation of a behaviour intervention plan infringed his rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms.

[4] For the reasons set out below, we dismiss his appeal.

II. Background Facts

[5] Mr. Conway has been detained under the Board's jurisdiction for over 30 years. His history was summarized in this court's decision dismissing his appeal from the February 2016 Disposition: Conway (Re), 2016 ONCA 918 ("Conway 2016"). We need not repeat it.

[6] The hearing held by the Board in November 2016 was not an annual review. In its reasons for the February 2016 Disposition, the Board described Mr. Conway as a "prodigiously difficult patient." It observed that the imminence of a Board hearing seemed to improve Mr. Conway's behaviour, offering a measure of protection for Hospital staff and his co-patients. In the hope that improvements in his behaviour would continue, the Board ordered a six-month review of Mr. Conway's detention. Originally scheduled for July 2016, the six-month review ultimately was heard in November 2016, which resulted in the Disposition under appeal.

[7] Mr. Conway's next review hearing currently is scheduled for April 2018.

III. Fresh Evidence

[8] Both Mr. Conway and the Hospital filed motions for leave to adduce fresh evidence. In his fresh evidence affidavit, Mr. Conway describes events on his unit from the date of the Disposition until August 2017. In its affidavit, the Hospital describes: (i) the behaviour intervention plans in place at the time of the Disposition; (ii) some events involving Mr. Conway that took place on the unit in 2017; and (iii) the Hospital's community reintegration plan for Mr. Conway that it plans to place before the Board at the April 2018 annual review.

[9] No objection was taken to the admission of the fresh evidence. Accordingly, given the more relaxed approach taken to fresh evidence about events taking place after the disposition under appeal, we grant leave to both parties to file their fresh evidence.

IV. First Issue: Did the Board Err in Refusing to Grant a Second Adjournment of the Hearing and in Dismissing the Appellant's Production Motion?

A. The Issue Stated

[10] The Board initially scheduled Mr. Conway's six-month hearing for July 2016. Mr. Conway sought an adjournment so that he could retain counsel. The Board granted his request.

[11] On November 8, 2016, the day before the re-scheduled hearing, Mr. Conway filed a motion seeking a further adjournment. The Board heard the adjournment motion the following day at the start of the hearing.

[12] Mr. Conway submitted that adjourning the six-month review hearing until this court released its decision on his appeal from the February 2016 disposition would enable the Board to receive guidance on how the Hospital should perform periodic night checks without interrupting his sleep. As well, he sought disclosure from the Hospital of all documents in its possession "that are not already in the clinical record relating to the exercise of the authority delegated by the Board to the Person-in-Charge." Mr. Conway contended that administrative documents involving directions to Hospital staff about his care should be produced prior to the hearing because he was entitled to know the basis upon which the Person-in-Charge was exercising his delegated authority.

[13] The Board refused Mr. Conway's requests for an adjournment and production. Mr. Conway submits the Board erred in so doing.

B. Analysis

[14] In explaining why it refused Mr. Conway's request for a second adjournment, the Board stated:

The background to this request is important. The hospital has been asking for a transfer since October 2015, and the Board has yet to decide the issue. Mr. Conway's annual hearing in January 2016 was adjourned, and in February 2016 the ORB panel decided against a transfer at that time but ordered a 6-month review. That review was scheduled for July 21, 2016 and adjourned so Mr. Conway could retain counsel. Since then, there have been multiple [Pre-Hearing Conferences ("PHC")] and all parties, including [Mr. Conway's counsel], confirmed their readiness to proceed at the final PHC on November 3, 2016. Meantime, Mr. Conway's appeal was scheduled for September 7th, but adjourned before being heard on September 30th.

Though the Board would prefer to have the OCA's reasons before conducting this hearing, there are other factors to consider. First, the hospital has been seeking a transfer for more than a year. Second, Mr. Conway has had limited privileges since early March 2016, and the hospital seeks a change in his disposition as well as transfer to another forensic hospital. In these circumstances, adjourning the matter does not serve the interests of either the hospital or Mr. Conway. A fresh disposition is necessary to achieve closure on the events of recent months and determine whether Mr. Conway will remain at St. Joseph's, transfer to Southwest Centre, or be granted a form of discharge, as he asks. It is also worth noting that the February 2016 hearing was marked as peremptory; an adjournment was granted in July on condition that the next hearing date would be peremptory; and the PHC Report recorded the understanding of the parties that the date for this hearing was peremptory (November 1, 2016). Should it be necessary, a hearing can be called and a new Board empanelled to deal with any matters arising from the OCA's decision. To assume inconsistency between the OCA and the outcome at this hearing is speculative and does not warrant an adjournment.

[15] The Board's reasons disclose it reasonably exercised its discretion in refusing Mr. Conway's second adjournment request. As required by the framework set down by this court in Conway 2016, at para. 23, the Board balanced the interests of Mr. Conway and the Hospital, considered its statutory mandate to hold timely hearings – in this case a six-month review – and assessed the fairness to Mr. Conway of going ahead with the hearing. As well, the Board addressed Mr. Conway's concern about his outstanding appeal from the February 2016 Disposition by indicating it would be open to convening a new panel after this court released its reasons, should the need arise. Consequently, we see no error in the Board's refusal of the adjournment request.

The Production Request

[16] The Board also dismissed Mr. Conway's motion for the pre-hearing disclosure of Hospital administrative documents and correspondence, stating:

Mr. Conway is mistrustful of the hospital and is concerned that his clinical file lacks transparency on issues concerning his care since the last ORB hearing. The Board decided against a disclosure order for four reasons. First, when the issue was raised at the PHC, [Hospital counsel] undertook to determine whether an administrative file existed, and [Mr. Conway's counsel] accepted his advice that there is no such file… Second, apart from the Progress Note and Dr. Chaimowitz's July 22 email to the ORB, there are scant grounds for concluding that relevant evidence exists and requires an order to disclose. Third, the Board is mindful that the hearing not be treated as a dispute between Mr. Conway and hospital administration; the analogy to Stinchcombe is less relevant for that reason. And, as [Crown counsel] indicated, the Board can seek further evidence (though it does not have the same role on Charter claims; R. v. Starz (2015), 2015 ONCA 318, 125 O.R. (3d) 663, para. 122). Fourth, a disclosure order would require an adjournment, which the Board is reluctant to grant.

[17] This was not the first time Mr. Conway had sought an order requiring production of all documents in a hospital's possession, including emails relating to his care. Mr. Conway advanced a similar request at his 2011 review hearing. The Board rejected the request. This court found no error in the Board's refusal, holding that Mr. Conway had received extensive disclosure of records relating to his care, including a complete package of hospital progress notes, and could not identify any document that might assist at the hearing: Conway (Re), 2012 ONCA 519, 11 O.R. (3d) 605, at para. 11.

[18] The same result holds true on this appeal. The Board's pre-hearing conference process canvassed at some length whether documents sought by Mr. Conway existed. We see nothing unreasonable in the Board's finding that there were scant grounds to conclude relevant evidence existed in addition to the extensive disclosure already made to Mr. Conway. Further, the Board recognized its review proceedings are inquisitorial in nature, as a result of which it could "take steps to obtain evidence should it become aware of gaps in relevant information."

[19] Mr. Conway advances a further argument based on ss. 672.51(1) and (2) of the Criminal Code. Those sections require the Board to provide copies to all parties of "disclosure information", which includes "written information before the … Review Board about the accused that is relevant to making or reviewing a disposition." One of the issues before the Board at the November hearing concerned the fairness and lawfulness of the Hospital's March 2016 reduction of Mr. Conway's privileges. Mr. Conway submits, on the authority of a footnote comment in M.L.C. v. Ontario (Review Board), 2010 ONCA 843, at para. 33, fn. 2, that any direction by a hospital to change a patient's liberty within the envelope of existing disposition conditions is deemed by s. 672.56(1) to be a disposition made by the Board. It therefore follows, according to Mr. Conway, that any written information concerning such a change constitutes "disposition information" within the meaning of s. 672.51(1), which must be disclosed to the NCR accused prior to a review hearing.

[20] It is unnecessary to offer any definitive view on this submission. As s. 672.51(1) makes clear, "disposition information" means the assessment report and "any other written information before the court of Review Board about the accused that is relevant to making or reviewing a disposition." [Emphasis added] Prior to the hearing, Mr. Conway received an extensive Hospital Record, which contained information about the reduction of privileges issue in both the Nursing Report and the Clinical Risk Assessment. Requests for additional disclosure were canvassed during the numerous Pre-Hearing Conferences. The Board concluded that "apart from the Progress Note and Dr. Chaimowitz's July 22 email to the ORB," there were "scant grounds for concluding that relevant evidence exists and requires an order to disclose." Mr. Conway has not offered any evidence-based reason to call into question the reasonableness of the Board's conclusion that no other relevant evidence existed.

[21] In those circumstances, the Board did not err in refusing to order further disclosure. Nor do we see any unfairness resulting from the Board's refusal of Mr. Conway's production request.

Summary

[22] We see no reversible errors in the Board's refusals of Mr. Conway's adjournment and production requests. The Board's decisions were based on reasonable considerations of proper factors to ensure a fair hearing.

V. The Board's Refusal to Find Alleged Charter Violations

A. Background

[23] Mr. Conway filed with the Board a Notice of Constitutional Question in which he asked the Board to find that the Hospital had infringed his rights under ss. 7, 8, 9 and 15 of the Charter by reason of the following conduct: (i) putting his privileges on hold on March 10, 2016; (ii) requiring him to remain outside his room while cleaned by staff; and (iii) assigning two staff members to escort him to move around the Hospital.

[24] By way of background, in early 2016 Mr. Conway was detained on the General Forensic Unit. He was exercising Level 4 privileges – indirectly supervised hospital and grounds privileges and indirectly supervised community privileges in designated areas. He was using indirectly supervised community passes for a few hours at a time, several times a week.

[25] On March 10, 2016, the Hospital withdrew his privileges upon learning of incidents involving Mr. Conway's aggressive conduct toward cleaning staff, both at the Hospital and in the community. As a result, Mr. Conway was restricted to the unit.

[26] Escorted hospital grounds (Level 2) privileges were offered to Mr. Conway by early April 2016, but he refused to leave his unit for five months following the withdrawal of privileges. In August 2016, Mr. Conway finally started to use the Level 2 privileges.

[27] After the March 2016 incidents, the Hospital put in place a plan for interactions between Mr. Conway and his care team. At the hearing it was called a "care plan"; the Hospital's fresh evidence describes it as a "behavior intervention plan." The plan includes a requirement that two staff escort Mr. Conway when he leaves his room and be present for all communications with staff. A separate plan for the daily cleaning of Mr. Conway's room requires him to remain in the visitor's lounge while staff clean his room.

[28] In his Notice of Constitutional Question, Mr. Conway advanced a two-pronged Charter argument. First, he contended the Hospital's March 2016 withdrawal of his Level 4 privileges violated his s. 7 rights because the withdrawal lacked due process, consisting of the Hospital's failure to (i) inform him of the reason for the withdrawal, (ii) afford him an opportunity to respond to the allegations made against him, and (iii) report the withdrawal to the Board as a significant increase of the restrictions on his liberty pursuant to s. 672.56(2) of the Criminal Code.

[29] Second, Mr. Conway argued the Hospital's care or behavior intervention plan infringed his ss. 7 and 9 Charter rights by (i) requiring a 2:1 staff escort ratio, (ii) implementing a "zero tolerance" policy towards his misconduct, and (iii) requiring his absence from his room during its cleaning.

B. The Board's Reasons

[30] The Board is entitled to decide constitutional questions, including Charter questions, which arise in the course of its proceedings: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 84. It has the power to make findings as to whether an appellant's Charter rights have been breached: Starz (Re), 2015 ONCA 318, at para. 104.

[31] The Board considered the allegations particularized in Mr. Conway's Notice of Constitutional Question. It was not prepared to find that the withdrawal of Mr. Conway's privileges was a significant increase of the restrictions on his liberty within the meaning of s. 672.56(2). The Board went on to find that the Hospital did not violate Mr. Conway's Charter rights stating, at paras. 93 and 94:

The Board finds that the hospital did not violate standards of fairness and that Mr. Conway is not entitled to a remedy. The panel observes that the hospital's zero tolerance policy was harsh, and notes that the hospital could have been more transparent with Mr. Conway about the investigation and its outcome. Whether doing so might have promoted a positive therapeutic response or improvement in Mr. Conway's behavior is difficult to know; throughout this period Mr. Conway refused to meet with his psychiatrist, Dr. Prat, and refused to leave the unit for almost 5 months, until August. And more recently, the hospital could have reviewed the 2:1 staff escort requirement once Mr. Conway's behavior became more acceptable, in September and October. Even so and in all the circumstances, the Board finds it difficult to fault the hospital for the steps it took in dealing with Mr. Conway's escalated behavior, harsh as those steps were.

Otherwise, Ms. Fraser abandoned her claim under s. 8 of the Charter, and the Board does not comment further on ss. 9 and 15 of the Charter, except to state that the evidence at the hearing does not support a finding of race discrimination – either direct or systemic in nature – against Mr. Conway.

C. Analysis

[32] Mr. Conway submits that in reaching those conclusions, the Board fettered its discretion such that it erred in law. He contends the Board declined to exercise its oversight function to ensure the Hospital treated him fairly.

[33] We do not agree.

The Alleged Lack of Due Process

[34] The record does not support Mr. Conway's submission that the Hospital failed to inform him of the reason for the withdrawal of his privileges or afford him an opportunity to discuss the allegations. Dr. Prat, the treating psychiatrist, and a staff member, Ms. O'Connell, met with Mr. Conway to inform him that complaints from the housekeeping staff had led to the withdrawal of his privileges. They told him the allegations were being investigated and he should be patient. Initially, Mr. Conway was calm. However, after a few days his behaviour became significantly disruptive, threatening, and out of control. For the next five months, Mr. Conway rebuffed efforts by Dr. Prat to discuss the issue and how he could restore his privileges.

[35] Mr. Conway also contends the withdrawal of his privileges lacked due process because the Hospital did not give a restriction of liberty notice to the Board. Sections 672.56(2) and 672.81(2.1) of the Criminal Code are procedural provisions. Where a significant increase in the restrictions on a NCR accused's liberty occurs and remains in force for more than seven days, a hospital must give notice to the Board: s. 672.56(2)(b). The Board then is required to hold "as soon as practicable" a hearing to review the decision that significantly increased the restrictions on liberty: s. 672.81(2.1). Combined, the sections provide a mechanism by which to obtain a timely Board review of any significant increase of liberty restrictions.

[36] The procedural history of this proceeding makes it unnecessary to decide the appellant's submission that the Board erred in finding that the March 2016 withdrawal of privileges did not amount to a significant increase of the restrictions on Mr. Conway's liberty within the meaning of s. 672.56(2). Assuming, without deciding, that the Hospital should have notified the Board about the withdrawal of Mr. Conway's privileges in March 2016, for two reasons we see no resulting prejudice to Mr. Conway in the specific circumstances of this case.

[37] First, the issue of the Hospital's reduction of Mr. Conway's privileges was fully argued before the Board at the November hearing. Both the Hospital and Mr. Conway called evidence on the issue. The Board considered that evidence, together with the parties' submissions, and addressed the issue in its reasons.

[38] Second, it must be recalled that the November hearing originally was scheduled to be held in July 2016, only a few months after the reduction of privileges. It was adjourned at Mr. Conway's request.

[39] When those circumstances are considered, we are not persuaded that Mr. Conway suffered any procedural or substantive prejudice from the timing of the Board's ultimate consideration of the reduction of privileges issue at the November hearing.

The Hospital's Care Plan

[40] Turning to Mr. Conway's allegations concerning the Hospital's care plan, in our view it was reasonable for the Board to conclude that the Hospital's staff escort, zero tolerance, and room cleaning policies did not violate Mr. Conway's ss. 7 and 9 Charter rights. The Board's conclusion was amply supported by the evidence about the difficulties some Hospital staff were encountering in managing Mr. Conway's aggressive outbursts and behaviour, the impact of such conduct on other patients and staff, and Mr. Conway's selective compliance with directions from some staff but not from others. As well, it was implicit in the Board's reasons that the Hospital's care plan amounted to the least onerous and least restrictive means by which to manage Mr. Conway in the circumstances. We see no basis on which to interfere with the Board's decision on this issue.

Seclusion in the Management Plan

[41] Mr. Conway also submits the inclusion of potential seclusion in the Hospital's behaviour intervention plan violated his Charter rights. Mr. Conway did not advance this argument before the Board; he raises it for the first time on appeal. We accept the submissions of the Hospital and Ontario that in those circumstances it would not be appropriate for this court to consider his submission.

VI. Disposition

[42] For the reasons set out above, we dismiss Mr. Conway's appeal from the Board's November 14, 2016 Disposition.

"Paul Rouleau J.A." "David Watt J.A." "David Brown J.A."

[1] This court's decision was released on December 6, 2016, several weeks after the Board's hearing concluded.