Conway (Re), 2012 ONCA 519

Case Summary

The appellant, who was found not criminally responsible and detained in a psychiatric facility, appealed a decision of the Ontario Review Board. He argued that his transfer to a more restrictive unit violated his rights under sections 7 and 9 of the Charter, and sought a conditional discharge as a stand-alone remedy under section 24(1). The Court of Appeal dismissed the appeal, upholding the Board's findings that the transfer was necessary due to the appellant's dangerous conduct and did not violate his Charter rights. The Court also affirmed that the Board lacks jurisdiction to grant a Charter remedy, such as a conditional discharge, that would endanger public safety and frustrate its statutory mandate.

In the Matter of Conway [Indexed as: Conway (Re)]

111 O.R. (3d) 605

2012 ONCA 519

Court of Appeal for Ontario,

Rosenberg, Sharpe and Juriansz JJ.A.

July 30, 2012

Charter of Rights and Freedoms -- Remedies -- Accused seeking stand-alone remedy of discharge with conditions as stand-alone remedy even if Ontario Review Board finding could not protect safety of public by doing so -- Board not having jurisdiction to grant remedy under s. 24(1) of Charter where remedy sought would endanger safety of public and frustrate Board's mandate -- Canadian Charter of Rights and Freedoms, s. 24(1).

Criminal law -- Mental disorder -- Charter of Rights and Freedoms -- Not-criminally-responsible ("NCR") accused separated from other patients as his conduct making it unsafe for him to remain with them -- Transfer not violating NCR accused's rights under s. 7 or s. 9 of Charter -- Hospital complying with Code provisions requiring Ontario Review [page606] Board notification following significantly increasing restrictions on appellant's liberty -- Canadian Charter of Rights and Freedoms, ss. 7, 9.

The NCR appellant was being held at the Centre for Addiction and Mental Health ("CAMH"), where he was transferred to South Pod, which the appellant amounted to virtual segregation and was not the least onerous and restrictive disposition. CAMH explained that they had moved the appellant because his conduct made it dangerous for him to remain with other patients; he had rebuffed attempts to be reintegrated with other patients and he had refused to participate in treatment, fearing that he would undermine his litigation by abiding by conditions imposed by the hospital that he felt were unreasonable. The Ontario Review Board conducted a hearing combining a review of the appellant's disposition order from 2006, an annual review of his current order of detention and a restriction of liberty hearing. The Board also considered the appellant's application for a declaration that his rights under [ss. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-19

Conway (Re), 2012 ONCA 519

Case Summary

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