Court of Appeal for Ontario
Citation: Conway (Re), 2014 ONCA 635
Date: 2014-09-16
Docket: C57864
Watt, Tulloch and Benotto JJ.A.
In the Matter of: Paul Martin Conway
An Appeal Under Part XX.1 of the Code
Counsel:
Paul Martin Conway, in person
Suzan E. Fraser, for the appellant
Janice E. Blackburn, for the person in charge of St. Joseph’s Healthcare Hamilton
Riun Shandler, for the Crown
Heard: August 28, 2014
On appeal from the disposition of the Ontario Review Board, dated August 22, 2013.
Endorsement
[1] Mr. Conway appeals from a disposition of the Ontario Review Board (“ORB”). He has been detained in various psychiatric institutions since February 1984, when he was found not guilty by reason of insanity (“NGRI”) on a charge of sexual assault with a weapon. In the disposition under appeal, the ORB unanimously concluded that the appellant continues to pose a significant threat to the safety of the public and that detention in a general forensic unit with some additional privileges was the least onerous and least restrictive disposition in the circumstances.
[2] The conduct underlying the index offence involved an incident in which Mr. Conway threatened his aunt at knifepoint and forced her to have sexual intercourse with him repeatedly. Although the appellant’s various treating psychiatrists have disagreed regarding his precise diagnosis, the majority have diagnosed him as suffering from a major mental illness and a personality disorder.
[3] The appellant has had numerous hearings before the ORB. At the time of the disposition under appeal, he was detained in a medium secure unit at St. Joseph’s Healthcare Hamilton (“SJHH”).
[4] Before the Board, the appellant sought an absolute discharge or, alternatively, a conditional discharge. At a minimum, he sought privileges such as unescorted community passes. The Board unanimously concluded that the appellant continues to represent a significant threat to public safety. It was noted that while he had made progress during the period under review, he continued to present as verbally abusive, demanding, intimidating and threatening on a regular basis, with little ability to control his rage. The Board found that the appellant often made female staff members feel uncomfortable and suggested that the female students of nearby Mohawk College could be vulnerable if the appellant were left unsupervised. The Board concluded that without support from the hospital, there was a real possibility that an “untoward event” could place the public at significant risk of psychological or physical harm.
[5] Finally, the Board concluded that given the significant risk the appellant posed, the least onerous and least restrictive disposition was to detain him in a general forensic unit with the privilege of 48 hour travel passes within Southern Ontario, provided he is accompanied by hospital staff or another approved person.
[6] The appellant now appeals the disposition on several grounds.
[7] The appellant submits that the ORB erred by making a decision in the absence of positive evidence on the threshold question of significant risk. The appellant contends that there was no positive evidence that he posed a significant threat or risk to the safety of the public, and as such, he should have been granted an absolute discharge. According to the appellant, the Board erred by placing a burden on him to demonstrate behavioural control and a capacity to live without anger. The appellant claims that there were no incidents where he behaved inappropriately while in the community, which indicated that he does not pose a risk in these circumstances. The appellant further argues that he has a flawless record of behaviour when outside the hospital unit and was making progress in therapy. The Board, he says, ignored this fact, and thus fundamentally misapprehended the evidence.
[8] With respect to the Board’s reference to the proximity of Mohawk College to the hospital and observation that the school’s female population could be vulnerable, the appellant submits that this observation was either improper judicial notice or mere speculation which should not have been considered. None of the parties presented evidence or arguments on this subject, thus it was unfair of the Board to have considered this factor.
[9] The appellant further argues that the Board’s rejection of his request for indirectly supervised community privileges was unreasonable. As well, the Board fundamentally misapprehended the evidence or disregarded relevant evidence which favoured a more liberal disposition. And finally, the Board misapplied the test for a conditional discharge.
[10] We do not agree.
[11] The Board accepted and relied on the evidence contained in the appellant’s hospital record of over fifty documented incidents involving behaviour that ranged from threatening to assaultive. In addition, the appellant’s treating psychiatrist, Dr. Ferencz testified that the appellant represents a significant threat to the safety of the public.
We do not agree that the Board impermissibly placed a burden upon the appellant to demonstrate his capacity to live “without anger”. The Board correctly gave a significant amount of weight to the evidence of Dr. Ferencz who expressly disagreed with the suggestion that the appellant is less able to control his behaviour on the ward, given his relatively successful record of behaviour off the ward. The evidence before the Board clearly demonstrated that the appellant consistently exhibited explosive anger with little or no provocation, and that his mental condition, which included untreated paranoia, would at times reach psychotic proportions. The appellant’s behaviour, coupled with his lack of insight into his own condition, in our view, satisfies the test in R. v. Winko, 1999 694 (SCC), [1999] 2 S.C.R. 625, that he poses a foreseeable and substantial risk of physical or psychological harm to members of the public that is serious and beyond the trivial or annoying. In this regard, the Board’s finding of significant threat is reasonable.
[12] There was also evidence of the appellant’s noted progress which the Board considered and acted on. The hospital had recommended two very significant steps forward: a move from the secure forensic unit to the general forensic unit and community access with an approved person. The Board expressly referred to that evidence and accepted it. The Board rejected the submission that indirectly supervised community privileges be implemented on the basis that the appellant was ill-prepared to deal with the public on his own.
[13] The evidence before the Board was replete with incidents of concern relating to members of the public as well as patients, volunteers and hospital staff. There was also evidence that the appellant repeatedly made “inappropriate sexualized hetero-social interactions” with females that at times resulted in the hospital asking the appellant to “not interact” with the staff member.
[14] We agree that the Board’s concern, expressed for the first time in its reasons, about the proximity of Mohawk College to the hospital and the potential risk that the appellant may pose to female students was ill-advised. However, we do not find that this reference constituted an error of such significance that it requires appellate intervention. In our view, this reference was merely an observation and an illustration of a potential risk to public safety, given the appellant’s antecedents, if he were left unsupervised in the community.
[15] In our view, the Board correctly relied on the evidence which was adduced that the appellant represented a significant threat to the safety of the public. The Board then considered what would be the least onerous and least restrictive disposition, having regard to the enumerated factors as set out in s. 672.54 of the Criminal Code.
[16] In our view, the Board correctly concluded that a conditional discharge was not an available disposition. The Board relied on the hospital’s plan for gradual reintegration back into the community. It was entitled to do so.
[17] Accordingly, the appeal is dismissed.
“David Watt J.A.”
“M. Tulloch J.A.”
“M.L. Benotto J.A.”