Court of Appeal for Ontario
CITATION: Conway (Re), 2016 ONCA 36
DATE: 20160115
DOCKET: C59789
MacPherson, Watt and Miller JJ.A.
IN THE MATTER OF: PAUL MARTIN CONWAY
AN APPEAL UNDER PART XX.1 OF THE CODE
Suzan E. Fraser, for the appellant
Kevin Rawluk, for the respondent Crown
Janice Blackburn, for the Person in Charge of St. Joseph’s Healthcare
Heard: January 12, 2015
On appeal against the disposition of the Ontario Review Board dated November 24, 2014.
ENDORSEMENT
[1] The appellant Paul Conway is a 62 year old man in his 32nd year of detention in Ontario’s forensic mental health system. In 1984, he was found not guilty by reason of insanity on a charge of using a weapon while committing a sexual assault.
[2] On November 24, 2014, the Ontario Review Board (“ORB”) conducted its annual review of the appellant’s case. At the time, he was detained in a minimum security unit at St. Joseph’s Healthcare in Hamilton. The ORB unanimously concluded that the appellant remained a significant threat to public safety. He continued to present as verbally abusive, intimidating and threatening, with little ability to control his explosive anger. In light of the significant risk posed by the appellant, the ORB concluded that the least onerous and least restrictive disposition was a detention order in minimum security with indirectly supervised community privileges and the privilege of residing in the community in approved accommodation.
[3] The ORB also dealt with a specific issue relating to sleep deprivation:
In the course of the hearing, the Board heard evidence with respect to Mr. Conway’s sleep deficits, deficits which might well be a contributing factor to his behaviour. The protocols of the hospital of necessity require hourly bed checks, which offend Mr. Conway’s sense of privacy and which for the most part appear to be benign, except for his desire to be awakened on an hourly basis instead of hospital personnel simply taking a view of him while he sleeps. This is an issue of significance, which hopefully can be resolved by the hospital and Mr. Conway. It is noted that in his evidence, Mr. Conway said he would welcome a window or portal being installed in his door or a surveillance camera with the appropriate lighting to provide the hospital access to him. Given the ongoing impasse, it might be helpful for an independent third party to provide an opinion with respect to this issue.
[4] The appellant appeals the ORB decision on two bases.
[5] First, the appellant contends that the ORB erred by finding that he poses a significant threat to public safety in the absence of positive evidence that he posed a risk of serious criminal harm. According to the appellant, if there is evidence of harm, it is a risk of trivial harm. In support of this position, the appellant pointed out that his behaviour off the hospital grounds (under supervision) is quite good.
[6] We do not accept this submission. The ORB’s decision denying the appellant an absolute discharge was reasonably supported by the evidence, including the expert opinion of the treating psychiatrist and the hospital report. The latter disclosed 122 threatening, intimidating or aggressive acts by the appellant in a six-month period. The evidence before the ORB demonstrated that the appellant continues to experience significant paranoia and that his actions and outbursts have caused serious psychological harm to the trained professionals working with him. His behaviour, combined with his lack of insight into his mental condition, continue to satisfy the significant threat threshold for detention.
[7] Second, the appellant submits that the ORB erred when it failed to direct the hospital on the sleep deprivation issue. The appellant says that the ORB’s statement that “it might be helpful for an independent third party to provide an opinion with respect to this issue” is not good enough; it is not the least onerous restriction consistent with public safety.
[8] We disagree. The hospital (and similar facilities throughout Ontario) has a sensible policy of conducting hourly bed checks of all patients for safety reasons. The policy requires “direct patient observation”. These checks are normally performed without any issue as the patient sleeps. The appellant is vigorously opposed to this practice. He does not want hospital staff entering his room while he sleeps. Accordingly, he insists on being awakened every hour which has led, as everyone acknowledges, to a serious sleep deprivation problem. In the context of this impasse, we see nothing wrong with the ORB saying that “[t]his is an issue of significance, which hopefully can be resolved by the hospital and Mr. Conway” and recommending that an independent third party provide an opinion for the parties to consider. Obviously, if the hospital ignored the recommendations, or if the appellant would not participate in such a plan, or if an independent third party’s involvement does not lead to a resolution, the issue might need to be addressed more directly by the ORB in the next annual review.
[9] The appellant and the hospital submitted fresh evidence. In our view, there is nothing in it to alter our analysis and conclusions on the two issues.
[10] At the conclusion of the hearing, but before counsel departed, an email letter from the appellant, seeking an adjournment because he did not attend the hearing, was delivered to the panel. The appellant’s counsel took no position on this late-breaking development (she had asked for the hearing to proceed when court opened an hour earlier), and the Attorney General and hospital opposed an adjournment. We see no reason for granting an adjournment and decline to do so.
[11] The appeal is dismissed.
“J.C. MacPherson J.A.”
“David Watt J.A.”
“B.W. Miller J.A.”