COURT OF APPEAL FOR ONTARIO

CITATION: Conway (Re), 2016 ONCA 918

DATE: 20161206

DOCKET: C62136

Laskin, Gillese and Watt JJ.A.

IN THE MATTER OF: PAUL MARTIN CONWAY

AN APPEAL UNDER PART XX.1 OF THE CODE

Paul Martin Conway, acting in person

Erin Dann, amicus curiae

Janice E. Blackburn, for the respondent the Person in Charge of St. Joseph's Healthcare Hamilton

Matthew Morley, for the respondent the Attorney General of Ontario

Heard: September 30, 2016

On appeal against the disposition of the Ontario Review Board, dated February 25, 2016.

Laskin J.A.:

A. Introduction

[1] The appellant, Paul Conway, now 63 years old, has been detained under the jurisdiction of the Ontario Review Board for over 30 years. Since mid-2011, he has been detained at St. Joseph’s Healthcare in Hamilton, most recently on its general forensic unit.

[2] At his last annual hearing in February 2016, though the Board had appointed amicus, Mr. Conway was unrepresented. He asked for an adjournment to retain counsel, but the Board denied his request, because the hearing date had been marked “peremptory”.

[3] At the hearing, St. Joseph’s sought Mr. Conway’s continued detention, but asked the Board to transfer him to another hospital, because he was unmanageable. St. Joseph’s led the evidence of two doctors to show that Mr. Conway’s behaviour had traumatized numerous staff members, none of whom were identified.

[4] The Board found that Mr. Conway’s continued detention was warranted, because he remained a significant threat to the safety of the public. But the Board refused to order his transfer to another hospital. While acknowledging that Mr. Conway remains a “prodigiously difficult patient”, the Board cited the “dramatic improvements” in his condition in the previous four months and concluded that a transfer from St. Joseph’s would be a “set-back for him”. The Board ordered that its disposition be reviewed within six months.

[5] Mr. Conway appeals the Board’s disposition. He was unrepresented on the appeal, but amicus represented his interests and made three submissions on his behalf:

(1) The Board erred by refusing Mr. Conway’s request for an adjournment because the hearing had been marked peremptory;

(2) The Board erred by relying on the hearsay evidence of two doctors about Mr. Conway’s abuse toward staff without recognizing the inherent weaknesses of their evidence; and

(3) The Board erred by failing to direct St. Joseph’s to address Mr. Conway’s sleep deprivation.

On his own behalf, Mr. Conway made one additional submission:

(4) The Board erred by refusing to grant Mr. Conway a conditional discharge.

[6] Although I would dismiss the appeal, in my view the Board erred in its approach to Mr. Conway’s adjournment request and in not specifically addressing Mr. Conway’s complaint about his sleep deprivation.

B. Brief Background

[7] The index offence that brought Mr. Conway under the jurisdiction of the Board occurred in late 1983, when he was 29 years old. On February 27, 1984, he was found “not guilty by reason of insanity” on a charge that he used a weapon while committing a sexual assault. Since then, he has been detained at various forensic hospitals in Ontario. Over the years, he has been diagnosed with an assortment of psychiatric illnesses and conditions. His current diagnosis is paranoid personality disorder and obsessive compulsive disorder.

[8] Throughout much of the time Mr. Conway has been detained, he has made little progress towards reintegrating into the community. Very recently, that has changed. In 2015, for the first time in over 30 years, Mr. Conway was allowed access privileges that included unaccompanied passes into the community, with indirect supervision. For the six months leading up to his February 2016 hearing, he exercised this access seven days a week, without incident.

[9] His treating psychiatrist testified about Mr. Conway’s significant progress. She noted that his score on the Aggressive Incidents Scale had dropped from 130 in January 2015 to zero in 2016. She observed this remarkable improvement beginning in March or April of 2015. She did acknowledge that, at times, Mr. Conway was verbally aggressive toward staff members, but said that these episodes of verbal aggression had declined significantly. In her opinion, if Mr. Conway continued to progress and “if everything went well”, he could have possibly been discharged into the community this fall. At the hearing, Mr. Conway stated unequivocally that he did not want to live in detention for the rest of his life and that he wanted to transition to living in the community.

[10] Even Dr. Chaimowitz, the head of service for St Joseph’s forensic psychiatry program, admitted that Mr. Conway had done “exceptionally well” and that Mr. Conway could possibly live in the community and cause nothing more than trivial annoyances to others. Still, Dr. Chaimowitz advocated for Mr. Conway’s transfer to another hospital, because St. Joseph’s was “at the end of our tether in terms of the ability to manage Mr. Conway without ongoing significant harm to our staff”. He added, “it’s somebody else’s turn and we need to re-look at the sort of damage that has been done to our staff…”.

[11] Against this background, I turn to the three issues on appeal.

C. The Issues

(1) Did the Board err by refusing Mr. Conway’s request for an adjournment because the hearing had been marked peremptory?

(a) Overview

[12] By the time Mr. Conway’s annual review came up for hearing on February 18, 2016, it had already been adjourned twice. Mr. Conway sought a third adjournment to give him more time to retain counsel to represent him at the hearing. The Board refused his request, because at the pre-hearing conference to schedule the February date, the Board had designated the date as “peremptory on all parties”.

[13] Amicus submits that the Board erred in principle in refusing an adjournment simply because the hearing date was peremptory. She argues that the Board still had discretion to grant an adjournment, if it was “in the interests of justice” to do so. In addition to taking into account the peremptory designation, the Board ought to have taken account of other considerations, especially any prejudice to Mr. Conway from refusing his request.

[14] Having made this submission, amicus candidly acknowledged that in practical terms, the issue was moot. Even if successful, the only relief Mr. Conway could obtain would be a new hearing. And because of the Board’s disposition, he will have a new hearing very soon. Still, amicus urged us to address this issue, because of its implication for future Board hearings. I have decided to do so.

[15] I need not decide whether the Board erred in its decision to refuse an adjournment. But I agree with amicus that the Board erred in its approach. The “peremptory” designation did not exhaust the Board’s discretion or preclude it from granting an adjournment should the interests of justice have required one. Before discussing my conclusion, I will briefly outline the context in which Mr. Conway requested an adjournment.

(b) Procedural history

[16] Mr. Conway’s 2014 annual review took place in November of that year. His 2015 annual review was scheduled for October 16, 2015, but was adjourned on consent to January 11, 2016. That was the first adjournment.

[17] Mr. Conway then told his psychiatrist that he intended to ask for an adjournment of the January 11, 2016 date, because he wanted to retain counsel. The Board held a pre-hearing conference on January 6, 2016, at which Mr. Conway reiterated his request for an adjournment. St. Joseph’s opposed his request. Because of the disagreement, the Board Chair referred the question of an adjournment to the full panel on January 11, 2016. The panel granted an adjournment for two reasons: the hearing was unlikely to be completed in the time set aside for it; and the Board did not want to go ahead unless Mr. Conway had counsel or the Board appointed an amicus. This adjournment was the second adjournment. A day later, this court dismissed Mr. Conway’s appeal from his 2014 disposition.

[18] On January 28, 2016, the Board held another pre-hearing conference, by telephone, to schedule a new date for Mr. Conway’s annual review. Mr. Conway participated on the call for only a few minutes. In his absence, the Board Chair conducting the pre-hearing conference ordered that the hearing would proceed on February 18, 2016 and that this date would be “peremptory on all parties”. The Board Chair added that if Mr. Conway wanted to retain counsel, “any counsel he retains between today’s date and February 18 must be available and prepared to proceed on February 18.” Finally, the Board Chair appointed an amicus to assist it, even though Mr. Conway had refused to speak to him.

[19] On February 9, 2016, nine days before the fixed hearing date, Mr. Conway wrote to the Board. He said two things in his letter: he was experiencing an extended period of sleep deprivation, and he was trying to retain counsel, but he had so far been unsuccessful.

[20] On the hearing date itself, February 18, 2016, Mr. Conway appeared before the Board and presented a letter in which he asked that the hearing be adjourned to allow him enough time to retain a lawyer. Mr. Conway also presented a letter from the lawyer who had argued his appeal in January, which stated that she was not available to assist him until April. He opposed the appointment of amicus. On the substantive issues before the Board, Mr. Conway noted a divergence between the position of St. Joseph’s and his clinical treatment team on whether he should be transferred to another hospital.

[21] The Board denied Mr. Conway’s request for an adjournment. At the hearing, the Board Chair said: “Well we are proceeding. It’s peremptory today. It means it must go on today…we have no option except to proceed.” In its reasons released about two and a half weeks later, the Board noted: “The Board explained to Mr. Conway that the matter was peremptory and would be proceeding.”

[22] Mr. Conway remained in the room for most of the hearing – he left before final submissions – but while there he did not fully participate, because he did not want to jeopardize a future challenge to the proceedings.

(c) Analysis

[23] In deciding whether grant or refuse a request for an adjournment, the Board must take into the account the interests of the not criminally responsible (NCR) accused, the interests of the hospital, and its own statutory mandate to hold timely hearings. Because its decision is discretionary, it attracts significant deference from an appellate court. But an appellate court may justifiably interfere if the Board errs in principle, or exercises its discretion unreasonably. So, for example, an appellate court may intervene if the Board’s denial of an adjournment deprives an NCR accused of a fair hearing and thus is contrary to the interests of justice: see Khimji v. Dhanani (2004), 2004 CanLII 12037 (ON CA), 69 O.R. (3d) 790 (C.A.), at para. 14.

[24] In the case before us, the Board denied Mr. Conway’s request for an adjournment to retain counsel for the sole reason that the hearing date had been designated peremptory. Refusing an adjournment for that reason alone amounted to an error in principle. Although the dictionary definition of peremptory – irreversible, binding, conclusive – suggests that a hearing marked “peremptory” must proceed, our court, sensibly, has held otherwise. In Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, 96 O.R. (3d) 138, at para. 43, Weiler J.A. wrote:

One of the purposes of making a hearing date peremptory is to further the public interest in the administration of justice by preventing delay and wasted costs. However, judicial discretion must still be exercised depending on the facts and circumstances of each case, as the overarching purpose of marking a date peremptory is to serve the interests of justice. [Footnotes omitted.]

[25] In other words, peremptory in this context does not mean mandatory. It does not remove the Board’s discretion. Although the peremptory designation will be an important consideration in the Board’s decision, the Board must still exercise its discretion by taking into account other relevant considerations, especially any prejudice to the NCR accused from refusing an adjournment.

[26] Without attempting a complete list, the following considerations ought to have had a bearing on the Board’s decision whether to grant Mr. Conway’s request for an adjournment.

• Had there been previous adjournments and previous “peremptory” designations? The hearing had already been adjourned twice before, but neither previous date had been marked peremptory.

• What was the reason for Mr. Conway’s adjournment request? Mr. Conway sought an adjournment to retain counsel. Under s. 672.5(7) of the Criminal Code, he had the right to be represented by counsel at his annual review.

• Was amicus an adequate substitute for Mr. Conway’s own counsel? As Mr. Conway did not have counsel, the Board, acting under s. 672.5(8) of the Criminal Code, appointed amicus to act for him: see R. v. LePage (2006), 2006 CanLII 37775 (ON CA), 217 O.A.C. 82. The Board should have assessed whether amicus was an adequate substitute for Mr. Conway’s own counsel.

• Had Mr. Conway made attempts to retain counsel? Mr. Conway had made some attempts, though not exhaustive attempts, to obtain counsel for the February 18, 2016 hearing. His counsel of choice, who had represented him on his appeal, was available in April, two months from the scheduled hearing date.

• What were the consequences of the hearing for Mr. Conway and the potential prejudice to him? Mr. Conway was potentially prejudiced by having to proceed without his own counsel. He was facing a possible significant change to his disposition, a transfer to another hospital; and he was facing the evidence of two doctors who would be trying to demonstrate the significant harm he had caused to members of the hospital’s staff.

• Would St. Joseph’s be prejudiced by an adjournment? The record did not establish that St. Joseph’s would be prejudiced by an adjournment of a few months.

• Was Mr. Conway trying to “manipulate the system”? There was no evidence in the record that by seeking a third adjournment Mr. Conway was “trying to manipulate the system”.

• Would another adjournment affect the Board’s statutory mandate to hold a timely annual review? Under s. 672.81(1) of the Criminal Code, the Board is required to hold an annual review of an accused’s disposition within 12 months of its previous disposition. As the Board’s previous disposition for Mr. Conway was in November 2014, the February 18, 2016 hearing date was already 15 months after its previous disposition. However, both the Criminal Code and the Board’s own rules enable the Board to grant adjournments. Under s. 672.81(1.1), where the accused is represented by counsel and the accused and the Attorney General consent, the Board has the power to extend the time for holding a hearing to a maximum of 24 months. Under Rule 32 of its Rules, the Board can grant adjournments in furtherance of its power to control its own proceedings.

[27] After balancing these considerations, the Board would have had to decide whether it should grant Mr. Conway’s adjournment request. Had the Board exercised its discretion by taking into account these considerations, in this case this court would undoubtedly have had no basis to second guess its decision. As the Board considered only the “peremptory” designation, however, it would have been open to this court to set aside the Board’s refusal of an adjournment. However, as I said at the outset, in practical terms, the Board’s refusal is moot. For that reason I would not give effect to this ground of appeal.

(2) Did the Board err in relying on the hearsay evidence given by Dr. Chaimowitz and Dr. Cividino without recognizing the inherent weaknesses of their evidence?

[28] To support its case that Mr. Conway ought to be transferred to another institution, St. Joseph’s led evidence from Dr. Chaimowitz and Dr. Cividino. Their evidence summarized the ongoing abuse and trauma Mr. Conway had inflicted on numerous members of the staff.

[29] Dr. Chaimowitz outlined the various incidents of abuse in the hospital report. Dr. Cividino, an occupational medicine physician at St. Joseph’s, summarized the complaints of four experienced staff, who had sought medical assistance after suffering psychologically and emotionally from Mr. Conway’s ongoing harassing behaviour towards them. All of this evidence was hearsay, and none of the members of the staff was identified by name.

[30] Amicus accepts that the Board is entitled to receive and act on hearsay evidence, but submits that the Board ought to scrutinize this hearsay evidence with greater care. She contends that the Board ought to have recognized the evidence’s inherent weaknesses. She points out that as no staff member had been identified by name, Mr. Conway could not effectively challenge this evidence. I would not give effect to this submission.

[31] The Board has wide latitude to receive hearsay evidence, in part because its proceedings are more inquisitorial than adversarial. See Ranieri (Re), 2015 ONCA 444, 336 O.A.C. 88, at para. 16. Indeed, hospital reports, which are prescribed in Rule 19 of the Board’s rules, typically contain a good deal of hearsay, as they detail the various incidents in an accused’s life while detained. Thus, the Board must rely on hearsay evidence to do its job effectively. Of course, depending on the nature of the hearsay and its relevance to the matters in issue, some hearsay evidence will require greater scrutiny before the Board can accept it.

[32] In the present case, the short answer to amicus’ submission is that on the central issue before the Board – whether Mr. Conway should be transferred to another hospital – the Board did not act on the hearsay evidence of either doctor. St. Joseph’s led this evidence to support a transfer. The Board concluded that the impact of this evidence was outweighed by the dramatic improvements in Mr. Conway’s condition while at St. Joseph’s. The Board therefore ordered that he remain at St. Joseph’s. Thus, I would not give effect to this ground of appeal.

(3) Did the Board err in failing to direct St. Joseph’s to address Mr. Conway’s sleep deprivation?

[33] The background to this issue is the following. St. Joseph’s, like many other hospitals in Ontario, has a policy of hourly checks on a patient during the night. The policy is rooted in patient safety. Most patients are not disturbed by the hourly checks, as they are asleep. But Mr. Conway insists on being awakened, because he does not like people coming into his room without his knowing it. His insistence on being awoken has caused him significant sleep deprivation. St. Joseph’s respirologist admitted that sleep is an important factor in a person’s mood and functioning.

[34] The question of how best to address Mr. Conway’s sleep deprivation has been simmering for some time. Possible solutions have included installing a window in the door to Mr. Conway’s room, installing a camera in his room to monitor him, or at least obtaining the advice of an independent expert. In its 2014 disposition, the Board recognized that Mr. Conway’s lack of sleep was an “issue of significance” and noted that “given the ongoing impasse, it might be helpful for an independent third party to provide an opinion with respect to this issue.”

[35] Mr. Conway appealed his 2014 disposition to this court. The panel addressed the sleep deprivation issue in its endorsement: 2016 ONCA 36, [2016] O.J. No. 220, at para. 8. The panel saw “nothing wrong” with the way the Board had dealt with the issue, but added:

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.

[36] In the light of this court’s endorsement, at the February 2016 hearing, the Board Chair asked Dr. Chaimowitz about Mr. Conway’s sleep deprivation. The doctor said that Mr. Conway was still being woken up hourly. In response to whether there was “any other way you can handle that issue”, Dr. Chaimowitz said only that “we’ve looked at all the options that are here.” He did not elaborate, and he was not asked to do so. And he did not say if, or why, St. Joseph’s had ruled out installing a window in the door, or a camera to monitor Mr. Conway’s sleep. He did not say whether St. Joseph’s had obtained an outside opinion. Although the Board Chair noted at the hearing that “the Court of Appeal more or less told us to direct our attention to it”, in its reasons for disposition, the Board did not even address Mr. Conway’s sleep deprivation.

[37] Because of this background, amicus submits, with some justification, that the Board erred in the way it addressed Mr. Conway’s sleep deprivation.

[38] The issue is a difficult one for the Board. On the one hand, review boards cannot be expected to micro-manage the day-to-day operations of hospitals: see R. v. Petroniuk, 2014 ONSC 6951, 322 C.R.R. (2d) 276, at para. 20. On the other hand, the Board’s obligation to fashion “the necessary and appropriate disposition” includes taking account of the package of conditions under which an NCR accused is detained.

[39] Given the history of this issue and this court’s 2015 endorsement, the Board was obliged to explore what St. Joseph’s has done to address Mr. Conway’s sleep problem in more detail than it did at the February 2016 hearing. St. Joseph’s may well have canvassed the alternatives for Mr. Conway, including obtaining an outside opinion, and concluded it had no alternative but to continue an hourly bed check. But it is not readily apparent from Dr. Chaimowitz’s testimony that St. Joseph’s has done so.

[40] As Mr. Conway has an upcoming review very soon, I would not make the order amicus seeks. But I would urge the Board to explore the issue of Mr. Conway’s sleep deprivation, and if St. Joseph’s has not already done so, direct it to obtain an independent opinion. With that qualification, I would not give effect to this ground of appeal.

(4) Did the Board err in refusing to grant Mr. Conway a conditional discharge?

[41] Mr. Conway submits that there was no evidence before the Board to suggest that the risk he poses could not be managed in the community and thus the Board should have granted him a conditional discharge. He took no position before the Board, so understandably the Board did not expressly address whether he was entitled to a conditional discharge. But from reading the Board’s detention order and reasons, it is obvious that if he had asked for a conditional discharge, the Board would have rejected it. We have been given no basis to grant that relief on appeal.

D. Conclusion

[42] I would dismiss Mr. Conway’s appeal.

Released: December 6, 2016 (“J.L.”)

“John Laskin J.A.”

“I agree. E.E. Gillese J.A.”

“I agree. David Watt J.A.”