Court of Appeal for Ontario

Date: 2018-01-25 Docket: C62811

Judges: Hoy A.C.J.O., MacPherson and Rouleau JJ.A.

In the Matter of Denis Lucien LePage

An Appeal Under Part XX.1 of the Criminal Code

Counsel:

• Suzan E. Fraser, for the appellant
• Christine Tier, for the respondent
• Janice Blackburn, for the Person in Charge, Waypoint Centre for Mental Health Care

Heard and released orally: January 25, 2018

On appeal against: The disposition of the Ontario Review Board dated September 21, 2016.

Reasons for Decision

[1] The appellant, Denis LePage, appeals from a disposition of the Ontario Review Board dated September 21, 2016 (the "Disposition"). He is present and is represented by counsel today. The Disposition ordered that the appellant continue to be detained at the maximum security facility at Waypoint Centre for Mental Health Care.

[2] It is clear there was a regrettable misunderstanding at the hearing before the Board leading to the disposition. The appellant has been under the auspices of the Board since 1978 and, consistent with his practice for many years, did not attend the hearing. The Board thought that Alvin Pollard was acting as counsel for the appellant and excused the appellant from attending his hearing. The Board also thought that Mr. Pollard consented on behalf of the appellant, as his counsel, to the recommendation of the Hospital and the Crown that the appellant remain detained in the Hospital's maximum security facility. However, Mr. Pollard understood he was amicus and did not appreciate the significance of the questions posed by the Board that led it to mistakenly conclude that he consented on behalf of the appellant, as his counsel, to the Hospital and the Crown's recommendation. This misunderstanding is made clear in the fresh evidence, which is adduced on consent.

[3] We agree with the appellant that this unfortunate misunderstanding resulted in a miscarriage of justice. While perhaps likely, it is necessarily speculative that had the Board understood Mr. Pollard was amicus and did not consent to the recommendation of the Hospital and the Crown on behalf of the appellant, as his counsel, the Board would have proceeded with the disposition hearing in the appellant's absence and reached the same disposition. In addition, we note that the effect of the misunderstanding was to nullify the appellant's intended protest, through non-attendance, of the review process.

[4] In its factum, the appellant sought an order for an independent assessment at a medium security facility. However, the parties have since agreed that at the appellant's 2018 Board hearing, the Board should order an assessment at a different hospital and are in the process of discussing the terms of such an order.

[5] The further order sought by the appellant in his factum, directing the Board to provide remedial training to the Board members about the role of counsel, is not warranted in this case of mutual misunderstanding. We do agree, however, with the appellant and the Hospital that this appeal demonstrates that it would be advisable for the Board to review its practices for the appointment of counsel and amicus. Further, in our view, the Board should confirm at the outset of each hearing whether counsel appears as counsel for the appellant or amicus to avoid future misunderstandings.

[6] Accordingly, the appeal is allowed, the Disposition is set aside, the matter is referred back to the Board under s. 672.78(3)(b) of the Criminal Code, and the Board is directed that Mr. Pollard shall not serve as either amicus or counsel in respect of the appellant. This last relief is not opposed.

"Alexandra Hoy A.C.J.O."

"J.C. MacPherson J.A."

"Paul Rouleau J.A."