Court of Appeal for Ontario
Date: July 9, 2019 Docket: C66429
Panel: Doherty, MacPherson and Benotto JJ.A.
In the Matter of: Martin Conway
An Appeal Under Part XX.1 of the Criminal Code
Counsel:
- Suzan E. Fraser, for Paul Conway
- Craig Harper, for the Attorney General of Ontario
- Janice Blackburn, for the person in charge, St. Joseph's Healthcare Hamilton
Heard: July 5, 2019
On appeal against the disposition of the Ontario Review Board dated December 3, 2018.
Reasons for Decision
Background
[1] On September 28, 2018, the Hospital notified the Ontario Review Board that the appellant's liberty had been restricted. A panel was convened to conduct a review.
[2] The panel found the restriction was necessary, appropriate and the least restrictive and onerous given the significant threat that he posed.
[3] Mr. Conway appeals on the basis that the Board erred in finding that he was a threat to the safety of the public. He also alleges procedural unfairness because the Board: (i) directed the hospital to arrange an independent assessment of his capacity without giving him advance notice; (ii) refused to issue a summons so that his counsel could review certain surveillance tapes; (iii) did not provide the names of staff who claimed they were traumatized by him; and (iv) refused to deal with his Charter claims.
Background
[4] The appellant is now 66 years old. He has been under the Criminal Code forensic jurisdiction for 35 years. The index offence involved a brutal sexual assault on his aunt in 1983.
[5] Since then, he has been detained at several forensic hospitals. His detention has been marked by unmanageable behaviour, sexually inappropriate conduct, outbursts leading to property damage and threats to staff. In January 2000 he was charged but not convicted of assault and uttering death threats.
[6] The appellant denies he has a mental illness.
The Hearing
[7] Dr. Chaimowitz testified that if the appellant was discharged, he may progress well for a short period of time but then the underlying psychopathology would emerge. This would lead to physical and sexually inappropriate conduct. Dr. Prat agreed. The clinical director of the programme testified about the traumatizing effect he has on staff.
[8] The appellant sought an order requiring the hospital to produce the video surveillance tapes showing his interaction with the staff as well as the names of the staff who said they were traumatized. He also claimed his Charter rights had been violated.
[9] After a careful review of the evidence, the Board concluded that little has changed over the years in relation to his risk to the public. This is demonstrated by the need to move him away from other patients. An absolute discharge under these circumstances is not available. Nor is a conditional discharge for he cannot live in community without structure and support.
[10] The Board refused to issue a summons for the video, declined to provide names of staff and did not deal with the Charter argument since it was only raised in submissions.
Conclusion
[11] We see no error in the Board's conclusion that the restriction on his liberties was justified. The evidence overwhelmingly supported the Board's conclusion that the appellant poses a continuing risk to the public. In particular:
- His mental illness remains unacknowledged;
- Although he has not hurt anyone physically, he has threatened Dr. Prat;
- His conduct within the hospital has psychologically harmed staff;
- Dr. Chaimowitz explained that his underlying untreated psychopathology would lead to conflict with members of the public;
- The Clinical Director testified as to the traumatic effect on nursing, clinical and cleaning staff of his derogatory comments based on gender, race and culture.
[12] The Board's findings were supported on the record and are entitled to deference.
[13] We see no procedural unfairness arising from the evidentiary rulings made by the Board.
[14] The video recordings were only marginally relevant if at all and would not have had any impact on the Board's conclusion. The appellant had written summaries of the evidence of the staff members and was able to cross-examine all the witnesses. Notably, no specific unfairness is raised as to what the videos would have shown that was not detailed in the summaries.
[15] The names of the staff who were traumatized was not the issue, rather it was the substance of the verbal and physically aggressive conduct by the appellant – the details of which are set out in the Hospital Report. The Board has the discretion to allow hearsay evidence and routinely does so. To the extent that the allegations were delivered by way of hearsay, there was no procedural unfairness.
[16] The Board's order (para 3(c)) required the hospital "to arrange for an independent assessment" with respect to the appellant's capacity to consent to treatment. While the Board's supervisory role relating to medical treatment and progress entitles it to determine whether an assessment should take place, the Board is not entitled to delegate its responsibility with respect to the terms of the assessment. A hearing, on notice to the parties, should be conducted to determine the terms. (See: Re LePage 2019 ONCA 363 at para 6). Since no notice was provided para 3(c) of the order is struck.
[17] The appellant's Charter argument was raised for the first time in submissions. The submission related to his care in the hospital. He submitted that the hospital mandated that he go to the visitor's lounge with staff during his daily room cleaning. If he refused, he was placed in seclusion which violated his s. 7 and 12 rights and were not saved under s. 1.
[18] The Board found that it did not have the evidentiary base necessary to address the submission which should have been raised at the outset of the hearing. We agree with the Board. In the absence of notice to the parties and to the Board, it was not able to determine if the hospital's actions were Charter compliant.
[19] For these reasons para 3 (c) of the Board's order is struck. The appeal is otherwise dismissed.
"Doherty J.A."
"J.C. MacPherson J.A."
"M.L. Benotto J.A."