



COURT OF APPEAL FOR ONTARIO

CITATION: Conway (Re), 2019 ONCA 583

DATE: 20190709

DOCKET: C66429

Doherty, MacPherson and Benotto JJ.A.

IN THE MATTER OF:  Martin Conway

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for Paul Conway

Craig Harper, for the Attorney General of Ontario

Janice Blackburn, for the person in charge, St.
    Josephs Healthcare Hamilton

Heard: July 5, 2019

On appeal against the disposition of the Ontario Review
    Board dated, December 3, 2018.

REASONS FOR DECISION

[1]

On September 28, 2018, the Hospital notified the
    Ontario Review Board that the appellants 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 Boards conclusion that
    the restriction on his liberties was justified. The evidence overwhelming
    supported the Boards 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 Boards 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 Boards 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 Boards order (para 3(c)) required the
    hospital to arrange for an independent assessment with respect to the
    appellants capacity to consent to treatment. While the Boards 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 appellants
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
    visitors 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
    hospitals actions were
Charter
compliant.

[19]

For these reasons para 3 (c) of the Boards
    order is struck. The appeal is otherwise dismissed.

Doherty
    J.A.

J.C.
    MacPherson J.A.

M.L.
    Benotto J.A.


