



COURT OF APPEAL FOR ONTARIO

CITATION: Conway (Re), 2018 ONCA 139

DATE: 20180214

DOCKET: C63120

Rouleau, Watt and Brown JJ.A.

IN THE MATTER OF:  Paul Conway

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser and Sarah Harland-Logan, for the
    appellant, Paul Conway

Avene Derwa, for the respondent, Her Majesty the Queen
    (Ontario)

Janice Blackburn, for the respondent, the Person in
    Charge of the St. Josephs Healthcare Hamilton

Heard: January 12, 2018

On appeal against the disposition of the Ontario Review
    Board dated, November 14, 2016.

REASONS FOR DECISION


I.

OVERVIEW

[1]

The appellant, Paul Conway, appeals from the
    November 14, 2016 disposition (the Disposition) of the Ontario Review Board
    (the Board). The Disposition continued Mr. Conways detention at a General
    Forensic Unit of St. Josephs Healthcare Hamilton (the Hospital), as well as
    the set of conditions contained in its previous February 25, 2016 disposition
    (the February 2016 Disposition). The Board refused the Hospitals request to
    transfer Mr. Conway to another institution.

[2]

Mr. Conway does not take issue with the Boards
    finding that he remains a significant threat to the safety of the public, nor
    with its rejection of his request for an absolute or conditional discharge. Nor
    does he dispute the Boards continuation of the conditions contained in its
    February 2016 Disposition.

[3]

Instead, Mr. Conway raises two issues: (i) the
    Board erred in refusing to grant him a second adjournment of the review hearing
    and dismissing his document disclosure motion; and (ii) the Board erred in
    failing to find that the Hospitals March 2016 reduction of his privileges and
    subsequent implementation of a behaviour intervention plan infringed his rights
    under ss. 7 and 9 of the
Canadian Charter of Rights and Freedoms
.

[4]

For the reasons set out below, we dismiss his
    appeal.


II.

BACKGROUND FACTS

[5]

Mr. Conway has been detained under the Boards jurisdiction for over 30
    years. His history was summarized in this courts decision dismissing his
    appeal from the February 2016 Disposition:
Conway (Re)
, 2016 ONCA 918
    (
Conway
2016). We need not repeat it.

[6]

The hearing held by the Board in November 2016 was not an annual review.
    In its reasons for the February 2016 Disposition, the Board described Mr.
    Conway as a prodigiously difficult patient. It observed that the imminence of
    a Board hearing seemed to improve Mr. Conways behaviour, offering a measure of
    protection for Hospital staff and his co-patients. In the hope that
    improvements in his behaviour would continue, the Board ordered a six-month
    review of Mr. Conways detention. Originally scheduled for July 2016, the
    six-month review ultimately was heard in November 2016, which resulted in the
    Disposition under appeal.

[7]

Mr. Conways next review hearing currently is scheduled for April, 2018.

III.

FRESH EVIDENCE

[8]

Both Mr. Conway and the Hospital filed motions for leave to adduce fresh
    evidence. In his fresh evidence affidavit, Mr. Conway describes events on his
    unit from the date of the Disposition until August, 2017. In its affidavit, the
    Hospital describes: (i) the behaviour intervention plans in place at the time
    of the Disposition; (ii) some events involving Mr. Conway that took place on
    the unit in 2017; and (iii) the Hospitals community reintegration plan for Mr.
    Conway that it plans to place before the Board at the April 2018 annual review.

[9]

No objection was taken to the admission of the fresh evidence.
    Accordingly, given the more relaxed approach taken to fresh evidence about
    events taking place after the disposition under appeal, we grant leave to both
    parties to file their fresh evidence.

IV.

FIRST ISSUE: DID THE BOARD ERR IN REFUSING TO GRANT A SECOND ADJOURNMENT
    OF THE HEARING AND IN DISMISSING THE APPELLANTS PRODUCTION MOTION?

A.

The issue stated

[10]

The
    Board initially scheduled Mr. Conways six-month hearing for July 2016. Mr.
    Conway sought an adjournment so that he could retain counsel. The Board granted
    his request.

[11]

On
    November 8, 2016, the day before the re-scheduled hearing, Mr. Conway filed a
    motion seeking a further adjournment. The Board heard the adjournment motion
    the following day at the start of the hearing.

[12]

Mr.
    Conway submitted that adjourning the six-month review hearing until this court
    released its decision on his appeal from the February, 2016
disposition
[1]
would enable the
    Board to receive guidance on how the Hospital should perform periodic night
    checks without interrupting his sleep. As well, he sought disclosure from the
    Hospital of all documents in its possession that are not already in the
    clinical record relating to the exercise of the authority delegated by the
    Board to the Person-in-Charge. Mr. Conway contended that administrative
    documents involving directions to Hospital staff about his care should be
    produced prior to the hearing because he was entitled to know the basis upon
    which the Person-in-Charge was exercising his delegated authority.

[13]

The
    Board refused Mr. Conways requests for an adjournment and production. Mr.
    Conway submits the Board erred in so doing.

B.

Analysis

[14]

In
    explaining why it refused Mr. Conways request for a second adjournment, the
    Board stated:

The background to this request is important. The hospital has
    been asking for a transfer since October 2015, and the Board has yet to decide
    the issue. Mr. Conways annual hearing in January 2016 was adjourned, and in
    February 2016 the ORB panel decided against a transfer at that time but ordered
    a 6-month review. That review was scheduled for July 21, 2016 and adjourned so
    Mr. Conway could retain counsel. Since then, there have been multiple
    [Pre-Hearing Conferences (PHC)] and all parties, including [Mr. Conways
    counsel], confirmed their readiness to proceed at the final PHC on November 3,
    2016. Meantime, Mr. Conways appeal was scheduled for September 7
th
,
    but adjourned before being heard on September 30
th
.

Though the Board would prefer to have the OCAs reasons before
    conducting this hearing, there are other factors to consider. First, the
    hospital has been seeking a transfer for more than a year. Second, Mr. Conway
    has had limited privileges since early March 2016, and the hospital seeks a
    change in his disposition as well as transfer to another forensic hospital. In
    these circumstances, adjourning the matter does not serve the interests of
    either the hospital or Mr. Conway. A fresh disposition is necessary to achieve
    closure on the events of recent months and determine whether Mr. Conway will
    remain at St. Josephs, transfer to Southwest Centre, or be granted a form of
    discharge, as he asks. It is also worth noting that the February 2016 hearing
    was marked as peremptory; an adjournment was granted in July on condition that
    the next hearing date would be peremptory; and the PHC Report recorded the
    understanding of the parties that the date for this hearing was peremptory
    (November 1, 2016). Should it be necessary, a hearing can be called and a new
    Board empanelled to deal with any matters arising from the OCAs decision. To
    assume inconsistency between the OCA and the outcome at this hearing is
    speculative and does not warrant an adjournment.

[15]

The
    Boards reasons disclose it reasonably exercised its discretion in refusing Mr.
    Conways second adjournment request. As required by the framework set down by this
    court in
Conway 2016
, at para. 23, the Board balanced the interests of
    Mr. Conway and the Hospital, considered its statutory mandate to hold timely
    hearings  in this case a six-month review  and assessed the fairness to Mr.
    Conway of going ahead with the hearing. As well, the Board addressed Mr.
    Conways concern about his outstanding appeal from the February 2016
    Disposition by indicating it would be open to convening a new panel after this
    court released its reasons, should the need arise. Consequently, we see no
    error in the Boards refusal of the adjournment request.

The production request

[16]

The
    Board also dismissed Mr. Conways motion for the pre-hearing disclosure of
    Hospital administrative documents and correspondence, stating:

Mr. Conway is mistrustful of the hospital and is concerned that
    his clinical file lacks transparency on issues concerning his care since the
    last ORB hearing. The Board decided against a disclosure order for four
    reasons. First, when the issue was raised at the PHC, [Hospital counsel]
    undertook to determine whether an administrative file existed, and [Mr.
    Conways counsel] accepted his advice that there is no such file Second, apart
    from the Progress Note and Dr. Chaimowitzs July 22 email to the ORB, there are
    scant grounds for concluding that relevant evidence exists and requires an
    order to disclose. Third, the Board is mindful that the hearing not be treated
    as a dispute between Mr. Conway and hospital administration; the analogy to
Stinchcombe
is less relevant for that reason. And, as [Crown counsel] indicated, the Board
    can seek further evidence (though it does not have the same role on Charter
    claims;
R. v. Starz
(2015), 125 O.R. (3d) 663, para. 122). Fourth, a
    disclosure order would require an adjournment, which the Board is reluctant to
    grant.

[17]

This was not the first time Mr. Conway had
    sought an order requiring production of all documents in a hospitals possession,
    including emails relating to his care. Mr. Conway advanced a similar request at
    his 2011 review hearing. The Board rejected the request. This court found no
    error in the Boards refusal, holding that Mr. Conway had received extensive
    disclosure of records relating to his care, including a complete package of
    hospital progress notes, and could not identify any document that might assist
    at the hearing:
Conway (Re)
, 2012 ONCA 519, 11 O.R. (3d) 605, at para.
    11.

[18]

The same result holds true on this appeal. The
    Boards pre-hearing conference process canvassed at some length whether
    documents sought by Mr. Conway existed. We see nothing unreasonable in the
    Boards finding that there were scant grounds to conclude relevant evidence
    existed in addition to the extensive disclosure already made to Mr. Conway. 
    Further, the Board recognized its review proceedings are inquisitorial in
    nature, as a result of which it could take steps to obtain evidence should it
    become aware of gaps in relevant information.

[19]

Mr. Conway advances a further argument based on
    ss. 672.51(1) and (2) of the
Criminal Code
. Those
    sections require the Board to provide copies to all parties of disclosure
    information, which includes written information before the  Review Board
    about the accused that is relevant to making or reviewing a disposition. One
    of the issues before the Board at the November hearing concerned the fairness
    and lawfulness of the Hospitals March 2016 reduction of Mr. Conways
    privileges. Mr. Conway submits, on the authority of a footnote comment in
M.L.C.
    v. Ontario (Review Board)
, 2010 ONCA 843, at para. 33, fn. 2, that any
    direction by a hospital to change a patients liberty within the envelope of existing
    disposition conditions is deemed by s. 672.56(1) to be a disposition made by
    the Board. It therefore follows, according to Mr. Conway, that any written
    information concerning such a change constitutes disposition information
    within the meaning of s. 672.51(1), which must be disclosed to the NCR accused
    prior to a review hearing.

[20]

It is unnecessary to offer any definitive view
    on this submission. As s. 672.51(1) makes clear, disposition information
    means the assessment report and any other written information before the court
    of Review Board about the accused that is
relevant
to making or reviewing a disposition. [Emphasis added] Prior to
    the hearing, Mr. Conway received an extensive Hospital Record, which contained
    information about the reduction of privileges issue in both the Nursing Report
    and the Clinical Risk Assessment. Requests for additional disclosure were
    canvassed during the numerous Pre-Hearing Conferences. The Board concluded that
    apart from the Progress Note and Dr. Chaimowitzs July 22 email to the ORB,
    there were scant grounds for concluding that relevant evidence exists and
    requires an order to disclose.  Mr. Conway has not offered any evidence-based
    reason to call into question the reasonableness of the Boards conclusion that no
    other relevant evidence existed.

[21]

In those circumstances, the Board did not err in
    refusing to order further disclosure. Nor do we see any unfairness resulting
    from the Boards refusal of Mr. Conways production request.

Summary

[22]

We
    see no reversible errors in the Boards refusals of Mr. Conways adjournment
    and production requests. The Boards decisions were based on reasonable
    considerations of proper factors to ensure a fair hearing.


V.

THE BOARDS REFUSAL TO FIND ALLEGED
CHARTER
VIOLATIONS

A.

Background

[23]

Mr.
    Conway filed with the Board a Notice of Constitutional Question in which he asked
    the Board to find that the Hospital had infringed his rights under ss. 7, 8, 9
    and 15 of the
Charter
by reason of the following conduct: (i) putting
    his privileges on hold on March 10, 2016; (ii) requiring him to remain outside
    his room while cleaned by staff; and (iii) assigning two staff members to
    escort him to move around the Hospital.

[24]

By
    way of background, in early 2016 Mr. Conway was detained on the General
    Forensic Unit. He was exercising Level 4 privileges  indirectly supervised
    hospital and grounds privileges and indirectly supervised community privileges
    in designated areas. He was using indirectly supervised community passes for a
    few hours at a time, several times a week.

[25]

On
    March 10, 2016, the Hospital withdrew his privileges upon learning of incidents
    involving Mr. Conways aggressive conduct toward cleaning staff, both at the
    Hospital and in the community. As a result, Mr. Conway was restricted to the
    unit.

[26]

Escorted
    hospital grounds (Level 2) privileges were offered to Mr. Conway by early
    April, 2016, but he refused to leave his unit for five months following the
    withdrawal of privileges. In August, 2016, Mr. Conway finally started to use
    the Level 2 privileges.

[27]

After
    the March 2016 incidents, the Hospital put in place a plan for interactions
    between Mr. Conway and his care team. At the hearing it was called a care
    plan; the Hospitals fresh evidence describes it as a behavior intervention
    plan. The plan includes a requirement that two staff escort Mr. Conway when he
    leaves his room and be present for all communications with staff. A separate
    plan for the daily cleaning of Mr. Conways room requires him to remain in the
    visitors lounge while staff clean his room.

[28]

In
    his Notice of Constitutional Question, Mr. Conway advanced a two-pronged
Charter
argument. First, he contended the Hospitals March 2016 withdrawal of his Level
    4 privileges violated his s. 7 rights because the withdrawal lacked due
    process, consisting of the Hospitals failure to (i) inform him of the reason
    for the withdrawal, (ii) afford him an opportunity to respond to the
    allegations made against him, and (iii) report the withdrawal to the Board as a
    significant increase of the restrictions on his liberty pursuant to s.
    672.56(2) of the
Criminal Code.

[29]

Second,
    Mr. Conway argued the Hospitals care or behavior intervention plan infringed
    his ss. 7 and 9
Charter
rights by (i) requiring a 2:1 staff escort
    ratio, (ii) implementing a zero tolerance policy towards his misconduct, and
    (iii) requiring his absence from his room during its cleaning.

B.

The Boards reasons

[30]

The
    Board is entitled to decide constitutional questions, including
Charter
questions, which arise in the course of its proceedings:
R. v. Conway
,
    2010 SCC 22, [2010] 1 S.C.R. 765, at para. 84. It has the power to make
    findings as to whether an appellants
Charter
rights have been
    breached:
Starz (Re)
, 2015 ONCA 318, at para. 104.

[31]

The
    Board considered the allegations particularized in Mr. Conways Notice of
    Constitutional Question. It was not prepared to find that the withdrawal of Mr.
    Conways privileges was a significant increase of the restrictions on his
    liberty within the meaning of s. 672.56(2). The Board went on to find that the
    Hospital did not violate Mr. Conways
Charter
rights stating, at
    paras. 93 and 94:

The Board finds that the hospital did not violate standards of
    fairness and that Mr. Conway is not entitled to a remedy. The panel observes
    that the hospitals zero tolerance policy was harsh, and notes that the
    hospital could have been more transparent with Mr. Conway about the
    investigation and its outcome. Whether doing so might have promoted a positive
    therapeutic response or improvement in Mr. Conways behavior is difficult to
    know; throughout this period Mr. Conway refused to meet with his psychiatrist,
    Dr. Prat, and refused to leave the unit for almost 5 months, until August. And
    more recently, the hospital could have reviewed the 2:1 staff escort
    requirement once Mr. Conways behavior became more acceptable, in September and
    October. Even so and in all the circumstances, the Board finds it difficult to
    fault the hospital for the steps it took in dealing with Mr. Conways escalated
    behavior, harsh as those steps were.

Otherwise, Ms. Fraser abandoned her claim under s. 8 of the
    Charter, and the Board does not comment further on ss. 9 and 15 of the Charter,
    except to state that the evidence at the hearing does not support a finding of
    race discrimination  either direct or systemic in nature  against Mr. Conway.

C.

Analysis

[32]

Mr.
    Conway submits that in reaching those conclusions, the Board fettered its
    discretion such that it erred in law. He contends the Board declined to
    exercise its oversight function to ensure the Hospital treated him fairly.

[33]

We
    do not agree.

The alleged lack of due process

[34]

The
    record does not support Mr. Conways submission that the Hospital failed to
    inform him of the reason for the withdrawal of his privileges or afford him an
    opportunity to discuss the allegations. Dr. Prat, the treating psychiatrist,
    and a staff member, Ms. O'Connell, met with Mr. Conway to inform him that complaints
    from the housekeeping staff had led to the withdrawal of his privileges. They
    told him the allegations were being investigated and he should be patient.
    Initially, Mr. Conway was calm. However, after a few days his behaviour became
    significantly disruptive, threatening, and out of control. For the next five
    months, Mr. Conway rebuffed efforts by Dr. Prat to discuss the issue and how he
    could restore his privileges.

[35]

Mr.
    Conway also contends the withdrawal of his privileges lacked due process because
    the Hospital did not give a restriction of liberty notice to the Board. Sections
    672.56(2) and 672.81(2.1) of the
Criminal Code
are procedural
    provisions. Where a significant increase in the restrictions on a NCR accuseds
    liberty occurs and remains in force for more than seven days, a hospital must
    give notice to the Board: s. 672.56(2)(b). The Board then is required to hold
    as soon as practicable a hearing to review the decision that significantly
    increased the restrictions on liberty: s. 672.81(2.1). Combined, the sections
    provide a mechanism by which to obtain a timely Board review of any significant
    increase of liberty restrictions.

[36]

The
    procedural history of this proceeding makes it unnecessary to decide the
    appellants submission that the Board erred in finding that the March 2016
    withdrawal of privileges did not amount to a significant increase of the
    restrictions on Mr. Conways liberty within the meaning of s. 672.56(2). Assuming,
    without deciding, that the Hospital should have notified the Board about the
    withdrawal of Mr. Conways privileges in March 2016, for two reasons we see no
    resulting prejudice to Mr. Conway in the specific circumstances of this case.

[37]

First,
    the issue of the Hospitals reduction of Mr. Conways privileges was fully
    argued before the Board at the November hearing. Both the Hospital and Mr.
    Conway called evidence on the issue. The Board considered that evidence,
    together with the parties submissions, and addressed the issue in its reasons.

[38]

Second,
    it must be recalled that the November hearing originally was scheduled to be
    held in July 2016, only a few months after the reduction of privileges. It was
    adjourned at Mr. Conways request.

[39]

When
    those circumstances are considered, we are not persuaded that Mr. Conway
    suffered any procedural or substantive prejudice from the timing of the Boards
    ultimate consideration of the reduction of privileges issue at the November
    hearing.

The Hospitals care plan

[40]

Turning
    to Mr. Conways allegations concerning the Hospitals care plan, in our view it
    was reasonable for the Board to conclude that the Hospitals staff escort, zero
    tolerance, and room cleaning policies did not violate Mr. Conways ss. 7 and 9
Charter
rights. The Boards conclusion was amply supported by the evidence about the difficulties
    some Hospital staff were encountering in managing Mr. Conways aggressive
    outbursts and behaviour, the impact of such conduct on other patients and
    staff, and Mr. Conways selective compliance with directions from some staff
    but not from others. As well, it was implicit in the Boards reasons that the
    Hospitals care plan amounted to the least onerous and least restrictive means
    by which to manage Mr. Conway in the circumstances. We see no basis on which to
    interfere with the Boards decision on this issue.

Seclusion in the management plan

[41]

Mr.
    Conway also submits the inclusion of potential seclusion in the Hospitals behaviour
    intervention plan violated his
Charter
rights. Mr. Conway did not
    advance this argument before the Board; he raises it for the first time on
    appeal. We accept the submissions of the Hospital and Ontario that in those
    circumstances it would not be appropriate for this court to consider his
    submission.

VI.

DISPOSITION

[42]

For
    the reasons set out above, we dismiss Mr. Conways appeal from the Boards
    November 14, 2016 Disposition.

Paul
    Rouleau J.A.
David Watt J.A.
David Brown J.A.





[1]
This courts decision was released on December 6, 2016, several weeks after the
    Boards hearing concluded.


