



COURT OF APPEAL FOR ONTARIO

CITATION: LePage (Re), 2018 ONCA 89

DATE: 20180131

DOCKET: C62811

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

BETWEEN

IN THE MATTER OF DENIS LUCIEN LEPAGE

AN APPEAL UNDER PART XX.1 OF THE CODE

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 Hospitals 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 Crowns 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 appellants absence and reached the same
    disposition. In addition, we note that the effect of the misunderstanding was
    to nullify the appellants 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 appellants 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.


