



COURT OF APPEAL FOR ONTARIO

CITATION: Tolias (Re), 2021 ONCA 478

DATE: 20210702

DOCKET: C68995

Hourigan, Paciocco and Zarnett
    JJ.A.

IN THE MATTER OF: Helen Tolias

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Manasvin Goswami, for the respondent,
    Attorney General of Ontario

No one
    appearing for the respondent, Person in Charge of Providence Care Hospital Kingston

Heard: June 25, 2021 by
    videoconference

On appeal from the disposition of the Ontario
    Review Board, dated October 1, 2020, with reasons dated October 30, 2020.

REASONS FOR DECISION


[1]

Helen Tolias is currently under the jurisdiction
    of the Ontario Review Board (the Board) as the result of a 2006 verdict of
    not criminally responsible on account of mental disorder (NCR) arising from non-violent
    criminal harassment charges. Sadly, Ms. Tolias has been under detention orders
    since that time, including, more recently, at the Secure Forensic Unit of Providence
    Care Hospital, Kingston (Providence Care SFU).

[2]

Ms. Tolias most recent disposition review occurred
    on September 17, 2020, by videoconference, in Ms. Tolias absence. The Board
    decided to proceed
in

absentia

after learning that Ms.
    Tolias was not comfortable having a videoconference hearing, and after being
    informed that she had discharged her lawyer. The Board appointed Ms. Tolias
    discharged lawyer as
amicus
before proceeding with the hearing.

[3]

On October 1, 2020, the Board released its
    disposition arising from the September 17, 2020 hearing (the October 2020
    Disposition). The October 2020 Disposition ordered Ms. Tolias to be detained forthwith
    at the Forensic Psychiatry Program of St. Josephs Health Care Hamilton (St.
    Josephs FPP), on conditions.

[4]

Ms. Tolias now appeals the October 2020
    Disposition. She argues that:

(1) The Board committed a jurisdictional error in proceeding by
    videoconference without her consent;

(2)   The Board erred in law by applying the wrong test in determining
    that she poses a significant threat to the safety of the public; and

(3)   The Boards finding that detention on conditions is the least
    onerous and restrictive disposition, rather than a conditional or absolute
    discharge, is unreasonable.

[5]

It is unnecessary for us to consider the last
    two grounds of appeal, since the Crown correctly concedes the first ground. In
Woods
    (Re)
, 2021 ONCA 190, 154 O.R. (3d) 481, at para. 7, this court determined
    that the Board did not have jurisdiction to proceed by videoconference without
    the consent of the NCR accused. By doing so in this case, the Board committed
    a jurisdictional error.

[6]

The Crown nonetheless submits that we should
    dismiss the appeal pursuant to s. 672.78(2)(b) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, notwithstanding the Boards legal error. The Crown
    argues that no substantial wrong or miscarriage of justice occurred because, in
    this unique situation, the Boards decision to proceed was reasonable and the
    subsequent hearing was fair.

[7]

In our view, s. 672.78(2)(b) does not apply
    because the authority to dismiss an appeal from a disposition under s.
    672.78(2)(b) is confined to decisions based on a wrong decision on a question
    of law. The Boards error in conducting a videoconference hearing without Ms.
    Tolias consent was not simply a wrong decision on a question of law or a mere
    procedural error. It was a jurisdictional error that rendered the disposition
    null and void:
Woods (Re)
, at para. 7. A disposition arrived at
    without jurisdiction constitutes a miscarriage of justice which cannot be
    saved pursuant to s. 672.78(2)(b).

[8]

In the alternative, the Crown submits that if we
    allow Ms. Tolias appeal, we should exercise our jurisdiction pursuant to s.
    672.78(3)(a) of the
Code
to make a disposition that is identical to
    the Boards October 2020 Disposition.

[9]

Ms. Tolias also asks us to make a disposition,
    but she requests an absolute discharge, or, alternatively, a conditional
    discharge.

[10]

Mindful that Ms. Tolias is prepared to permit us
    to do so, we do not consider it to be in the interests of justice to arrive at a
    disposition based on a record generated in a hearing that proceeded without
    jurisdiction and was conducted without Ms. Tolias participation.

CONCLUSION

[11]

Accordingly, the appeal is allowed, the October
    2020 Disposition is set aside, and a new hearing is ordered. The new hearing is
    to be held at the earliest possible opportunity once in-person Board hearings
    resume, or, if Ms. Tolias consents in writing to a videoconference or telephone
    hearing, at the earliest available opportunity for a videoconference or
    telephone hearing.

[12]

The Boards disposition of January 29, 2020 (the
    January 2020 Disposition) therefore remains in force pending a new disposition.
    However, it is in the interests of justice to vary the January 2020 Disposition,
    which required Ms. Tolias to be detained at Providence Care SFU in Kingston.
    Pursuant to the October 2020 Disposition, now set aside, Ms. Tolias was ordered
    to be detained at St. Josephs FPP in Hamilton, which is closer to where her family
    resides. Due to a wait list delay, Ms. Tolias was only recently moved to St.
    Josephs FPP. It is not in the interests of justice, nor in Ms. Tolias interest,
    to return her to Providence Care SFU.

[13]

Therefore, s. 1 of the January 2020 Disposition
    is varied to replace the term Secure Forensic Unit of the Providence Care
    Hospital, Kingston, Ontario, with Forensic Psychiatry Program at St. Josephs
    Health Care Hamilton, West 5th Campus.

[14]

Section 2 of the January 2020 Disposition is varied
    as follows:

(i)     to replace all references to Providence Care Hospital in
    s. 2 with St. Josephs Health Care Hamilton;

(ii)    to replace the term Secure Forensic Unit of the Providence
    Care Hospital, with Forensic Psychiatry Program at St. Josephs Health Care
    Hamilton; and

(iii)   to replace all references to Kingston in s. 2 with
    Hamilton.

[15]

Sections 3 and 4 of the January 2020 Disposition,
    as well as the COMMAND to the person in charge of the Providence Care
    Hospital, are all varied to replace the term Providence Care Hospital with
    St. Josephs Health Care Hamilton.

C.W. Hourigan J.A.

David M. Paciocco J.A.

B. Zarnett J.A.


