



COURT OF APPEAL FOR ONTARIO

CITATION: Conway (Re), 2016 ONCA 918

DATE: 20161206

DOCKET: C62136

Laskin, Gillese and Watt JJ.A.

IN THE MATTER OF:  PAUL MARTIN CONWAY

AN APPEAL UNDER PART XX.1 OF THE
CODE

Paul Martin Conway, acting in person

Erin Dann,
amicus curiae

Janice E. Blackburn, for the respondent the Person in
    Charge of St. Joseph's Healthcare Hamilton

Matthew Morley, for the respondent the Attorney General
    of Ontario

Heard: September 30, 2016

On appeal against the disposition of the Ontario Review
    Board, dated February 25, 2016.

Laskin J.A.:

A.

Introduction

[1]

The appellant, Paul Conway, now 63 years old, has been detained under
    the jurisdiction of the Ontario Review Board for over 30 years. Since mid-2011,
    he has been detained at St. Josephs Healthcare in Hamilton, most recently on
    its general forensic unit.

[2]

At his last annual hearing in February 2016, though the Board had
    appointed
amicus
, Mr. Conway was unrepresented. He asked for an
    adjournment to retain counsel, but the Board denied his request, because the
    hearing date had been marked peremptory.

[3]

At the hearing, St. Josephs sought Mr. Conways continued detention,
    but asked the Board to transfer him to another hospital, because he was
    unmanageable. St. Josephs led the evidence of two doctors to show that Mr.
    Conways behaviour had traumatized numerous staff members, none of whom were identified.

[4]

The Board found that Mr. Conways continued detention was warranted,
    because he remained a significant threat to the safety of the public. But the
    Board refused to order his transfer to another hospital. While acknowledging
    that Mr. Conway remains a prodigiously difficult patient, the Board cited the
    dramatic improvements in his condition in the previous four months and
    concluded that a transfer from St. Josephs would be a set-back for him. The
    Board ordered that its disposition be reviewed within six months.

[5]

Mr. Conway appeals the Boards disposition. He was unrepresented on the
    appeal, but
amicus
represented his interests and made three
    submissions on his behalf:

(1)

The Board erred by refusing
    Mr. Conways request for an adjournment because the hearing had been marked
    peremptory;

(2)

The Board erred by relying
    on the hearsay evidence of two doctors about Mr. Conways abuse toward staff
    without recognizing the inherent weaknesses of their evidence; and

(3)

The Board erred by failing
    to direct St. Josephs to address Mr. Conways sleep deprivation.

On his own behalf, Mr. Conway made one additional
    submission:

(4)

The Board erred by refusing
    to grant Mr. Conway a conditional discharge.

[6]

Although I would dismiss the appeal, in my view the Board erred in its approach
    to Mr. Conways adjournment request and in not specifically addressing Mr.
    Conways complaint about his sleep deprivation.

B.

Brief Background

[7]

The index offence that brought Mr. Conway under the jurisdiction of the
    Board occurred in late 1983, when he was 29 years old. On February 27, 1984, he
    was found not guilty by reason of insanity on a charge that he used a weapon
    while committing a sexual assault. Since then, he has been detained at various
    forensic hospitals in Ontario. Over the years, he has been diagnosed with an
    assortment of psychiatric illnesses and conditions. His current diagnosis is
    paranoid personality disorder and obsessive compulsive disorder.

[8]

Throughout much of the time Mr. Conway has been detained, he has made
    little progress towards reintegrating into the community. Very recently, that
    has changed. In 2015, for the first time in over 30 years, Mr. Conway was
    allowed access privileges that included unaccompanied passes into the community,
    with indirect supervision. For the six months leading up to his February 2016
    hearing, he exercised this access seven days a week, without incident.

[9]

His treating psychiatrist testified about Mr. Conways significant
    progress. She noted that his score on the Aggressive Incidents Scale had dropped
    from 130 in January 2015 to zero in 2016. She observed this remarkable
    improvement beginning in March or April of 2015. She did acknowledge that, at
    times, Mr. Conway was verbally aggressive toward staff members, but said that
    these episodes of verbal aggression had declined significantly. In her opinion,
    if Mr. Conway continued to progress and if everything went well, he could have
    possibly been discharged into the community this fall. At the hearing, Mr.
    Conway stated unequivocally that he did not want to live in detention for the
    rest of his life and that he wanted to transition to living in the community.

[10]

Even Dr. Chaimowitz, the head of service for St Josephs forensic
    psychiatry program, admitted that Mr. Conway had done exceptionally well and
    that Mr. Conway could possibly live in the community and cause nothing more
    than trivial annoyances to others. Still, Dr. Chaimowitz advocated for Mr.
    Conways transfer to another hospital, because St. Josephs was at the end of
    our tether in terms of the ability to manage Mr. Conway without ongoing
    significant harm to our staff. He added, its somebody elses turn and we
    need to re-look at the sort of damage that has been done to our staff.

[11]

Against this background, I turn to the three issues on appeal.

C.

The Issues

(1)

Did the Board err by
    refusing Mr. Conways request for an adjournment because the hearing had been
    marked peremptory?

(a)

Overview

[12]

By the time Mr. Conways annual review came up for hearing on February
    18, 2016, it had already been adjourned twice. Mr. Conway sought a third
    adjournment to give him more time to retain counsel to represent him at the
    hearing. The Board refused his request, because at the pre-hearing conference
    to schedule the February date, the Board had designated the date as peremptory
    on all parties.

[13]

Amicus
submits that the Board erred in principle in refusing an
    adjournment simply because the hearing date was peremptory. She argues that the
    Board still had discretion to grant an adjournment, if it was in the interests
    of justice to do so. In addition to taking into account the peremptory
    designation, the Board ought to have taken account of other considerations,
    especially any prejudice to Mr. Conway from refusing his request.

[14]

Having made this submission,
amicus
candidly acknowledged that
    in practical terms, the issue was moot. Even if successful, the only relief Mr.
    Conway could obtain would be a new hearing. And because of the Boards
    disposition, he will have a new hearing very soon. Still,
amicus
urged
    us to address this issue, because of its implication for future Board hearings.
    I have decided to do so.

[15]

I need not decide whether the Board erred in its decision to refuse an
    adjournment. But I agree with
amicus
that the Board erred in its
    approach. The peremptory designation did not exhaust the Boards discretion
    or preclude it from granting an adjournment should the interests of justice
    have required one. Before discussing my conclusion, I will briefly outline the
    context in which Mr. Conway requested an adjournment.

(b)

Procedural
    history

[16]

Mr. Conways 2014 annual review took place in November of that year. His
    2015 annual review was scheduled for October 16, 2015, but was adjourned on
    consent to January 11, 2016. That was the first adjournment.

[17]

Mr. Conway then told his psychiatrist that he intended to ask for an
    adjournment of the January 11, 2016 date, because he wanted to retain counsel.
    The Board held a pre-hearing conference on January 6, 2016, at which Mr. Conway
    reiterated his request for an adjournment. St. Josephs opposed his request.
    Because of the disagreement, the Board Chair referred the question of an
    adjournment to the full panel on January 11, 2016. The panel granted an
    adjournment for two reasons: the hearing was unlikely to be completed in the
    time set aside for it; and the Board did not want to go ahead unless Mr. Conway
    had counsel or the Board appointed an
amicus
. This adjournment was the
    second adjournment. A day later, this court dismissed Mr. Conways appeal from
    his 2014 disposition.

[18]

On January 28, 2016, the Board held another pre-hearing conference, by
    telephone, to schedule a new date for Mr. Conways annual review. Mr. Conway
    participated on the call for only a few minutes. In his absence, the Board
    Chair conducting the pre-hearing conference ordered that the hearing would
    proceed on February 18, 2016 and that this date would be peremptory on all
    parties. The Board Chair added that if Mr. Conway wanted to retain counsel,
    any counsel he retains between todays date and February 18 must be available
    and prepared to proceed on February 18. Finally, the Board Chair appointed an
amicus
to assist it, even though Mr. Conway had refused to speak to him.

[19]

On February 9, 2016, nine days before the fixed hearing date, Mr. Conway
    wrote to the Board. He said two things in his letter: he was experiencing an
    extended period of sleep deprivation, and he was trying to retain counsel, but he
    had so far been unsuccessful.

[20]

On the hearing date itself, February 18, 2016, Mr. Conway appeared
    before the Board and presented a letter in which he asked that the hearing be
    adjourned to allow him enough time to retain a lawyer. Mr. Conway also
    presented a letter from the lawyer who had argued his appeal in January, which
    stated that she was not available to assist him until April. He opposed the
    appointment of
amicus
. On the substantive issues before the Board, Mr.
    Conway noted a divergence between the position of St. Josephs and his clinical
    treatment team on whether he should be transferred to another hospital.

[21]

The Board denied Mr. Conways request for an adjournment. At the hearing,
    the Board Chair said: Well we are proceeding. Its peremptory today. It means
    it must go on todaywe have no option except to proceed. In its reasons
    released about two and a half weeks later, the Board noted: The Board
    explained to Mr. Conway that the matter was peremptory and would be
    proceeding.

[22]

Mr. Conway remained in the room for most of the hearing  he left before
    final submissions  but while there he did not fully participate, because he
    did not want to jeopardize a future challenge to the proceedings.

(c)

Analysis

[23]

In deciding whether grant or refuse a request for an adjournment, the Board
    must take into the account the interests of the not criminally responsible (NCR)
    accused, the interests of the hospital, and its own statutory mandate to hold
    timely hearings. Because its decision is discretionary, it attracts significant
    deference from an appellate court. But an appellate court may justifiably
    interfere if the Board errs in principle, or exercises its discretion
    unreasonably. So, for example, an appellate court may intervene if the Boards
    denial of an adjournment deprives an NCR accused of a fair hearing and thus is
    contrary to the interests of justice: see
Khimji v. Dhanani
(2004), 69
    O.R. (3d) 790 (C.A.), at para. 14.

[24]

In the case before us, the Board denied Mr. Conways request for an
    adjournment to retain counsel for the sole reason that the hearing date had
    been designated peremptory. Refusing an adjournment for that reason alone
    amounted to an error in principle. Although the dictionary definition of
    peremptory  irreversible, binding, conclusive  suggests that a hearing marked
    peremptory must proceed, our court, sensibly, has held otherwise. In
Igbinosun
    v. Law Society of Upper Canada
, 2009 ONCA 484, 96 O.R. (3d) 138, at para.
    43, Weiler J.A. wrote:

One of the purposes of making a hearing date
    peremptory is to further the public interest in the administration of justice
    by preventing delay and wasted costs. However, judicial discretion must still
    be exercised depending on the facts and circumstances of each case, as the
    overarching purpose of marking a date peremptory is to serve the interests of
    justice. [Footnotes omitted.]

[25]

In other words, peremptory in this context does
    not mean mandatory. It does not remove the Boards discretion. Although the
    peremptory designation will be an important consideration in the Boards
    decision, the Board must still exercise its discretion by taking into account
    other relevant considerations, especially any prejudice to the NCR accused from
    refusing an adjournment.

[26]

Without attempting a complete list, the
    following considerations ought to have had a bearing on the Boards decision
    whether to grant Mr. Conways request for an adjournment.

·

Had there been previous adjournments and previous peremptory
    designations?
The hearing had already been adjourned
    twice before, but neither previous date had been marked peremptory.

·

What was the reason for Mr. Conways adjournment request?
Mr. Conway sought an adjournment to retain counsel. Under s. 672.5(7)
    of the
Criminal Code
, he had the right to be represented by counsel at
    his annual review.

·

Was amicus an adequate substitute for Mr. Conways own
    counsel?
As Mr. Conway did not have counsel, the Board,
    acting under s. 672.5(8) of the
Criminal Code
, appointed
amicus
to act for him: see
R. v. LePage
(2006), 217 O.A.C. 82. The Board should have assessed whether
amicus
was an adequate substitute for Mr. Conways own counsel.

·

Had Mr. Conway made attempts to retain counsel?
Mr. Conway had made some attempts, though not exhaustive attempts,
    to obtain counsel for the February 18, 2016 hearing. His counsel of choice, who
    had represented him on his appeal, was available in April, two months from the
    scheduled hearing date.

·

What were the consequences of the hearing for Mr. Conway and
    the potential prejudice to him?
Mr. Conway was
    potentially prejudiced by having to proceed without his own counsel. He was
    facing a possible significant change to his disposition, a transfer to another
    hospital; and he was facing the evidence of two doctors who would be trying to
    demonstrate the significant harm he had caused to members of the hospitals
    staff.

·

Would St. Josephs be prejudiced by an adjournment?
The record did not establish that St. Josephs would be prejudiced
    by an adjournment of a few months.

·

Was Mr. Conway trying to manipulate the system?
There was no evidence in the record that by seeking a third
    adjournment Mr. Conway was trying to manipulate the system.

·

Would another adjournment affect the Boards statutory
    mandate to hold a timely annual review?
Under s.
    672.81(1) of the
Criminal Code
,
the Board is required to hold an annual review of an accuseds
    disposition within 12 months of its previous disposition. As the Boards
    previous disposition for Mr. Conway was in November 2014, the February 18, 2016
    hearing date was already 15 months after its previous disposition. However,
    both the
Criminal Code
and the Boards own rules enable the Board to
    grant adjournments. Under s. 672.81(1.1), where the accused is represented by
    counsel and the accused and the Attorney General consent, the Board has the
    power to extend the time for holding a hearing to a maximum of 24 months. Under
    Rule 32 of its Rules, the Board can grant adjournments in furtherance of its
    power to control its own proceedings.

[27]

After balancing these considerations, the Board
    would have had to decide whether it should grant Mr. Conways adjournment
    request. Had the Board exercised its discretion by taking into account these
    considerations, in this case this court would undoubtedly have had no basis to
    second guess its decision. As the Board considered only the peremptory
    designation, however, it would have been open to this court to set aside the
    Boards refusal of an adjournment. However, as I said at the outset, in
    practical terms, the Boards refusal is moot. For that reason I would not give
    effect to this ground of appeal.

(2)

Did the Board err in relying on the hearsay evidence given by Dr.
    Chaimowitz and Dr. Cividino without recognizing the inherent weaknesses of their
    evidence?

[28]

To support its case that Mr. Conway ought to be
    transferred to another institution, St. Josephs led evidence from Dr.
    Chaimowitz and Dr. Cividino. Their evidence summarized the ongoing abuse and
    trauma Mr. Conway had inflicted on numerous members of the staff.

[29]

Dr. Chaimowitz outlined the various incidents of
    abuse in the hospital report. Dr. Cividino, an occupational medicine physician
    at St. Josephs, summarized the complaints of four experienced staff, who had
    sought medical assistance after suffering psychologically and emotionally from
    Mr. Conways ongoing harassing behaviour towards them. All of this evidence was
    hearsay, and none of the members of the staff was identified by name.

[30]

Amicus
accepts
    that the Board is entitled to receive and act on hearsay evidence, but submits
    that the Board ought to scrutinize this hearsay evidence with greater care. She
    contends that the Board ought to have recognized the evidences inherent
    weaknesses. She points out that as no staff member had been identified by name,
    Mr. Conway could not effectively challenge this evidence. I would not give
    effect to this submission.

[31]

The Board has wide latitude to receive hearsay
    evidence, in part because its proceedings are more inquisitorial than
    adversarial. See
Ranieri (Re)
, 2015 ONCA 444,
    336 O.A.C. 88, at para. 16. Indeed, hospital reports, which are prescribed in
    Rule 19 of the Boards rules, typically contain a good deal of hearsay, as they
    detail the various incidents in an accuseds life while detained. Thus, the
    Board must rely on hearsay evidence to do its job effectively. Of course,
    depending on the nature of the hearsay and its relevance to the matters in issue,
    some hearsay evidence will require greater scrutiny before the Board can accept
    it.

[32]

In the present case, the short answer to
amicus
submission is that on the central issue before the Board  whether
    Mr. Conway should be transferred to another hospital  the Board did not act on
    the hearsay evidence of either doctor. St. Josephs led this evidence to
    support a transfer. The Board concluded that the impact of this evidence was
    outweighed by the dramatic improvements in Mr. Conways condition while at St.
    Josephs. The Board therefore ordered that he remain at St. Josephs. Thus, I
    would not give effect to this ground of appeal.

(3)

Did the Board err in failing to direct St. Josephs to address Mr.
    Conways sleep deprivation?

[33]

The background to this issue is the following.
    St. Josephs, like many other hospitals in Ontario, has a policy of hourly
    checks on a patient during the night. The policy is rooted in patient safety.
    Most patients are not disturbed by the hourly checks, as they are asleep. But
    Mr. Conway insists on being awakened, because he does not like people coming
    into his room without his knowing it. His insistence on being awoken has caused
    him significant sleep deprivation. St. Josephs respirologist admitted that sleep
    is an important factor in a persons mood and functioning.

[34]

The question of how best to address Mr. Conways
    sleep deprivation has been simmering for some time. Possible solutions have
    included installing a window in the door to Mr. Conways room, installing a
    camera in his room to monitor him, or at least obtaining the advice of an
    independent expert. In its 2014 disposition, the Board recognized that Mr.
    Conways lack of sleep was an issue of significance and noted that given the
    ongoing impasse, it might be helpful for an independent third party to provide
    an opinion with respect to this issue.

[35]

Mr. Conway appealed his 2014 disposition to this
    court. The panel addressed the sleep deprivation issue in its endorsement: 2016
    ONCA 36, [2016] O.J. No. 220, at para. 8. The panel saw nothing wrong with
    the way the Board had dealt with the issue, but added:

Obviously, if the hospital ignored the recommendations, or if
    the appellant would not participate in such a plan, or if an independent third
    partys involvement does not lead to a resolution, the issue might need to be
    addressed more directly by the ORB in the next annual review.

[36]

In the light of this courts endorsement, at the February 2016 hearing,
    the Board Chair asked Dr. Chaimowitz about Mr. Conways sleep deprivation. The
    doctor said that Mr. Conway was still being woken up hourly. In response to
    whether there was any other way you can handle that issue, Dr. Chaimowitz
    said only that weve looked at all the options that are here. He did not elaborate,
    and he was not asked to do so. And he did not say if, or why, St. Josephs had
    ruled out installing a window in the door, or a camera to monitor Mr. Conways
    sleep. He did not say whether St. Josephs had obtained an outside opinion. Although
    the Board Chair noted at the hearing that the Court of Appeal more or less
    told us to direct our attention to it, in its reasons for disposition, the
    Board did not even address Mr. Conways sleep deprivation.

[37]

Because of this background,
amicus
submits, with some
    justification, that the Board erred in the way it addressed Mr. Conways sleep
    deprivation.

[38]

The issue is a difficult one for the Board. On the one hand, review
    boards cannot be expected to micro-manage the day-to-day operations of
    hospitals: see
R. v. Petroniuk
, 2014 ONSC 6951, 322 C.R.R. (2d) 276,
    at para. 20. On the other hand, the Boards obligation to fashion the
    necessary and appropriate disposition includes taking account of the package
    of conditions under which an NCR accused is detained.

[39]

Given the history of this issue and this courts 2015 endorsement, the
    Board was obliged to explore what St. Josephs has done to address Mr. Conways
    sleep problem in more detail than it did at the February 2016 hearing. St.
    Josephs may well have canvassed the alternatives for Mr. Conway, including
    obtaining an outside opinion, and concluded it had no alternative but to
    continue an hourly bed check. But it is not readily apparent from Dr.
    Chaimowitzs testimony that St. Josephs has done so.

[40]

As Mr. Conway has an upcoming review very soon, I would not make the
    order
amicus
seeks. But I would urge the Board to explore the issue of
    Mr. Conways sleep deprivation, and if St. Josephs has not already done so,
    direct it to obtain an independent opinion. With that qualification, I would
    not give effect to this ground of appeal.

(4)

Did the Board err in refusing to grant Mr. Conway a conditional
    discharge?

[41]

Mr. Conway submits that there was no evidence before the Board to
    suggest that the risk he poses could not be managed in the community and thus
    the Board should have granted him a conditional discharge. He took no position
    before the Board, so understandably the Board did not expressly address whether
    he was entitled to a conditional discharge. But from reading the Boards
    detention order and reasons, it is obvious that if he had asked for a
    conditional discharge, the Board would have rejected it. We have been given no
    basis to grant that relief on appeal.

D.

Conclusion

[42]

I would dismiss Mr. Conways appeal.

Released: December 6, 2016 (J.L.)

John Laskin J.A.

I agree. E.E. Gillese J.A.

I agree. David Watt J.A.


