



COURT OF APPEAL FOR ONTARIO

CITATION: Conway (Re), 2016 ONCA 36

DATE: 20160115

DOCKET: C59789

MacPherson, Watt and Miller JJ.A.

IN THE MATTER OF:  PAUL MARTIN CONWAY

AN APPEAL UNDER PART XX.1 OF THE
CODE

Suzan E. Fraser, for the appellant

Kevin Rawluk, for the respondent Crown

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

Heard: January 12, 2015

On appeal against the disposition of the Ontario Review
    Board dated November 24, 2014.

ENDORSEMENT

[1]

The appellant Paul Conway is a 62 year old man in his 32
nd
year of detention in Ontarios forensic mental health system. In 1984, he was
    found not guilty by reason of insanity on a charge of using a weapon while
    committing a sexual assault.

[2]

On November 24, 2014, the Ontario Review Board (ORB) conducted its
    annual review of the appellants case. At the time, he was detained in a
    minimum security unit at St. Josephs Healthcare in Hamilton. The ORB
    unanimously concluded that the appellant remained a significant threat to
    public safety. He continued to present as verbally abusive, intimidating and
    threatening, with little ability to control his explosive anger. In light of
    the significant risk posed by the appellant, the ORB concluded that the least
    onerous and least restrictive disposition was a detention order in minimum
    security with indirectly supervised community privileges and the privilege of
    residing in the community in approved accommodation.

[3]

The ORB also dealt with a specific issue relating to sleep deprivation:

In the course of the hearing, the Board heard evidence with
    respect to Mr. Conways sleep deficits, deficits which might well be a
    contributing factor to his behaviour. The protocols of the hospital of
    necessity require hourly bed checks, which offend Mr. Conways sense of privacy
    and which for the most part appear to be benign, except for his desire to be
    awakened on an hourly basis instead of hospital personnel simply taking a view
    of him while he sleeps. This is an issue of significance, which hopefully can
    be resolved by the hospital and Mr. Conway. It is noted that in his evidence,
    Mr. Conway said he would welcome a window or portal being installed in his door
    or a surveillance camera with the appropriate lighting to provide the hospital
    access to him. Given the ongoing impasse, it might be helpful for an
    independent third party to provide an opinion with respect to this issue.

[4]

The appellant appeals the ORB decision on two bases.

[5]

First, the appellant contends that the ORB erred by finding that he
    poses a significant threat to public safety in the absence of positive evidence
    that he posed a risk of serious criminal harm. According to the appellant, if
    there is evidence of harm, it is a risk of trivial harm. In support of this
    position, the appellant pointed out that his behaviour off the hospital grounds
    (under supervision) is quite good.

[6]

We do not accept this submission. The ORBs decision denying the
    appellant an absolute discharge was reasonably supported by the evidence,
    including the expert opinion of the treating psychiatrist and the hospital
    report. The latter disclosed 122 threatening, intimidating or aggressive acts
    by the appellant in a six-month period. The evidence before the ORB
    demonstrated that the appellant continues to experience significant paranoia
    and that his actions and outbursts have caused serious psychological harm to
    the trained professionals working with him. His behaviour, combined with his
    lack of insight into his mental condition, continue to satisfy the significant
    threat threshold for detention.

[7]

Second, the appellant submits that the ORB erred when it failed to
    direct the hospital on the sleep deprivation issue. The appellant says that the
    ORBs statement that it might be helpful for an independent third party to
    provide an opinion with respect to this issue is not good enough; it is not
    the least onerous restriction consistent with public safety.

[8]

We disagree. The hospital (and similar facilities throughout Ontario)
    has a sensible policy of conducting hourly bed checks of all patients for
    safety reasons. The policy requires direct patient observation. These checks
    are normally performed without any issue as the patient sleeps. The appellant
    is vigorously opposed to this practice. He does not want hospital staff
    entering his room while he sleeps. Accordingly, he insists on being awakened
    every hour which has led, as everyone acknowledges, to a serious sleep deprivation
    problem. In the context of this impasse, we see nothing wrong with the ORB
    saying that [t]his is an issue of significance, which hopefully can be
    resolved by the hospital and Mr. Conway and recommending that an independent
    third party provide an opinion for the parties to consider. 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.

[9]

The appellant and the hospital submitted fresh evidence. In our view,
    there is nothing in it to alter our analysis and conclusions on the two issues.

[10]

At
    the conclusion of the hearing, but before counsel departed, an email letter
    from the appellant, seeking an adjournment because he did not attend the
    hearing, was delivered to the panel. The appellants counsel took no position
    on this late-breaking development (she had asked for the hearing to proceed
    when court opened an hour earlier), and the Attorney General and hospital
    opposed an adjournment. We see no reason for granting an adjournment and
    decline to do so.

[11]

The
    appeal is dismissed.

J.C.
    MacPherson J.A.

David
    Watt J.A.

B.W.
    Miller J.A.


