Ontario Criminal

Criminal Law

Post-trial procedure

Detention and release after trial

Continued detention was warranted

Accused, now 63 years old, was found not guilty by reason of insanity of using weapon while committing sexual assault and had been detained under jurisdiction of Ontario Review Board for over 30 years. At his last annual hearing, accused was unrepresented and his request for adjournment to retain counsel was denied because hearing date was marked peremptory. Hospital sought accused’s continued detention but asked Board to transfer him to another hospital because he was unmanageable. Board found that accused’s continued detention was warranted because he remained significant threat to safety of public, but refused to order his transfer to another hospital. Appeal by accused dismissed. Board erred in its approach to accused’s request for adjournment and in not specifically addressing his complaint about sleep deprivation. Peremptory designation did not exhaust Board’s discretion or preclude it from granting adjournment if one was required in interests of justice. Refusing adjournment solely because hearing date had been designated peremptory amounted to error in principle. However, in practical terms, issue was moot. On central issue of whether accused should be transferred to another hospital, Board concluded that evidence of doctors who testified as to ongoing abuse and trauma that accused had allegedly inflicted on numerous hospital staff members was outweighed by dramatic improvements in accused’s condition while at hospital. Accused insisted on being awakened for hourly checks on his condition during night, leading to ongoing sleep deprivation. Board did not address issue in its reasons. Board was obliged to explore what hospital had done to address accused’s sleep problem in more detail than it did at last hearing. Board was urged to explore issue of accused’s sleep deprivation and, if not already done, was directed to obtain independent opinion.

Conway, Re (2016), 2016 CarswellOnt 19061, 2016 ONCA 918, John Laskin J.A., E.E. Gillese J.A., and David Watt J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3966, N.D. McRae Alt. Chair, J. Burnside Member, G. Nexhipi Member, T. Verny Member, and J. Cyr Member (Ont. Review Bd.).

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