Appellant Brian-Conception

Transcription

Court File No. 34930
IN THE SUPREME COURT OF CANADA
(on appeal from the Court of Appeal for Ontario)
BETWEEN:
BRIAN CONCEPTION
Appellant (Respondent)
-and·
HER MAJESTY THE QUEEN
Respondent (Respondent)
and
THE PERSONS IN CHARGE OF THE CENTRE FOR
ADDICTION AND MENTAL HEALTH and
THE MENTAL HEALTH CENTRE
PENETANGUISHENE
Respondents (Appellants)
and
ATTORNEYGENERALFORCANADA
Intervener
and
PROCUREUR GENERAL DU QUEBEC
Intervener
APPELLANT'S FACTUM
FRANK ADDARIO
Addario Law Group
171 John Street
Toronto, Ontario M5T 1X3
Tel.: 1-416-979-6446
Fax: 1-888-714-1196
faddario@addariolaw.ca
PAUL BURSTEIN
Burstein Bryant Barristers
51h Floor - 6 Adelaide Street East
Toronto, Ontario MSC 1H6
Tel. 1-416-927-7441
Fax: 1-416-488-9802
pburstein@bursteinbryantcom
Counsel for the Appellant
RAIJA PULKINNEN
Sack Goldblatt Mitchell LLP
Ste. 500 - 30 Metcalfe Street
Ottawa, Ontario K1P 5L4
Tel.: (613) 235-5327
Fax: (613) 235-3041
K1P 5L4
Ottawa Agent for Appellant
PAUL BURSTEIN and FR.Al~K ADD ARlO
Paul Burstein
6 Adelaide Street East, 5th Floor
Toronto, Ontario MSC IH6
Tel:
416-927-7441
Fax: 416-488-9802
Email: pburstein@bursteinbryant.com
RAIJA PULKINNEN
Sack Goldblatt Mitchell LLP
30 Metcalfe Street, Suite 500
Ottawa, Ontario KIP 5L4
Tel:
613-235-5327
Fax: 613-235-3041
Email: :r:pulkki:nen@sgrnlaw .com
Frank Addario
Addario Law Group
171 John Street, Suite 101
Toronto, Ontario M5T 1X3
Tel:
416-979-6446
Fax: 1-866-714-1196
Email: gg~]Q(;~~m~
Ottawa Agents for the Appellant,
Brian Conception
Counsel for the Appellant, Brian Conception
RIUN SHAL~DLER and GRACE CHOI
)vfinistry of the Attorney General (Ontario)
Crown Law Office - Criminal
720 Bay Street, lOth Floor
Toronto, Ontario M7 A 2S9
Tel:
416-326-4600
Fax:
416-326-4656
Email: rilm.shandler(Zi''.ontario.ca
£race.choi@.ontario.ca
ROBERT E. HOUSTON, Q.C.
Burke -Robertson LLP
441 MacLaren Street, Suite 200
Ottawa, On K2P 2H3
Tel:
613-236-9665
Fax: 613-235-4430
Email: rhouston@burkerobertson.com
Counsel for the Respondent,
Her Majesty the Queen
Ottawa Agents for the Respondent,
Her :Y1aj esty the Queen
JAL'VIES P. THOMS0::.\1
Bersenas Jacobsen Chouest Thomson
Blackburn LLP
33 Yonge Street, Suite 201
Toronto, Ontario M5E 1G4
Tel:
416-982-3806
416-982-3801
Email: @;;m}_~ifill~~~&QlQl
lVIARIE- FR.Al~CE IHAJOR
Supreme Advocacy LLP
397 Gladstone Avenue, Suite 100
Ottawa, Ontario K2P OY9
Tet
613-695-8855
Fax: 613-695-8580
Email: mfrnajor@supremeadvocacv.ca
Counsel for the Respondents, The Person In Charge
of the Centre for Addiction and Mental Health and
The Person In Charge of the Mental Health Centre
Penetanguishene
Ottawa Agents for the Respondents,
The Person In Charge of the Centre for
Addiction and Mental Health and The Person
In Charge of the Mental Health Centre
P enetanguishene
RICHARD KRAl'VI:ER and GTh'ETTE GOBEIL
Department of Justice, Ontario Regional Office
130 King Street West, Suite 3400
Toronto, Ontario M5X 1K6
Tel:
416-952-6330
Fax: 416-973-4328
Email: rk:ramer(@.justice.gc.ca
ginette. ~wbeil@oosc-sunc. gc.ca
ROBERT J. FRATER
Counsel for the Intervener,
The Attorney General of Canada
Ottawa Agents for the Intervener, the
Attorney General of Canada
CAROLil\TE RENAlJ'TI and DOl\Hi'{IQDE
A. JOBIN
Direction generale des affjur.et legis
1200 route de l'Eglise, 2e etage
Quebec, QC Gl V 4Ml
Tel·
418-643-1477 ext.20780
Fax : 418-644-7030
Email : caroline.renaud(ci),justice.gouv.qc.ca
dominique-a. jo bin@justi ce. gouv. q c. ca
PIERRE LAL~DRY
Counsel for the Intervener,
the Attorney General of Quebec
Senior General Counsel
Department of Justice, Criminal Law Section
Attorney General of Canada
234 Wellington Street, Room 1161
Ottawa, Ontario KIA OH8
Tel:
613-957-4763
Fax: 613-954-1920
Email: rfrater('@.iustice.gc.ca
Noel et Associes
111, rue Champlain
Gatineau, Quebec J8X 3Rl
Tel:
819-771-7393
Fax: 819-771-5397
Email : o.landrv@.noelassocies.com
Ottawa Agents for the Intervener,
theAttomey General of Quebec
BETWEEN:
BRIAN CONCEPTION
~and~
and
PENETANGUISHENE
and
Intervener
and
Intervener
APPELLANT'S FACTUM
INDEX
PART I: STATEMENT OF THE FACTS
1
1) Overview
1
2) Procedural history of this case
2
3) The Criminal Code regime governing the hospitalization of UST accused
4
4) A brief legislative history of UST treatment orders under Part XX.1 of
the Code
5
-ii-
INDEX (cont'd)
5) Jails are an unacceptable waiting area for UST accused in acute need
of treatment
7
6) Ontario's inadequate response to the chronic forensic bed shortage
10
7) Jails are not adequate substitutes for hospitals in administering the
forcible treatment of UST accused
12
8) The deleterious effects of delays in treating the unfit mentally ill accused
13
9) The lack of standard criteria governing forensic bed allocations
15
10) Judicial efforts to superintend delays in implementing
transfer-to-hospital orders
17
PART II: POINTS IN ISSUE
25
(i) Did the Court of Appeal err in holding that the "consent" required
of a hospital by s. 6 72.62 of the Code relates to the timing of the s. 6 72.58
order and not just to the treatment concerns identified by s. 672.59?
25
(ii) In the alternative, does requiring a hospital's "consent" for the issuance
of a s. 6 72.58 order violate s. 7 of the Charter?
25
PART III: ARGUMENT
26
I. Introduction - mootness and sequencing of issues
26
II. The "consent" requirement of s. 672.62 was satisfied in this case
26
1) Section 672.62 requires only that the treatment-provider endorse the
appropriateness and effectiveness ofthe proposed treatment
26
2) While there was evidence of the Hospitals' consent, there was no
evidence to support delaying the commencement of the s. 672.58
disposition
28
III. The "consent" requirement ins. 672.62(1)(a) violates s. 7 ofthe Charter
1) Introduction
31
31
-iii-
INDEX (cont'd)
2) Provincial jurisdiction over "health" does not insulates. 672.62(1)(a)
from Charter review nor does it support a broad interpretation of the
"consent" requirement
31
3) Section 672.62 does not accord with the principles of fundamental justice
34
(a) Unconstitutional delegation of the decision to issue as. 672.58
treatment order
34
(b) The hospitals' decision-making power is arbitrary and vague
35
4) Section 1 of the Charter cannot justify the violation created by
s. 672.62's vague "consent" requirement and/or the lack of procedural
fairness
37
5) Constitutional Remedy
39
PART IV: SUBMISSIONS CONCERNING COSTS
40
PART V: ORDER REQUESTED
40
PART VI: AUTHORITIES TO BE CITED
41
PART VII: RELEVANT LEGISLATIVE PROVISIONS
43
APPELLANT'S FACTUM
Page 1
Part I - Statement of Facts
BETWEEN:
BRIAN CONCEPTION
-and-
10
and
PENETANGUISHENE
and
Intervener
and
20
Intervener
APPELLANT'S FACTUM
PART I: STATEMENT OF THE FACTS
1)
1.
Overview
This case concerns the treatment of mentally disordered Canadians caught up in the
criminal justice system. Unfit accused in need of treatment are typically remanded to wait in
an Ontario jail if a forensic bed is not available. Because of government business decisions, the
supply of forensic hospital beds has not kept pace with the demand for them. However,
30
Ontario jails are not equipped to handle the special needs of this acutely ill population of
APPELLANT'S FACTUM
Page2
inmates. Mentally ill persons in Ontario jails have been the victims of homicide and suicide
while awaiting access to forensic mental health services.
2.
This appeal is the Court's first opportunity to address the proper interpretation of the
Code provisions relating to treatment orders and the constitutional implications of limiting
judicial supervision of that process. The narrow legal question on appeal is whether the
provincial court has jurisdiction to supervise the delays in giving restorative treatment to
those mentally disordered accused who have been found unfit to stand trial ("UST") and who
must remain in custody until they can be returned to a state of fitness and continue with the
criminal process.
10
Should the court be allowed to supervise the decision by hospital
administrators concerning if and when a UST accused should be treated to restore fitness? The
Appellant submits the answer is yes. The Court of Appeal disagreed.
2) Procedural history of this case
3.
The Appellant was arrested for a charge of sexual assault on April12, 2010. On April
13, 2010, he was taken to a specially designated mental health court ("102 Court") at the
Ontario Court ofJustice in downtown Toronto. The Crown successfully applied to the presiding
judge, Justice Mary Hogan, to have the Appellant found UST. The Crown then brought an
application for an order under s. 672.58 authorizing up to 60 days of a specified psychiatric
treatment aimed at restoring the Appellant's fitness. After hearing from Dr. Waisman 1 that the
statutory criteria had been met, Hogan J. granted the application.
20
4.
Despite having consented to administer the treatment ordered by Hogan J., CAMH
indicated that ie could not accept the Appellant for at least 6 days. Acting on the evidence
1
A provincially-licenced psychiatrist employed by the Centre for Addiction and Mental Health
("CAMH").
2
As the evidence made clear, CAMH was speaking on behalf of both itself and the
Penetanguishine Mental Health Centre ("PMHC").
APPELLANT'S FACTUM
Page3
adduced at the hearing, Hogan J. issued the treatment order and directed that the Appellant
be taken "forthwith" to a mental hospital- "CAMH or its designate 3".
-Reasons for judgment of Court ofAppeal, Appellant's Record. Vol. 1. at p. 95 (paras. 2 and 3);
- Transcript of Proceedings before Hogan]., Appellant's Record. Vol. 1. at pp. 132-138
5.
CAMH and PMHC immediately launched an appeal against the treatment order to the
Court of Appeal for Ontario pursuantto s. 672.72 of the Code. Under s. 672.75 of the Code, the
filing of the appeal automatically suspended the operation of the s. 672.58 order. However,
the Hospitals applied to Lang J.A. 4 three days later for an order allowing them to treat the
Appellant immediately. The application was granted. After the treatment set out in Hogan J.' s
10
order, the Appellant was made fit and the charge against him was stayed in June, 2011.
-Notice ofAppeal to Court ofAppeal for Ontario, Appellant's Record. Vol. 1, at pp. 55-58;
-Notice ofApplication to Court ofAppeal for Ontario, Appellant's Record. Vol. 1. at pp. 59-65;
-Endorsement of Lang ].A., Appellant's Record. Vol. 1. at pp. 66-67
6.
Although the lis involving the Appellant was moot, the Court of Appeal heard the
Hospitals' appeal of Hogan J.'s order on December 14, 2011. The Court of Appeal was
presented with a brief of the legislative history of Part XX.1 's treatment order regime, a brief
of some recent government reports and academic writings, and a collection of fresh evidence
materials from a variety of experts 5• On May 24, 2012, the Court allowed the appeal and set
aside the order.
-Reasons for judgment ofCourt ofAppeal, Appellant's Record. Vol. 1. at pp. 97 and 98-99 (paras.
9 and 15-16)
20
7.
The Appellant appeals against the decision of the Court of Appeal. The Appellant
submits (1) that there was no basis to interfere with Hogan J.'s determination that the
3
The "designate" is a reference to hospitals like PMHC with whom CAMH had established
relationships to pool their supply of forensic beds for the purpose of satisfying Part XX.1 orders.
4
5
Sitting as a single judge under s. 672.76(2)(a) of the Code.
As the "legislative facts" were the subject of the paper record introduced for the first time on
appeal, this Court is free to take its own view of that fresh evidence.
APPELLANT'S FACTUM
Page4
"consent" requirement ins. 672.62(1)(a) had been met in this case and (2) that if a proper
construction of s. 672.62(1)(a) allows hospitals to decide unilaterally if or when a treatment
order may issue, s. 672.62(1)(a) infringes s. 7 of the Charter.
-Notice ofAppeal, Appellant's Record. Vol. 1. at pp. 80-83
3) The Criminal Code regime governing the hospitalization of UST accused
8.
When a mentally disordered accused has been found UST, the criminal process comes
to a halt until the accused's fitness is restored. Part XX.1 authorizes courts to do one of three
things as a consequence of a UST finding:
(i)
Under s. 6 72.45, the court may immediately hold a disposition hearing in which
it may make any ofthe dispositions authorized by s. 672.54 ofthe Code.
(ii)
Under ss. 6 72.46 and 6 72.4 7, the court may defer the disposition hearing to the
Review Board and may either continue the accused's bail or remand the accused
to the custody of a hospital.
(iii)
Under s. 672.58, the court may make a disposition 6 that the accused be sent
somewhere to receive up to 60 days of forcible treatment for the purpose of
restoring their fitness.
10
9.
Whichever one of these orders a court chooses to make, a party has a right of appeal to
the provincial court of appeal on any question of law, f(;!,ct or mixed law and fact: s. 672.72.
Accordingly, as a "party'' to as. 672.58 disposition (pursuant to s. 6 72.1), a hospital may appeal
20
against a treatment order and thereby immediately suspend the effect of that order pending
review by an appellate court: s. 672.75.
10.
Only a prosecutor may apply for a s. 672.58 treatment order.
The treatment
contemplated by such an order may not exceed a period of 60 days: s. 6 72.58. It may not
include psychosurgery or electroconvulsive therapy: s. 672.61. Unlike assessment orders,
there is no provision authorizing an extension of this 60-day period. The order may not be
granted unless the court has heard evidence from "a medical practitioner that a specific
6
Pursuant to s. 672.1, "disposition" includes orders under either s. 672.54 or s. 672.58.
APPELLANT'S FACTUM
PageS
treatment should be administered to the accused for the purpose of making the accused fit to
stand trial": s. 672.59. The expert opinion must include statements that:
11.
10
(i)
the specific treatment will likely make the accused fit within 60 days;
(ii)
without the treatment, the accused will likely remain UST;
(iii)
the risk of harm from the proposed treatment is not disproportionate to the
proposed benefits; and
(iv)
the proposed treatment is the least restrictive and least intrusive alternative for
restoring the accused's fitness.
The consent ofthe accused is not required for as. 6 72.58 treatment order: s. 6 72.62 (2).
However, pursuant to s. 672.62(1):
No court shall make disposition under section 672.58 without the consent of
(a)
the person in charge of the hospital where the accused is to be treated; or
(b)
the person to whom responsibility for the treatment of the accused is assigned
by the court.
There are no other provisions or regulations defining how a person in charge of the hospital
is to decide if or when to "consent".
12.
Although dispositions (i.e., including s. 672.58 orders) are presumed to take effect on
the day upon which they are made, s 672.63 empowers a court to specify a later date for the
commencement of a disposition.
20
4) A brieflegislative history ofUST treatment orders under Part.XX.1 of the Code
13.
The legislation reflects Parliament's desire to have judges supervise involuntary, court-
ordered treatment.
14.
The treatment orders contemplated by s. 672.58 were created as part of the package
of 1992 post-Swain amendments to the Criminal Code. In describing the legislative purpose
APPELLANT'S FACTUM
Page6
behind the new provision allowing for an UST accused to be forcibly treated to restore their
fitness, the Minister of Justice stated:
We have concluded thatthe general rule prohibiting involuntary treatment of mentally
disordered accused ought to be preserved. However, subject to stringent safeguards,
the bill permits a court to order involuntarytreatmentto make the accused fit to stand
trial, thereby avoiding a potentially lengthy period of detention.
Similarly, the Assistant Deputy Minister said:
So the judge does it only if it is quite clear, immediately clear that the person has to be
treated in order to help him or her.
10
Parliament enacted s. 672.58 to help avoid the unnecessary detention of a UST accused who
would otherwise benefit from immediate treatment.
-House of Commons Debates (4 October 1991) at pp. 3297-98 (Hon. Kim Campbell);
- Minutes of Proceedings and Evidence of the Standing Committee on justice and the Solicitor
General, House of Commons, Issue No.7 (9 October, 1991) at p. 7:10 (Daniel Prefontaine)
15.
The potential benefits of quickly administering treatment to a UST accused was
documented by expert witnesses who testified before the House of Commons' Standing
Committee on Justice:
20
We can say, from our experience, that from 60%-65% of the cases referred to us
remain unfit to stand trial within five days it takes us to do the assessment. According
to this bill, the five days prescribed for the assessment will begin once the patient has
been admitted to the hospital or other location where the assessment is to take place.
Our experience tells us that atthe end ofthe five days, from 60o/oto 65% of the patients
we receive are still unfit to stand trial. We also know, however, that around 80% of
those people will become fit within 30 days. Approximately 98% of our patients
become fit to stand trial within 60 days.
Given the significant percentage of unfit accused who could be rendered fit within only 5 to 30
days, Parliament recognized that the timing of the forced treatment was an important issue
to be decided by the courts.
30
- Minutes of Proceedings and Evidence of the Standing Committee on justice and the Solicitor
General, House of Commons, Issue No.8 (22 October, 1991) atpp. 8:32-33 (Dr. Lionel Beliveau)
and at pp. 8:34 & 8:44-45 (Dr. Paul-Andre Lafleur)
APPELLANT'S FACTUM
Page7
5) Jails are an unacceptable waiting area for UST accused in acute need of treatment
16.
UST accused 7 in need of treatment are sent to an Ontario jail if a forensic bed is not
immediately available. Few jails are equipped to handle the special needs of this acutely ill
population of inmates. There are only nine Special Needs Units in Ontario's jails which can
provide extra support for inmates with mental illness or developmental disability. As is often
the case, if there is no space in the Special Needs Unit or no Special Needs Unit at all, the
mentally ill accused is held in a segregation cell.
-Affidavit of Linda Ogilvie, Appellant's Record. Vol. 3, at pp.131-132 (para. 5);
-Cross-examination of Linda Ogilvie, Apoellant's Record. Vol. 3, at p. 234, II. 13-19;
-Affidavit of Eduardo Almeida, Appellant's Record. Vol. 2, at p. 4 (para. 9)
10
17.
Some mentally ill inmates who are placed in segregation experience an exacerbation
of their symptoms. In contrast to the constant supervision of actively psychotic detainees at
CAMH's Assessment and Treatment Unit ("ATU"), there is no constant monitoring of mentally
ill inmates at any of Ontario's jails. Unlike the "therapeutic quiet" offered to agitated psychotic
patients in a psychiatric facility, the isolation conferred by solitary confinement in an Ontario
jail is neither therapeutic nor quiet. At the Don Jail, for example, segregation cells are located
directly beside the ranges, unsheltered from the constant noise of inmates and guards yelling
and banging metal doors. As described by a veteran jail guard: "Typically segregation has the
smell of feces. There is always screaming and yelling. There's always banging."
20
-Affidavit of Graham Glancy, Appellant's Record. Vol. 5, at p. 2 (para. 4);
-Affidavit of Philip Klassen, Appellant's Record. Vol. 4. at p. 7 (para. 18);
-Cross-examination of Philip Klassen, Appellant's Record. Vol. 4. at p. 92, I. 15 - p. 98, I. 16;
-Cross-examination of Eduardo Almeida, Appellant's Record, Vol. 3. at p. 81, I. 23- p. 82, I. 13;
p. 110, I. 4- p. 113, I. 7
18.
During the period in which the treatment is delayed, the psychotic UST accused will
continue to experience the severely debilitating effects of their mental illness while they wait
in jail. As explained in Leiper's article:
7
Who have not yet been able to have a bail hearing or who have been ordered detained.
APPELLANT'S FACTUM
Page8
Part I · Statement of Facts
... Haney observes that prison for people with special needs is an "especially painful,
intolerant and even intolerable place". This phenomenon has been well documented
in Canada and internationally. Hussein adds a human context countering those who
might allow more legalistic description to obscure some of the harsh realities. The
court outreach worker who acts as a liaison between families and mentally disordered
accused in detention provided an affidavit in Hussein as to the beatings and violence
suffered by clients with mental illness. The worker had seen injuries suffered by those
clients and observed some "horrific" incidents wholly at odds with notions of human
dignity. In another case that formed part of the record in Hussein, a lawyer who
regularly acts for mentally disordered offenders described a client who was so ill that
the detention authorities contacted the lawyer to see if she could secure earlier
admission of the client to hospital. Another of that lawyer's clients who was unable to
"assimilate" into the prison culture of the detention centre was seriously assaulted by
another inmate and suffered a fractured nose, contusions and lacerations serious
enough to require stitches.
10
Dr. Glancy similarly commented:
If it was my kid that was in jail, my 19-year old son or your ... 19-year old brother and
he was naked in a segregation cell psychotic, I would say-and I don't know what Dr.
Klassen means by "number of days" but I would want them taken out tomorrow to a
hospital to be treated. So if it's 6 days, 13 days, 30 days, being psychotic and naked in
that segregation cell and having to be transported in the paddy wagon with other
inmates who may not appreciate that they are psychotic and take a swing at them, I
would want them treated as soon as possible. So Dr. Klassen's number of days would
make a difference.
20
Unlike officials who may measure forensic treatment delays in units of weeks or days, the
mentally ill accused experiences the effects of that delay by the minute.
-Cross-examination of Dr. Graham Glancy, Appellant's Record. Vol. 4, at p. 117, I. 21- p. 118,
1.10;
-Leiper, supra at pp. 164-165
30
19.
Severely mentally ill offenders are extremely vulnerable if housed in jail facilities with
other inmates. A recent report of the Federal Standing Committee on Public Safety and
National Security found that mentally disordered inmates are frequently the victims of
intimidation and violence and are more likely than other inmates to attempt suicide or injure
themselves. Mr. Almeida, a senior jail guard, attested to the frequency with which mentally
disordered individuals are assaulted in the jail environment: Affidavit of Eduardo Almeida,
infra at para. 8. Dr. Glancy, a psychiatrist who regularly works inside Ontario's jails, also
testified about the victimization of mentally disordered accused within the remand setting:
APPELLANT'S FACTUM
Page9
Affidavit of Dr. Graham Glancy, infra at para. 4. As the Court of Appeal recently recognized in
R. v. Phaneuf infra:
[T]here can be no doubt that the incarceration of mentally ill persons in a jail setting
risks further deterioration of their mental state and potentially places them at real risk
of physical harm.
Indeed, mentally ill persons in Ontario jails have been the victims of homicide and suicide
while awaiting access to forensic mental health services.
-Affidavit of Graham Glancy, Appellant's Record. Vol. 5, at p. 2 (para. 4);
-Affidavit of Eduardo Almeida, Appellant's Record. Vol. 2, at pp. 3-4 (para. 8);
- Cross-examination of Eduardo Almeida, Appellant's Record, Vol. 3. at p. 64, II. 7 -13; p. 90, I.
2 p. 92, I. 15;
- R. v. Phaneuf, [2010] O.J. No. 5631 at para. 28 (C.A.);
-Reasons for judgment ofCourt ofAppeal, Appellant's Record. Vol.l, at pp. 101-102(paras. 2932);
- Standing Committee on Justice and Human Rights, Review of the Mental Health Disorder
Provisions of the Criminal Code, June 2002;
- Canada, Legislative Assembly, Standing Committee on Public Safety and National Security,
"Mental Health and Drug and Alcohol Addiction in the Federal Correctional system," (December
2010) at p. 17;
- Leiper, supra at 165
10
20
20.
There are far fewer opportunities for the mentally ill accused to obtain psychiatric help
at one of Ontario's jail facilities than at one of Ontario's forensic psychiatric hospitals. At
Maplehurst Correctional Complex (Maplehurst), there are only 3.5 days of psychiatric
availability for approximately 1,100 inmates. There are currently no physicians or mental
health nurses on duty after 9:00p.m. at any jail, and there is generally very limited health care
available during the night. At Maplehurst and Central North Correctional Centre (CNCC) there
are two nurses on the night shift to service over 1000 inmates. At Metro West Detention
Centre there is only one nurse in the institution during the evening. At Hamilton-Wentworth
Detention Centre there is no medical staff on duty during the night hours. If a mentally ill
30
inmate is acting out during the overnight shift, such as by banging, screaming or throwing
themselves around in their cell, jail guards will try to calm them down. The agitated mentally
ill inmate would not be taken out to the hospital. If need be, the guards would restrain the
inmate and may even put a hockey helmet on them to protect them from self harm. At
Maplehurst and CN CC, even individuals with acute needs (e.g., those on suicide watch) are only
APPELLANT'S FACTUM
Page 10
checked by the nurse once per night shift. The remainder of the overnight monitoring is left
to correctional staff. Guards in Ontario jails are expected to have evaluative skills for observing
offender behaviour and for discerning which information should be reported to the jail's
medical staff. However, unlike designated mental health facilities in Ontario where staff
members are trained to chart observations of the forensic patients, most jail guards have
received little or no training on how to make or record such observations. Those observations
are not only relevant to the inmate's daily care, but also to the ultimate determination of
whether that inmate's fitness has been restored.
- Cross-examination of Dr. Phillip Klassen, Appellant's Record. Vol. 4, at p. 111, I. 7 -12;
-Cross-examination of Linda Ogilvie, Appellant's Record. Vol. 3, at p. 224, I. 15- p. 225, I. 9; p.
230, I. 22- 231, I. 11; p. 234, I. 10- p. 236, I. 20;
-Affidavit of Dr. Graham Glancy, Appellant's Record. Vol. 5, at p. 2 (para 6);
- Cross-examination of Graham Glancy, Appellant's Record. Vol. 5, at p. 26, II. 3-17;
-Affidavit of Eduardo Almeida, Appellant's Record. Vol. 2, at pp. 2 and 4 (paras. 6 and 10);
-Cross-examination of Eduardo Almeida, Appellant's Record. Vol. 3, at p. 12, II. 4-17; p. 31, I.
23 p. 32, I. 12; p. 32, I. 17 -p. 33, I. 18; p. 35, I. 3 - p. 44, I. 12; p. 73, I. 11 - p. 74, I. 17; p. 87, II.
2 -p. 88, I. 9; p. 108, I. 25- p. 100, I. 3;
-Affidavit of Dr. Alexander Simpson, Appellant's Record. Vol. 6, at p. 156 (paras. 132-136)
10
6) Ontario's inadeguate response to the chronic forensic bed shortage
20
21.
While the fresh evidence leaves no doubt that Ontario has increased its investment in
forensic mental health services in the past decade, the evidence in this Case equally shows that
Ontario's investment is both "too little" and "too late".
22.
Ontario's population of mentally disordered offenders under the Review Board's
authority has continued to increase at a rate of about 5% per year since the mid-1990s such
that there are now over 1,500 ORB patients (as compared to only 400 back then). Typically,
each of these "new" NCR accused occupies a forensic mental health bed for several years,
making it unavailable for shorter forensic stays at a hospital. Because of deliberate business
decisions, the supply of forensic beds had not kept pace. Likewise, Ontario has failed to meet
the ongoing need for more community-based mental health resources. This shortage has
30
added demand pressure on the more secure mental health beds (as there are fewer community
placements in which to cascade mentally disordered offenders out of forensic beds).
APPELLANT'S FACTUM
Page 11
-Cross-examination of Dr. Alexander Simpson, Appellant's Record. Vol. 8. at pp. 73-80 and 111;
- Cross-examination of Brian Davidson, Appellant's Record. Vol. 6, at p. 44, l. 14- p. 52, l. 18;
p. 64, I. 6- p. 66, l. 18; p. 68, I. 21- p. 77, l. 14; p. 115, l. 11- p.116, 1.13
23.
The current complaints by hospital administrators about resource limitations are
nothing new. In 1991, the provinces were unhappy with the financial consequences of
complying with the hospital orders provided by Part XX.1 of the Code:
Some provinces are concerned about the financial repercussions these provisions may
have, even if they only apply in cases where treatment is urgently required.
We believe that the hospital order provisions in the bill will not have a serious impact
on the financial resources of the provinces. However, considering their concerns, I
have agreed to postpone the coming into force of these provisions for two or three
years ...
10
-House of Commons Debates (4 October 1991) at p. 3299 (Hon. Kim Campbell)
24.
The dollar amounts advanced by Ontario as evidence of its more recent efforts to
address the chronic shortage of forensic mental health beds must be viewed in context. For
example, while Ontario's total direct annual funding for services to individuals with mental
illnesses or addictions was approximately$2.5 billion in 2009/2010, that global figure relates
to a large portfolio of services, of which only a portion focuses on forensic mental health
services. Although this budget has increased "almost every year by a bit': there was no
20
evidence that this increase has been keeping pace with the increase in the population which
the budget must service. In August 2010, Ontario's Select Committee on Addictions and Mental
Health called for more funding directed to community support for the mentally ill, suggesting
that the Government's "bit" annual increases have not in fact been near enough to meet the
increases in demand:
30
The number offorensic clients has steadily increased over the past several years. This
trend had resulted in an increase in demand for forensic services. This increase was
predicted in a provincial forensic survey titled Forensic Psychiatric Clients in Ontario
(Rice, Harris, Cormier, Lang, Coleman and Krans, 1999). The exponential increase in
forensic bed demand and utilization was also predicted to have a significant impact on
the availability of mental health beds for civilly committed clients. Although there has
been an increase in forensic beds and services provincially (e.g., 97 additional forensic
beds since 1995, court diversion, a Mental Health Court), the demand exceeds supply
for forensic beds and services.
APPELLANT'S FACTUM
Page 12
Despite the persistence of the bed shortage crisis and the credible forecasts of hospital
administrators that demand continues to rise "exponentially", there is no evidence that the
modest supply of additional forensic beds created by Ontario within the past few years will be
anywhere near enough to remedy the expected shortfall into the future.
-Affidavit of Brian Davidson, Appellant's Record. Vol. 6. at pp. 5 and 7-12 (paras.12, 13, 20, 26,
27, 28, 32 and 34-35);
-Cross-examination of Brian Davidson, Appellant's Record. Vol. 6, at p. 44,1.14- p. 52, 1.18;
p. 64, I. 6- p. 66, I. 18; p. 68, I. 21- p. 77, I. 14; p. 115, 1. 11- p. 116, I. 13;
-Cross-examination of Dr. Alexander Simpson, Appellant's Record. Vol. 8. at pp. 73-80 and 111;
-Ontario, Legislative Assembly, Select Committee on Mental Health and Addictions, "Navigating
the journey to Wellness: The Comprehensive Mental Health and Addictions Action Plan for
Ontarians" (August 2010) at pp. 7, 11 and 23-24;
-janet Leiper, "Cracks in the Facade of Liberty: The Resort to Habeas Corpus to Enforce Part
XX.1 of the Criminal Code" (2009), 55 C.L.Q. 134 at 144
10
25.
There was no evidence in the record on appeal suggesting that any of Ontario's recent
investments in forensic mental services included efforts to improve the facilities or services
available to severely mentally ill accused who are forced to wait in jail pending transfer to a
hospital for court-ordered treatment.
20
7) Jails are not adequate substitutes for hospitals in administering the forcible
treatment of UST accused
26.
None of the expert witnesses who gave evidence in this case supported the idea of
forcibly treating mentally ill offenders in jail. They all agreed that jails are not the place to be
administering compulsory mental health treatment. Though some individuals may acquiesce
to the treatment prescribed by as. 672.58 order, it is not uncommon for actively psychotic
individuals subject to resist such treatment. In those cases, the anti-psychotic drug will have
to be administered forcibly by injection. Even if Ontario jails had the legal authority to do so 8 ,
jails are not equipped to forcibly administer psychiatric medications due to the lack of
adequate training, monitoring capabilities, and necessary equipment. For example, during the
night shift, if there is a nurse on duty, that nurse is responsible for monitoring the health of
8
0ntario jails are not Schedule 1 facilities under the Mental Health Act, and are therefore not
authorized to forcibly administer psychotropic medications.
APPELLANT'S FACTUM
Page 13
hundreds of inmates and cannot provide the level of supervision required for patients being
forcibly treated with anti-psychotic drugs. Many anti-psychotic medications can produce
serious adverse reactions which must be treated immediately.
-Affidavit of Dr. Phillip Klassen, Appellant's Record, Vol. 4, at p. 5 (para. 13);
-Cross-examination of Dr. Phillip Klassen, Appellant's Record, Vol. 4. at p. 44, 11. 16-20; p. 104,
l. 10- p. 107, l. 6;
- Cross-examination of Linda Ogilvie, Appellant's Record. Vol. 3. at p. 239, l. 9- p. 241, l. 19;
-Affidavit of Dr. Graham Glancy, Appellant's Record. Vol. 5. at p. 2 (para 5);
-Cross-examination of Graham Glancy, Appellant's Record, Vol. 5, at p. 31, II. 9-13;
-Affidavit of Dr. Alexander Simpson, Appellant's Record. Vol. 6, at p. 130 (para. 6)
10
27.
According to Dr. Simpson, the primary way for dealing with an actively psychotic
person is through clinical engagement. Effective treatment of an active psychosis focuses on
trying to diffuse the intensity of the psychotic inmate's fear, anxiety, and anger. Forensic
hospitals, like CAMH, can draw upon anti-psychotic medication or upon acutely sedating
medication if reassurance and engagement has not settled the patient's agitation. Hospitals
can further rely on their high levels of staffing to immediately move an agitated psychotic
patient to a lower stimulus setting (e.g., seclusion) or to impose physical and mechanical
restraints for short periods oftime. To help reduce the risk of the agitated psychotic patient
causing harm to themselves, restraint requires special equipment (e.g., straps covered in cloth
20
or leather as opposed to handcuffs). Jails are not staffed for "clinical engagement" nor
equipped with lower stimulus settings or proper restraints.
- Cross-examination of Dr. Alexander Simpson, Appellant's Record. Vol. 8. at p. 23, I. 23 - 25,
l. 22; p. 52, 1. 4 p. 53, I. 11; p. 152, 1. 8 p. 157, I. 6
8) The deleterious effects of delays in treating the unfit mentally ill accused
28.
Treatment orders under s. 672.58 of the Criminal Code are an exercise of the court's
power to compel an individual to take powerful anti-psychotic medication in the name of the
public interest The orders are limited to offenders who are so severely mentally ill that they
fall below the minimal cognitive threshold required for someone to be "fit to stand trial". In
deciding to issue as. 672.58 treatment order, a court will have been convinced that (1) the
30
accused's mental illness is in acute need of treatment, and (2) the treatment can at least
APPELLANT'S FACTUM
Page 14
restore the mentally ill accused to a state of fitness. It is this narrow class of severely mentally
ill offenders who, like the Appellant, are being forced to sit untreated in jail for days or weeks
until facilities like CAMH decide that they will "consent" to the issuance of a treatment order.
29.
The delay in treating these individuals has a serious effect on their life, liberty and
security of the person interests. The overwhelming majority of accused who are the subject
of a s. 672.58 order suffer from a psychotic illness, such as schizophrenia, schizo-affective
disorder, or bipolar disorder. Some individuals who have become psychotic and who do not
receive appropriate treatment for a period of time may experience a deleterious effect on their
recovery once treatment is eventually initiated. It is a given in the treatment community that
10
individuals who are psychotic must be treated as soon as possible. The longer a person is left
untreated, the more resistant their illness will become to later treatment. Although Dr. Klassen
testified that in most cases the degree of recovery would not be impacted by a short delay in
treatment, he acknowledged that for some severely psychotic individuals delayed treatment
could have some impact. For individuals experiencing their first psychotic episode, research
studies indicate that delaying anti-psychotic treatment even a matter of days can have an
adverse effect on treatment outcome.
-Cross-examination of Dr. Graham Glancy, Appellant's Record. Vol. 5. at p. 67, II. 24- p. 69, I.
7, p. 83, I. 9 p. 85, I. 22;
-Affidavit of Dr. Phillip Klassen, Appellant's Record. Vol. 4, at p. 3 (paras. 7 -8);
-Cross-examination of Dr. Phillip Klassen, Appellant's Record, Vol. 4, at p. 73, II. 8-19; p. 116,
20
I. 7
30.
p.117, I. 23
Leaving aside the long-term medical impact oftreatment delay, all experts agree that
a patient left untreated suffers legally. The accused, along with the public, victims, and others
witnesses must all wait until fitness is restored before the criminal process can continue. In
the context of as. 6 72.58 treatment order, the issue is whether the treatment has sufficiently
ameliorated those symptoms to a point whether the accused has become fit and can therefore
continue with the criminal process. Experts accept that the amelioration of such symptoms
may begin in a matter of days and can be sufficiently overcome within only a few weeks.
Indeed, Parliament relied upon that expert evidence in determining that the maximum
APPELLANT'S FACTUM
Page 15
duration of these orders should be 60 days.
-Affidavit of Dr. Graham Glancy, Appellant's Record. Vol. 5. at p. 2 (para. 6);
- Cross-examination of Dr. Graham Glancy, Appellant's Record. Vol. 5, at p. 92, I. 15 - p. 97, II.
11;
-Cross-examination of Dr. Phillip Klassen, Appellant's Record. Vol. 4. at p.107, I. 17- p.111,
l. 12
9) The lack of standard criteria governing forensic bed allocations
31.
Neither the Government or its designates (e.g., CAMH) have created a mechanism
allowing for any form of procedural fairness for those forensic patients whose interests are
10
implicated by the hospitals' decisions on the issues of consent and prioritization. There is
nothing in any policy or guideline requiring hospital administrators responsible for such
decisions to be impartial as between the competing interests at stake. The Criminal Code does
not define who the "person in charge" of the hospital is, nor does it speak to the issue of an
administrator delegating the s. 672.62 "consent" decision to another person. There is nothing
in the Code preventing an independent designated hospital from delaying consent for weeks,
if not months, due to claims of inadequate forensic resources. There is simply no standardized
protocol for how designated hospitals in Ontario must decide if or when to consent to a s.
672.58 treatment order nor any process for ensuring that such a protocol is followed.
-Cross-examination of Dr. Alexander Simpson, Appellant's Record. Vol. 8. at p.132, I. 2- p. 133,
I. 20, p. 136, II. 1-5; p. 137, I. 18- p. 141, I. 24;
-Cross-examination of Dr. Phillip Klassen, Appellant's Record. Vol. 4, at p. 80, l. 46- p. 81,1.10
20
32.
All of Ontario's designated hospitals are public hospitals under the Public Hospitals Act.
These mental hospitals are operated by independent hospital corporations who receive
funding from the Ontario Government through Local Health Integration Networks. The
Government does not own, operate, govern or manage designated hospitals. Those hospitals
are autonomous entities, responsible for their own operational decisions and accountable to
their own corporate boards. The evidence shows 9 that the Government has chosen to not
9
Contraryto the impression taken in the Court below: see paras. 60 and 61 of the Reasons for
judgment of Court ofAppeal.
APPELLANT'S FACTUM
Page 16
regulate the criteria for how designated hospitals should decide whether to consent to a s.
672.58 treatment order or how those hospitals should prioritize forensic placements.
Likewise, there is no criteria in the Public Hospitals Act.
-Affidavit of Brian Davidson, Appellant's Record. Vol. 6, at pp. 3-4 (para 7);
-Cross-examination of Brian Davidson, Appellant's Record. Vol. 6, at p. 26, I. 24- p. 27, 1. 11
33.
Hospitals have their own ethical and policy guidelines to manage limited resources,
including the prioritization of who receives access to limited beds.
Some hospital
administrators, such as Dr. Klassen (a witness called by the Crown in this case), see themselves
as owing no duty of care to those waiting in prison for admission to their hospital. Others, such
10
as Dr. Simpson, characterize a person waiting in jail for placement in a forensic bed as CAMH's
responsibility, even though that "responsibility" does not extend to ensuring that the person
in jail receives proper care while waiting for that bed. Significantly, the duty owed to a jailed
patient-in-waiting was perceived as being different from that owed to a person who might
arrive at the hospital's emergency department in acute need of treatment. Only in the latter
case would the hospital's ethical duty prevent it from turning away the patient- it would find
room for immediate admission of an emergency room patient in acute need of treatment.
-Cross-examination of Dr. Alexander Simpson, Appellant's Record. Vol. 8, at p. 115, I. 19 p.
122, I. 16;
- Cross-examination of Dr. Philip Klassen, Appellant's Record. Vol. 4, at p. 45, I. 7 p. 58, I. 17
20
34.
Although he is designated as the Person in Charge at CAMH, Dr. Simpson delegates his
day-to-day decision making on whether to consent to as. 6 72.58 treatment order to Mr. Arne
Nes, CAMH's court liaison. Mr. Nes is not a psychiatrist. However, in discharging his duties he
has access to the only tool necessary for CAMH to decide whether it will" consent" to treatment
orders; namely, the Provincial Bed Management Registry. This Registry allows Mr. Nes to
determine if and when a bed will be available at CAMH or any other facility. There is no legal
requirement for Ontario's forensic hospitals to accept a UST accused for treatment when the
Registry indicates it has a bed available.
-Cross-examination of Dr. Alexander Simpson, Appellant's Record. Vol. 8, at p. 30, I. 4- p. 34,
I. 14, p. 37, I. 10- p. 38, I. 1
APPELLANT'S FACTUM
35.
Page 17
Part I · Statement of Facts
In October, 2010, CAMH created a Statement of Principles and Practices for Admission
Prioritization ("Prioritization Statement"). The Prioritization Statement was a further attempt
by CAMH 10 to create some uniformity in its approach to deciding how to prioritize the people
waiting in jail for admission to CAMH. No guidance is provided by the Province's Mental Health
Act or the Public Hospitals Act or the Criminal Code on the factors to be considered when
CAMH decides if and when to "consent" to as. 672.58 order.
-Cross-examination of Dr. Alexander Simpson, Appellant's Record. Vol. 8, at p. 15, I. 11- p. 18,
I. 4; p. 54, I. 16 - p. 58, I. 19; p. 122, I. 17- p. 127, I. 8
10) Judicial efforts to superintend delays in implementing transfer-to-hospital orders
10
36.
Courts in Ontario have had to deal with the legal consequences of Ontario's forensic bed
shortage for over 15 years. In her 2009 article reviewing the history of Ontario's habeas corpus
litigation to enforce court-ordered transfers to hospitals under PartXX.1, Janet Leiper11 noted
that "[i]n 1998, one investigative report alleged that on any given day in the previous year
'there were 76 women and men wrongfully held in prison because of a shortage of forensic
beds". In an effort to enforce six of those transfer orders, a lawyer launched multiple habeas
corpus applications on behalf of the six mentally disordered accused. As Leiper describes:
20
30
... Each of the six named applicants ... had been ordered detained, following the
application of the test ins. 672.54 of Part XX.1 of the Criminal Code, to a "designated
hospital" in Toronto. Until the group application for habeas corpus was filed on
February 24, 1998, each individual had instead been detained in a detention centre, not
a designated hospital. In one of these cases, Anthony D., the review board noted that
Mr. D. had been in jail since July 30, 1997 and that he had been seen by a psychiatrist
at two-week intervals while incarcerated in jail... ..
Shortly before the application came to court to be argued, the six applicants
were moved in accordance with their orders and once again, the matter was
determined out of court. Five more detainees were moved from jail to hospital in the
week that followed. The moves were accompanied by announcements of additional
funding for resources. The Health Minister of the day commented that there would be
no "quick fixes" for the problem of insufficient beds and that "long-term analysis and
assessment" would be necessary.
10
The Prioritization Statement applies only to CAMH. There was no evidence that any other
forensic mental hospital in Ontario employs a similar protocol.
11
Formerly counsel to the Ontario Review Board.
APPELLANT'S FACTUM
Page 18
- Leiper, supra at 135, 152-154
37.
In 2003, Charter applications were filed in the Ontario Superior Court of Justice on
behalf of Hussein and Dwornik, two men who had each been ordered to have fitness
assessments pursuant to s. 672.11 of the Code. They had been detained in an Ottawa-area jail
for 32 and 29 days, respectively, awaiting transfers to the Royal Ottawa Hospital for their
fitness assessments. In each case, the courts had ordered the assessments but with a
stipulation in the orders that the accused could be detained in jail until a bed became available
at the hospital. The record filed on those applications showed that, in some cases, the 30-day
assessment orders had expired without the accused ever being transferred from jail to the
10
hospital. Instead, those accused had been returned to court so that the assessment orders
could be extended for a further 30 days to accommodate the hospital's waiting list.
-Leiper, supra at pp. 161-162;
- R. v. Hussein, [2004] O.J. No. 4594 (S.C.)
38.
The legal implications of Ontario's forensic bed shortage arose again in 2004 in another
series of habeas corpus applications concerning the failure by Ontario's mental hospitals to
implement Part XX.l transfer orders. Following a finding of not criminally responsible on
account of mental disorder ("NCR") in 1998 on charges of criminal harassment and prowl by
night, Alessandro Orru was ordered detained at the maximum secure facility at the MHCP. At
Orru's 2004 annual Review Board hearing, the ORB ordered that he be transferred to the
20
medium secure facility in Brockville and that he be afforded community access and gradual
community integration. Four months later, Orru had not been transferred out of the maximum
secure unit at MHCP. He filed for habeas corpus relief in November of 2004. Prior to the
hearing, counsel for the Brockville Hospital wrote to Orru's counsel to advise that other
mentally disordered accused who were incarcerated and receiving no medical treatment were
being accorded priority for admission. By the time of the hearing on December 20, 2004, Orru
had yet to be transferred in accordance with the original disposition. Holding that public
facilities have a legal obligation to make the system work in accordance with the procedures
put in place by Parliament, Glass J. found that Orru's s. 7 Charter rights had been violated and
APPELLANT'S FACTUM
Page 19
ordered that Orru be transferred in accordance with the original disposition.
- Orru v. Penetanguishene Mental Health Centre, [2004] O.J. No. 5203 at paras. 19, 22 and 29
(S.C.);
-Leiper, supra at pp. 156-157
39.
In 2006, a similar habeas corpus application was filed by Michael Pi net, an NCR accused
who had been waiting more than 11 months to be transferred from the maximum secure unit
at MHCP to the medium secure unit at Brockville Hospital pursuant to the ORB's disposition.
Shortly before the habeas application was heard, Pinet was transferred. At the hearing,
counsel for the Crown and for the M0 HLTC argued that the application was moot In rejecting
10
the mootness argument, Justice DiTomaso remarked:
This is the fifth separate judicial proceeding within the last 14 months involving the
inability ofhospitals designated by the Minister of Health and Long Term Care ("MOH")
under PartXX.1 of the Criminal Code to provide persons governed under that part with
a bed space when required.
Given the record of proceedings in four other cases, DiTomaso J. concluded that the MOHLTC
was attempting to pre-empt the application, a tactic which the court "deplored".
- Pinetv. Mental Health Centre- Penetanguishene, [2006] O.J. No. 678 at paras.l and 61 (S.C.);
- Leiper, supra at pp. 158-159
40.
20
In April of2006, Romeo Rosette was brought before 102 Court in Toronto on charges
of assault and threatening. Recognizing that there were grounds to be concerned about
Rosette's fitness, Schneider J. issued an order on April10, 2006, pursuant to s. 672.11, that he
be taken before the end of the next day to CAMH for an assessment . Two days beyond the
term of that order, Rosette's counsel filed a habeas corpus application in the Superior Court
That court remanded the habeas application back to Schneider J. in the Ontario Court ofJ ustice.
By the time that application was heard by Schneider J. on April19, 2006, Rosette was still in
jail. On the application, Dr. Barbaree (the clinical director ofCAMH 12) testified that wait-times
for transfer from jail to hospital had been as long as five weeks. Dr. Barbaree suggested that
the longer wait-times were partially attributable to the decisions in cases like Hussein. In
12
A predecessor of Dr. Simpson who held the position until approximately 2009.
APPELLANT'S FACTUM
Page 20
ruling that Rosette should be transferred from jail to CAMH forthwith, Schneider J. wrote:
10
20
30
The matter of mentally disordered accused waiting inordinate lengths of time prior to
being admitted to hospital for assessment or treatment as ordered pursuant to the
provisions of Part XX.1 of the Criminal Code is unfortunately a problem that has
plagued the courts of this province for a number of years. While the waiting times have
'ebbed and flowed' over the past several years there have always been unacceptable
waits, sometimes as long as 6 weeks, for a hospital bed. A number of judicial decisions
(e.g., R. v. Hussein and Dwornik; R. v. Pinet; R. v. Orru) have all come to essentially the
same conclusion that this situation runs afoul of various Charter guarantees and cannot
be tolerated. The court in Hussein and Dwornik gave the Ministry of Health and Long
Term Care six months to remedy the problem. While some efforts were apparently
made in the wake of this decision any improvements obtained have long since
disappeared.
Most recently the waits for hospital beds have been as long as 5 weeks with no real
cause for optimism that the situation will improve in the near future. Dr. Barbaree
indicated that considerable effort has been put in to resolving the problem but that
now, with the resources remaining static and demand increasing, creative solutions
have been exhausted. The simple fact is that, as a CAMH representative put it at a
hearing before this court last week (and as is common knowledge to all parties), the
demand for hospital beds in the Greater Toronto Area is much greater than the supply.
The court is well aware of the serious and diligent efforts made by Dr. Barbaree and his
staffto receive accused promptly. As the court has heard, 'CAMH can only play with the
hand its [sic] dealt'. It is apparent that there is a serious lack of hospital beds in the
Toronto region. This is a longstanding systemic problem which has precipitated
considerable unpleasant litigation. Dr. Barbaree indicated that, rather than the ideal
80%, his facility is typically running at 103-105% of capacity and, as a result, has
incurred labour complaints. Dr. Barbaree requested, while acknowledging that it was
not a satisfactory situation, that the court, when it makes Orders to CAMH, direct that
the accused be delivered at a minimum 2 weeks hence. While waiting the accused
would remain in jail.
... While an agreement with CAMH had been made which permits the delivery of the
accused to hospital on the following day, the Memorandum of Understanding with
CAMH, consistent with the provisions of the Code and judicial decisions on point,
indicates that the accused is to be delivered to hospital 'forthwith'. To my mind all
accused should be delivered to hospital on a forthwith basis with no 'stop-overs' at a
jail along the way. As indicated earlier, these 'stop-overs' have been not for just several
days but for several weeks.
40
- Transcripts of Proceedings in R. v. Rosette, Exs. D, E, G and H to Affidavit of Dr. Alexander
Simpson, Appellant's Record. Vol. 6, at pp. 189-280; Appellant's Record. Vol. 7, at pp. 1-79;
-Judgment of Schneider J. in R. v. Rosette, Ex./ to Affidavit ofDr. Alexander Simpson, Appellant's
Record. Vol. 7, at pp. 80-88 [reported at [2006] O.J. No. 1608 (C.J.)];
- R. v. Rosete, [2007] 0.]. No. 3273 at para. 34 (C.A.);
- Leiper, supra at pp. 168-169
APPELLANT'S FACTUM
41.
Page 21
In the years following the litigation which culminated in R v. Rosette, CAMH and 102
Court developed a protocol which would allow for most fitness assessments to be conducted
in a room adjacent to 102 Court on the same day that the accused appeared at court for the
assessment order to be made. By moving those fitness assessments out of the hospital, the
demand for forensic beds was reduced and so too were the consequent delays in transferring
other accused from jail to the hospital. Nevertheless, because the annual increase in demand
continued to outpace the intermittent increases in supply, the lack of forensic beds continued
to cause delays in the transfer of mentally disordered accused from jail to hospital.
- Letter from Justice Schneider to Dr. Barbaree, dated February 14, 2007, Ex. 3 to Crossexamination of Dr. Alexander Simpson, Appellant's Record. Vol. 8. at pp. 233-236
10
42.
Bahaeddine Hneihen appeared in 102 Court on March 11, 2010 before Schneider J. (a
month beforetheAppellantappeared in 102 CourtbeforeHoganJ.). FollowingHneihen's brief
psychiatric assessment at court that day, the Crown asked Schneider J. to conduct a fitness
hearing. After Schneider J. had found Hneihen UST, the Crown immediately applied for as.
6 72.58 treatment order. The assessing psychiatrist opined that the proposed treatment was
safe, proportionate and likely to restore Hneihen's fitness within the prescribed 60-day period.
On the basis of that psychiatric opinion, Schneider J. was satisfied that the s. 672.59 criteria
had been met. However, having been told that CAMH would not accept Hneihen for treatment
until potentially almost two weeks later, Schneider J. said:
20
Well, this is, and it is a chronic longstanding consistent problem where every time an
accused is found unfit and a treatment order is applied for and the statutory criteria
are met, there is at the end of that process no bed available. There is always some
delay associated with getting into hospital, and then the question is what sort of a delay
is reasonable? When the delay is a matter of a day or two, all parties seem to be more
or less in agreement that that is probably within a reasonable window. Now, we are
talking about a situation which might have Mr. Hneihen locked up in a remand centre
for as long as two weeks prior to being delivered to the hospital.
Schneider
J.
declined to issue a s. 672.58 order. Instead, pursuant to the authority of s.
672.46(2), he issued an order directing that Hneihen be detained at CAMH pending a
30
disposition hearing by the Review Board.
- Transcripts of Proceedings in R. v. Hneihen, Ex. ] to Affidavit of Dr. Alexander Simpson,
Appellant's Record. Vol. 7. atpp. 89-114;
APPELLANT'S FACTUM
Page 22
-Affidavit of Dr. Alexander Simpson, Appellant's Record. Vol. 6. at p. 146 (paras. 74-78)
43.
Hneihen was eventually returned to 102 Court and found fit to stand trial. On june 10,
2010, Schneider J. found him NCR. Consequently, Schneider J. made another order, pursuant
to s. 6 72.46(2), directing that Hneihen be detained at CAMH pending a disposition hearing by
the Review Board. When the Review Board conducted that disposition hearing on july 15,
2010, Hneihen was still waiting in jail to be transferred to CAMH in accordance with
Schneider's June 10th order. On July 20, 2010, the Review Board issued a disposition, pursuant
to s. 672.54, ordering that Hneihen be detained at CAMH. Hneihen filed a habeas corpus
application. By the time that application was heard on july 30, 2010, Hneihen remained in
10
custody at the jail. In granting Hneihen's habeas corpus application, Forestell J. noted:
The provisions are consistent with the objectives of the legislation to treat
rather [than] punish the NCR accused in a hospital rather than a prison. The
constitutionality of Part XX.1 was challenged in R. v. Winko. In upholding the
constitutionality of the legislation, McLachlin J., as she then was, writing for the
majority observed that the new statutory scheme created an "assessment-treatment
alternative for the mentally ill offender to supplant the traditional criminal law
conviction-acquittal dichotomy." McLachlin J. quotes with approval a passage from Re
Rebic and The Queen which was also quoted by Lamer C.J. in Swain: "The objective of
the legislation is to protect society and the accused until the mental health ofthe latter
has been restored. The objective is to be achieved by treatment of the patient in a
hospital, rather than in a prison environment." She observed at paragraph 41 that the
"need for treatment rather than punishment is rendered even more acute by the fact
that the mentally ill are often vulnerable and victimized in the prison setting.
20
- R. v. Hneihen, [2010] O.J. No. 4115 at para. 16 (S.C.)
44.
Sylvia Consuelo appeared in 102 Court on September 14, 2010 before Bassel J. (5
months after the Appellant, Brian Conception, had appeared there before Hogan J.). A fitness
hearing was held following a brief at-court assessment by Dr. Waisman (the same forensic
psychiatrist who had assessed the Appellant and testified before Hogan J.). Basse! J. found
Consuelo UST. The Crown immediately applied for as. 672.58 order. On the basis of Dr.
30
Waisman's testimony that the s. 6 72.59 criteria were satisfied, Bassel J. was prepared to issue
the treatment order. Mr. Nes, the CAMH administrator assigned to 10 2 Court, informed Hassel
J. that there would be no bed available until some time between September 20 and October 1.
APPELLANT'S FACTUM
Referring toR. v. Hneihen, Bassel
Page 23
J. issued the s.
672.58 treatment order with a term that
Consuela be transferred to "CAMH or a designate" forthwith. CAMH appealed against the order
to the Ontario Court of Appeal.
- Transcripts of Proceedings in R. v. Consuela, Ex. K to Affidavit of Dr. Alexander Simpson,
Appellant's Record. Vol. 7. at pp. 115-137
45.
On September 16, 2010, Yi Liu appeared in 102 Court for an assessment and fitness
hearing. On the basis ofthe psychiatric opinion evidence, Khawly J. found Liu UST and was
satisfied that a s. 6 72.58 could issue. When inquiring about the availability of a bed, Khawly
J. had the following exchange with Mr. Nes:
10
MR. NES:
-our understanding is that the person in charge of the mental health
program at CAMH had to approve of this application, or consent to this treatment
order.
THE COURT:
Right.
MR. NES:
So it's our request that a written request will be sent to the person in
charge for their view.
THE COURT:
What does that mean? In other words, even if the Court makes a
treatment order request, that can always be vetoed by CAMH, is that what you are
telling this Court?
20
MR. NES:
My understanding is that the person in charge has to consent to this
treatment order.
THE COURT:
Well, that is exactly what I am being told, that CAMH can veto this. Are
you aware of this? ....
[CROWN]:
No, this approach is new to me.
THE COURT:
[Crown], this is your regular court. You tell me what is going on here.
Otherwise, why bother having a mental health court....
30
[CROWN]:
All right. Well, I am being advised that the hospital's position is that
they have to review the case in order to give consent. So the practice of giving the
Court an admission date oflater than whatever date is not what's proposed today. I've
asked for the hospital's representative to contact their lawyer so that I can speak with
them.
THE COURT:
Apparently this, according to Madam Clerk, this has been happening
for a week Are you aware of this?
APPELLANT'S FACTUM
Page24
[CROWN]:
That this has been happening for a week?
THE COURT:
Yes ....
THE COURT: Well, to be honest, if that is the case, and if that is the way the hospital
chases to read this, and it sounds like they can, I do not see why we have mental health
courts, to be honest, because it defeats the whole purpose of a mental health court. You
have a psychiatrist coming before us, a duly licenced psychiatrist in this Province, who
is telling us this man is in need of treatment. And if the hospital deems- it looks like
it is their right to say "Well, no, we do not feel he requires treatment," where does that
leave us?
10
- Transcripts of Proceedings in R. v. Liu, Ex. P to Affidavit ofDr. Alexander Simpson, Appellant's
Record. Vol. 7. at pp. 162-184
46.
On April4, 2011, Hameed Al-Sherawadi appeared in 102 Court before Hogan J. for a
fitness hearing. After Hogan J. had found Al-Sherawadi UST, the Crown immediately applied
for as. 672.58 treatment order. Upon learning that CAMH was not agreeing to accept AlSherawadi before April6, 2011, Hogan J. declined to make the treatment order. Instead, Hogan
J., relying on s. 672.46(2) and the decision ofForestell J.'s in Hneihen, remanded Al-Sherawadi
directly to CAMH pending a disposition hearing by the Review Board. CAMH immediately
applied to the Superior Court for certiorari. On April11, 2011, Nordheimer J. set aside Hogan
J.'s order. Counsel for CAMH in Al-Sherawadi argued that Hogan J. had erred in refusing to
20
grantthe treatment order because the Hospital's "consent", required by s. 672.62(1)(a), need
not be immediate and unqualified. Nordheimer J. agreed and held that the issue of when the
treatment could commence was separate and distinct from whether the hospital was willing
to provide the treatment at all. As Nordheimer J. held, the question of when the accused should
or could be transferred to a hospital to commence treatment pursuant to as. 672.58 order is
within the discretion conferred upon a judge by s. 672.58 to impose "such conditions as the
court considers appropriate". Accordingly, Nordheimer J. found that CAMH had consented to
the s. 6 72.58 order and, thus, Hogan J. could lawfully have issued the s. 6 72.58 treatment order.
As in the Case at Bar, the Hospital's complaint inAI-Sherawadi turned on Hogan J.'s refusal to
exercise a further discretion to delay the commencement of the treatment order sought by the
30
Crown, an issue upon which no party had proffered any supporting evidence.
- CAMHv.AI-Sherawadi, [2011] O.J. No.1755 at paras. 3 and 16-17 (S.C.)
APPELLANT'S FACTUM
Page 25
Part II - Points in Issue
PART II: POINTS IN ISSUE
47.
This appeal raises the following two issues:
(i) Did the Court of Appeal err in holding that the" consent" required of a hospital
by s. 672.62 ofthe Code relates to the timing of the s. 672.58 order and not just
to the treatment concerns identified by s. 672.59?
It is respectfully submitted that the answer is "yes". The "consent" requirement ins.
672.62 was intended to focus only on whether the proposed treatment facility is willing to
administer the treatment ordered pursuant to s. 6 72.58 (and not when the treatment should
begin). Parliament never intended the "pleasure of the Lieutenant Governor" to be replaced
10
with the "pleasure of hospital administrators". Parliament intended the question of whether
to delay the implementation of an otherwise valid s. 6 72.58 treatment order to be a decision
made by a judge pursuant to s. 6 72.63 of the Code. On the evidence before Her Honour, there
was no doubt that CAMH was consenting to administer the treatment. Their objection related
only to the timing of the commencement of that treatment, a decision reserved to Hogan J.
pursuant to s. 6 72.63, and for which no evidence was presented to displace the presumption
of immediacy.
(ii) In the alternative, does requiring a hospital's "consent" for the issuance of a
s. 672.58 order violates. 7 of the Charter?
If the "consent" required pursuant to s. 672.62 does permit the treating facility to
20
determine if a s. 6 72.58 treatment order can be made, s. 6 72.62 imposes an unconstitutional
limitation on an UST accused's s. 7 interests. Having been found UST, the accused is
immediately at risk of a continued denial of liberty until fitness can be restored. While
detained in jail, the UST accused's life and security of the person interests are profoundly
engaged. If the Criminal Code gives hospital administrators an unfettered veto over the judge's
decision that an UST accused should receive treatment to restore fitness, s. 6 72.62 violates s.
7 of the Charter.
APPELLANT'S FACTUM
Page26
Part Ill - Argument
PART III: ARGUMENT
I. Introduction - mootness and sequencing of issues
48.
Although the dispute in this case is moot, as in Mazzei, the issues raised on the appeal
are likely to recur while being difficult to review. This was the position taken by all counsel
before the Court below. Citing Mazzei, the Court agreed. The issues in this case merit review
and comment by this Court.
-Reasons for judgment of Court ofAppeal, Appellant's Record. Vol. 1, at p. 99 (paras. 17 -18);
-Mazzei v. B.C. (Director ofAdult Forensic Psychiatric Services}, [2006] S.C.}. No.7 at para. 15
49.
10
In deciding the issues raised by this appeal, this Court should first settle on the
appropriate interpretation of the" consent" requirement ins. 6 72.62 (1) (a) of the Code. As the
majority held in R. v. Sharpe: "The interpretation of the section is a necessary pre-condition
to the determination of constitutionality.... ". While the Appellant has separately addressed the
Charter concerns, those concerns must also inform this Court's approach to the interpretation
of s. 672.62(1)(a). As Binnie J. said in PMHC v. Ontario (A.-G.), infra:
Winko makes it clear that Part XX.1 of the Criminal Code survived the s. 7 Charter
challenge in that case only because at every step of the process consideration of the
liberty interest of the NCR accused was built into the statutory framework.
[Emphasis added.]
An interpretation that preserves the constitutionality of a provision is always to be preferred.
20
- R. v. Sharpe, [2001] S.C.J. No.3 at para. 32;
- Winko v. B.C. (Forensic Psychiatric Institute}, [1999] S.C.J. No. 31 at paras. 15 and 16;
- PMHCv. Ontario (A.-G.), [2003] S.C.J. No. 67 at para. 53;
- R. v. Mills, [1999] S.C.J. No. 68 at para. 56
II. The "consent" requirement of s. 672.62 was satisfied in this case
1l Section 672.62 requires only that the treatment-provider endorse the
appropriateness and effectiveness of the proposed treatment
50.
There is nothing or in the wording of s. 6 72.62 or Part:XX.1 to suggest that the "consent"
requirement is intended to be broader than giving hospitals the right to refuse to administer
inappropriate or ineffective treatment. There is no reason to think Parliament was concerned
30
about bed allocations. Parliament has already determined that the question of when the
APPELLANT'S FACTUM
Page 27
Part III - Argument
treatment order should take effect will be decided by the court under s. 6 72.63 of the Code.
-Reasons for judgment ofCourt ofAppeal, Appellant's Record. Vol.1. at pp.100-101 (paras. 2325)
51.
In deciding that s. 672.62's "consent" requirement gives hospitals the right to decide
if and when treatment should be administered to an UST accused, the Court of Appeal did not
reconcile its interpretation with the clear wording of s. 672.63 of the Code. That section
provides that a disposition comes into effect on the day it is made. Further, the Court below
did not explain why Parliament would have given hospitals the power to decide unilaterally
to delay the issuance of a s. 672.58 court-ordered placement but not any of the similar
10
placements contemplated by Part XX.l of the Code, placements which could theoretically
jeopardize the safety of the accused and the hospital's other patients and staff:
20
(i)
For the purposes of a s. 6 72.11 psychiatric assessment, a court may order that
an accused be taken to a designated hospital, pursuantto s. 672.13, for a period
of up to 60 days: see ss. 672.11, 672.13, 672.14 and s. 672.15.
(ii)
As part of a s. 672.54(c) disposition, a court or review board may order an
accused to be transferred to a psychiatric hospital until the next s. 672.54
disposition hearing.
(iii)
Following an UST finding, a court may order the transfer of an accused from jail
to hospital pursuant to s. 672.46(2).
(iv)
An accused who is brought before a justice as a result of being arrested for
breaching (or apparently breaching) the terms of as. 6 72.54 disposition may be
ordered to go to a psychiatric hospital and remain there pending a review board
hearing: ss. 672.91,672.92 and 672.93.
Hospitals have to confront the same difficulties in immediately accommodating mentally ill
accused remanded to them directly by the courts under any of the above provisions,
Parliament did not see fit to confer upon hospitals a power to dictate to the courts when these
other hospital remand orders would take effect. Had the Court of Appeal interpreted s. 6 72.62
in the context of those other related provisions, it would have concluded that Parliament had
intended to limit the consent requirement of s. 672.62 to the medical issues addressed in s.
30
672.59.
APPELLANT'S FACTUM
Page 28
Part III -Argument
2) While there was evidence of the Hospitals' consent. there was no evidence to support
delaying the commencement ofthe s. 672.58 disposition
52.
In the Case at Bar, the evidence before Hogan
J. clearly supported a finding that the
facility which Hogan J. intended to name as the treatment-provider in the s. 672.58 order had
"consented" to provide that treatment. There was never any suggestion by the Crown, Dr.
Waisman or Mr. Nicholas that MHCP was not consenting to the treatment order being sought
by the Crown. Since its 2005 Memorandum of Understanding with 102 Court, CAMH has
consistently stated that it will presumptively consent to treat all accused for whom as. 6 72.58
treatment order is being proposed 13• The Hospital asked Hogan J. to delay the commencement
10
of that order for six days, as an exercise ofthe discretion conferred upon her by s. 672.63 of
the Code.
- Cross-examination of Dr. Alexander Simpson, April 29, 2011, p. 41, II. 12-23; p. 59, I. 14- p.
64, I. 20; p.118, II. 9-13; p.120,l. 21- p. 121, 1.10; p. 146,1.17- p. 150, I. 8;
- Letter from Justice Schneider to Dr. Barbaree, dated February 14, 2007, Ex. 3 to Crossexamination of Dr. Alexander Simpson, Appellant's Record. Vol. 8, at pp. 233-236
53.
Hogan
J.
refused to ignore the presumption that Part XX.1 dispositions should take
immediate effect. Her refusal was particularly apt in the context of the involuntary treatment
successfully sought by the Crown. Had there been evidence to establish that commencing the
Appellant's treatment immediately would cause harm that outweighed the benefit to the
20
Appellant, Hogan J. might have delayed the commencement of the order:
THE COURT:
... You know, it is a very serious order that is made and it has to come
to a court where expert evidence is heard, where a judge has to be satisfied that the
statutory criteria has been satisfied and that it is required now, and if that is the
situation then - and we do not take that seriously then leave everything to hospital
administrators, but we do not.
13
CAMH's only qualification to its 2005 Memorandum ofUnderstanding (see Letter from Justice
Schneider to Dr. Barbaree, dated February 14, 2007, Ex. 3 to Cross-examination of Dr. Alexander
Simpson, Appellant's Record, Vol. 8, at pp. 233-236) or its 2010 Prioritization Statement has been that
it will not consent to treatment orders which are issued to commence at CAMH forthwith. In other
words, according to CAMH, the decision as to whether or not to consent to accept a patient for
treatment under as. 672.58 order is entirely about timing and not about whether it endorses the
appropriateness of the treatment. Indeed, the "medical expert" who provides the requisite opinion
for the judges in 102 Court to exercise their jurisdiction under ss. 672.58 and 672.59 is a staff
member ofCAMH.
APPELLANT'S FACTUM
Page 29
Part III - Argument
As I say, I make orders that people ... sometimes, not always, but essentially against
their will have drugs administered to them. That is extraordinarily serious and we do
that because we feel it is absolutely necessary and that means now, not a week from
now and I understand that, as I said, and I do not do it lightly when I do things like this,
but I understand it does create disruption. But, you know, it would probably be better
if he is in a bed in the hall of a psychiatric hospital than if he is in the medical unit not
getting what I have been told is absolutely necessary treatment for, you know, a week.
10
So if you look at the priorities and what is better, not ideal, but you know at least he is
in a hospital and not a jail and I do not understand- if you are saying to me, it's okay,
and you are saying it is not ideal by you are saying it is okay to have him wait a week.
Well, if it is okay to have him wait a week then we should not be asking for
treatment orders today and I should not be making them; it is not okay.
[CROWN]: But what I'm saying though Your Honour is that the practical reality is that
someone who would have gotten their bed today for a treatment order made by
another judge is now not going to get their bed.
THE COURT: Well, I feel badly about that, but/ am not in a position to, quite frankly
20
- well for one thing, firstly with that argument I do not know that in fact that is
reality, that there is someone else that a judge has ordered to have a treatment
order today. I do not know.... where they would sit in terms of Mr. Conception; in
terms of priority, if one has to do that, I have none of that information, but
regardless it is about time the Province provided sufficient beds to deal with our
mental health needs and it is not going to happen if I -you know, if we are prepared
to do something as serious as make treatment orders and then say, but it is okay they
can sit in a jail bed. That is not appropriate. We have a mental health system here that
is supposed to treat people and you know ordering treatment orders is one of the most
serious things we can do in terms of the mental health system and yet we cannot seem
to provide a bed for them to get treated in and that is totally unacceptable. And I
understand the argument but it is not an argument that carries any weight with me
when it comes to treatment orders. [Emphasis added.]
30
Indeed, if Hogan J. had framed the order to be "forthwith" in the face ofcogent evidence that
immediate placement would cause undue harm to others it would have been open to the
Crown and/or the receiving hospital to appeal against such an order on the argument that it
had resulted from an unreasonable exercise of her discretion. An appeal would have
automatically suspended the operation of such an order. In other words, there is nothing
about the Appellant's proposed interpretation of s. 672.62 which precludes a treatmentprovider from presenting a case for why as. 6 72.58 treatment order must be delayed nor from
APPELLANT'S FACTUM
Page 30
Part III - Argument
seeking appellate review of any unreasonable judicial refusal to accede to such a requese 4 • On
the other hand, an UST accused has no avenue for reviewing a hospital's unreasonable
withholding of consent.
- Transcript of Proceedings before Hogan]., Appellant's Record. Vol. 1, at pp. 134- 136
54.
The issue of whether or not Hogan
J.
erred in deciding to remand the Appellant
"forthwith" to a hospital, as opposed to a jail, is resolved by the fact that the s. 672.58
treatment order was validly issued given the Hospitals' apparent consent to administer the
specified treatment. Having been empowered (by s. 672.63) to refuse the Crown's request for
10
a delay in the commencement of the treatment order, Hogan J. was entitled to remand the
Appellant directly to the treating facility. Parliament recognized that the judge presiding over
the fitness/treatment hearing is in the best position to balance the interests engaged by the
question of whether a UST accused can be remanded to a jail to wait for a hospital bed to
become available. Hogan J.'s decision was reasonable and supported by the evidence. In
rejecting the Crown's request to delay the commencement of the treatment order, Hogan J.
explained that this is not the type of decision which should be determined exclusively by the
demands facing provincial hospital administrators. Hogan J. held that the timing of the
treatment is a decision which must be made by a court qualified to balance claims of resource
limitations against the rights and interests of the mentally ill accused. Parliament saw fit,
20
pursuant to s. 672.63 of the Code, to provide judges like Hogan J. with a supervisory role over
when s. 6 72.58 treatment orders would take effect. The interpretation of s. 6 72.62's "consent"
requirement adopted in the Court below effectively removes that supervisory role and allows
hospitals to decide unilaterally the extent to which resource limitations may delay the
implementation of otherwise appropriates. 672.58 treatment orders. Indeed, the Ontario
Court of Appeal has recognized a similar power in an analogous context under Part XX.l:
There is, however, nothing to prevent a judge in a specific case where it is reasonable
to do so to make an order that an accused be taken directly to the hospital. Judges can
14
Interestingly, the Appellant was immediately taken to MHCP and remained there for the
duration ofhis treatment order without any further claim that the MHCP could not accommodate
his treatment.
APPELLANT'S FACTUM
Page 31
Part III - Argument
also order detention in a specific place pending transfer to the hospital in an
appropriate case. The Criminal Code provides ample flexibility to allow judges to
fashion orders that are appropriate to the specific circumstances.
It is respectfully submitted that the Court below erred in its interpretation of s. 672.62.
- R. v. Phaneuf, supra at paras. 11 and 18
III. The "consent" requirement ins. 672.62fl)fal violates s. 7 of the Charter
1l Introduction
55.
In the alternative, if a hospital may refuse consent for whatever reason it deems
appropriate, the Appellant submits that s. 672.62(1)(a) violates s. 7 of the Charter because:
10
(a)
the section would allow for a UST accused's Charter protected interests to be
infringed by a decision made by someone other than the presiding judge and
without affording any opportunity to be heard; and/or
(b)
the section would allow for a UST accused's Charter protected interests to be
infringed by a decision made on the basis of arbitrary or vague criteria.
A UST accused's s. 7 interests are engaged by a provision which deprives him of access to
restorative psychiatric treatment and which results in his or her continued detention in jail
(rather than a hospital). The question is whether, by allowing hospital administrators to
deprive courts of the authority to issue treatment orders which otherwise satisfy ss. 672.58
and 672.59, the "consent" requirement ins. 672.62(1)(a) violates s. 7.
20
-Reasons for judgment ofCourt ofAppeal, Appellant's Record. Vol.l. at pp.101-103 (paras. 2836)
2) Provincial jurisdiction over "health" does not insulates. 672.62(1)(a) from Charter
review nor does it support a broad interpretation of the "consent" requirement
56.
There is nothing inherently wrong with Parliament authorizing a criminal court to
order provincial hospitals to forcibly treat UST accused. The pith and substance of Part XX:.l
"is revealed by its twin goals of protecting the public and treating the mentally ill accused fairly
and appropriately". The pith and substance of the provisions dealing with UST accused "falls
within both the preventive and criminal procedure branches of the criminal law". While
treatment orders may touch upon "health", that is not a matter exclusively within the
APPELLANT'S FACTUM
Page 32
Part III - Argument
provincial legislative domain. Such an overbroad approach to inter-jurisdictional immunity
in health matters was expressly rejected by this Court in Canada (A.-G.) v. P.H.S. Community
Services Society, infra. Indeed, in rejecting that overbroad approach, the Court noted that "[t]he
provinces might choose not to legislate in these areas ... [and t]he result might be a legislative
vacuum .... " As noted above, there is no provincial legislation or regulation setting out the
criteria for when a hospital is expected to consent to as. 672.58 treatment order.
-Canada {A.-G.) v. P.H.S. Community Services Society, [2011] S.c.]. No. 44 at paras. 57-78;
- R. v. Demers, [2004] S.C.]. No. 43 at paras. 18 and 25;
- R. v. Swain, [1991] S.c.]. No. 32 at para. 68
10
57.
This Court's reasoning in Mazzei does not support the contention that an unfettered
consent requirement in s. 672.62(1)(a) is necessary to respect the division of legislative
authority implicated by a treatment order. While the analysis in Mazzei is instructive on the
limits of Parliament's legislative competence to authorize treatment of mentally disordered
accused, it is not determinative of the much narrower issue in this case; namely, the forcible
treatmentofUSTaccused for limited periods and for the sole purpose of restoring their fitness
to continue with the criminal process 15• Indeed, in passing reference to the treatment order
regime contemplated for UST accused, this Court in Mazzei recognized that Parliament had
used "different wording and a different operational scheme" from what had been used to
define the authority to order treatment pursuant to s. 672.54.
20
-Mazzei v. B.C. [Director ofAdult Forensic Psychiatric Services), supra at para. 53
15
The concern articulated by this Court in Mazzei about federally created review boards having
a broad discretion to order treatment of NCR accused was that: "Such an exercise would constitute
interference with the authority and responsibility of hospital authorities to provide medical services
to persons in their custody according to their view of what is appropriate and effective.": Mazzei v.
B.C. (Director ofAdult Forensic Psychiatric Services), supra at paras. 34,35 and 37. It is submitted that
this reinforces the Appellant's statutory interpretation argument that Parliament only ever intended
for "consent" in s. 672.62(1)(a) to concern itself with whether the s. 672.58 treatment order is
"appropriate and effective".
APPELLANT'S FACTUM
58.
Page 33
Part III - Argument
In Mazzei, this Court held that, under its criminal law power, Parliament can authorize
courts or review boards to make orders "regarding" treatment which are binding upon
provincially-regulated hospital officials when necessary to prevent the legislative objectives
of Part XX.1 from being "frustrated". Unlike the treatment at issue in Mazzei, the treatment
contemplated by s. 6 72.58 is more than just incidental to the criminal process, it is necessary
to avoid the process being "frustrated" by the accused's state of unfitness. Unlike the broad
discretion to formulate the s. 672.54 dispositions at issue in Mazzei, s. 672.58 dispositions
"have a very narrow and limited application"- they are a measure of last resort, for the sole
purpose of restoring fitness, and are limited to a maximum of 60 days. Indeed, unlike the
10
broad discretion conferred by s. 672.54, a judge hearing as. 672.58 application is given no
discretion as to the type of treatment which may be ordered- the judge may only endorse the
"specific treatment" identified by the provincially-licenced medical expert in the testimony
statutorily required by s. 6 72.59. To the extent that they need to, ss. 6 72.58 and 6 72.59 more
than adequately respect the provincial jurisdiction over health.
-Mazzeiv. B.C. {Director ofAdult Forensic Psychiatric ServicesJ supra atparas.18, 27,39-4 7 and
55
59.
Most significantly for this case, in Mazzei this Court recognized that, notwithstanding
provincial jurisdiction over hospitals, "if Review Boards [and courts] are to fulfill their
statutory role and mandate in terms of making appropriate disposition orders aimed at
20
protecting the public while safeguarding the liberty interests of the accused, they must have
some supervisory power over the medical treatment ofN CR accused persons who are detained
in hospital." This Court agreed that the hospital administrator in Mazzei should not have been
left to act "as the sole judge" of what to do about the accused's treatment. The Appellant's
constitutional complaint about s. 6 72.62 (1) (a) is that it deprives courts of that supervisory
power and leaves hospital administrators as the sole judge of if and when restorative
treatment should be administered to a UST accused.
-Mazzei v. B.C. {Director ofAdult Forensic Psychiatric Services), supra at paras. 41 and 57
APPELLANT'S FACTUM
60.
Page 34
Part III · Argument
Further, and in the alternative, this Court made clear in P.H.S. that a law's jurisdictional
integrity under ss. 91 and 92 of the Constitution Act;. 1867 does not determine whether the
purpose or effect of that law violates the Charter.
-Canada (A.-G.) v. P.H.S. Community Services Society, supra at paras. 82-83
3) Section 672.62 does not accord with the principles offundamental justice
(a) Unconstitutional delegation ofthe decision to issue as. 672.58 treatment order
61.
It is submitted that the principles of fundamental justice require that a decision in a
criminal proceeding that risks depriving a UST accused of their rights to liberty and security
of the person be made by a judicial officer applying the law to the evidence presented in court.
10
It is only in rare circumstances, such as informer privilege or national security, where a
criminal court judge is denied the authority to balance the competing interests at stake. The
ultimate determination of a UST's treatment opportunities cannot be left to the unilateral
decisions of hospital administrators made outside the courtroom and without hearing from
the accused or the Crown.
- Charkaoui v. Canada (Citizenship and Immigration}, [2007] 1 S.C.R. 350 at para. 48;
- R. v. Swain, [1991] S.C,J. No. 32 at paras. 122-128;
-Hunter eta/. v. Southam Inc., [1984] S.C.J. No. 36;
- R. v. Noble, [1985] O.J. No. 809 at paras. 43-49 (C.A.);
-Named Person v. Vancouver Sun, [2007] S.c.}. No. 43 at paras. 19 and 22;
- R. v. Ahmad, [2011) S.CJ. No.6
20
62.
The Court of Appeal held that there was no constitutional deficiency in allowing the
hospitals to decide if a necessary treatment order (as determined by the criteria ins. 6 72.59)
could be implemented. The hospital's decision is made without hearing from the person most
affected and without a need to provide reasons. Most importantly, the hospital's decision is
final. There is no other provision in the Criminal Code giving a third party a complete veto over
a judge's decision as to what is in the best interests of the administration of justice.
63.
The Court of Appeal thought this unchecked power was not problematic because of the
residual judicial oversight to conduct "bed checks" that Court had earlier recognized in R. v.
Phaneuf. Regrettably, the treatment order regime does not permit a series of "bed check"
APPELLANT'S FACTUM
Page 35
Part III - Argument
remands. Therefore, analogies to the bed check power under the assessment order regime are
inapt. Once an accused has been found UST, the court is limited to three options: hold a
disposition hearing, remand to a hospital pending a Review Board disposition hearing within
45 days or issue as. 672.58 treatment order for a period not exceeding 60 days. Moreover,
unlike the absolute authority of a court to order a transfer to hospital for assessment, there is
no need for them to explain to the court the reason for any delayed implementation of a
treatment order and nothing to compel them to do so. The unfettered right to withhold
consent carries with in an unreviewable delegated power.
- R. v. Phaneuf, supra at paras. 11, 18 and 29-31
10
(b) The hospitals' decision-making power is arbitrary and vague
64.
The test for determining whether a law or its application is unconstitutionally arbitrary
was restated by this Court in P.H.S. The first step is to identify the law's objectives. The second
step is to identify the relationship, if any, between the objective and the impugned law. In that
regard, the question is whether the "deprivation of a right... bears no relation to, or is
inconsistent with, the state interest that lies behind the legislation".
-Canada (A.-G.) v. P.H.S. Community Services Society, supra at paras. 128-129 and 132
65.
The objective of Part XX.l was most recently articulated by this Court in Mazzei as
follows:
20
... the dual purpose of Part XX.1 is: (1) "protect[ion of] the public", and (2) "fair
treatment" of the accused .... This was repeated in Penetanguishine, at paras.19, 30 and
69, in Pi net, at paras. 1 and 19, as well as in R. v. Demers, [2004] 2 S.C.R. 489, 2004 SCC
46 at para. 18.
More specifically, as this Court said in Demers, the purpose of the Part XX.l provisions dealing
with UST accused "is to allow for the ongoing treatment or assessment of the accused in order
for him or her to become fit for an eventual trial while preserving his or her maximum liberty
and dignity".
-Mazzei v. B.C. (Director ofAdult Forensic Psychiatric Services), supra at para. 27
- R. v. Swain, supra at paras. 130-132;
- R. v. Demers, supra at para. 41
APPELLANT'S FACTUM
66.
Part III - Argument
Page 36
This legislative purpose is reflected in the requirements setout in ss. 672.58 and 672.59
for the granting of a treatment order. Those provisions instruct a court to balance the
competing objectives, on the basis of expert opinion evidence presented in open court, before
ordering the recommended treatment for a limited period of time. However, even where the
legislative objectives would best be achieved by making a treatment order, s. 672.62(1)(a)
prevents it when a hospital refuses consent. Put differently, by allowing the hospital to trump
a court's determination under ss. 672.58 and 672.59, s. 672.62(1)(a) "bears no relation to, or
is inconsistent with, the state interest that lies behind the legislation".
67.
10
A law will be found to be unconstitutionally vague "if it so lacks precision that it does
not give sufficient guidance for legal debate". Section 672.62(1)(a) provides no criteria
governing when a hospital may justifiably withhold the consent to authorize necessary
treatment of a UST accused. The hospital's decision to refuse consent, and thereby deny a UST
accused the opportunity for treatment, can be based on considerations that would never
satisfy a court otherwise poised to issue as. 6 72.58 treatment order. As Barrett and Shandler
observe in their text Mental Disorder in Canadian Criminal Law, there are extra-legal
considerations at play on the controversial issue of treatment orders that bear no relation to
the legislation's criminal law objectives:
20
In practice, since such orders require consent of the treating hospital or physician, they
can be difficult to obtain. While the Code provides protection to these individuals for the
administration of treatment to an unwilling accused, some physicians may be reluctant to
consent to an order. Dr. Hy Bloom notes:
This section of the Code is used only by some psychiatric facilities in
Ontario, as it is at odds with the direction and spirit of provincial mental-health
legislation, which requires that an accused be both involuntary and incapable
of making a treatment decision before he or she is treated involuntarily.
Because a hospital's decision to refuse consent is not reviewable and because a hospital cannot
otherwise be compelled to give reasons for refusing consent, there is no opportunity for "legal
debate" to refine the meaning of "consent" in s. 672.62(1)(a).
The elementary basis for
ensuring regularity and fairness in liberty-related decision-making is missing.
30
- R. v. Nova Scotia Pharmaceutical Society, [1992] S.C.J. No. 6 7;
-J. Barrett and R. Shandler, Mental Disorder in Canadian Criminal Law, at p. 3-28
APPELLANT'S FACTUM
68.
Page 37
Part III - Argument
There is no requirement in the Code or any related provincial legislation for anyone to
ever establish criteria for deciding if or when a hospital should "consent" to as. 672.58 order.
To the extent that there is evidence of some Ontario hospitals having created their own
decision-making criteria, there is no legal obligation for them to publish the criteria nor to
adhere to them in a difficult case. Furthermore, the fresh evidence in this case demonstrates
that different hospital administrators have different views on the appropriate criteria for
deciding if and when to admit acutely psychotic accused. Simply put, in deciding if and when
to "consent" to as. 672.58 order, there is an absence of discernable criteria and nothing to
guarantee that hospital administrators will balance the UST's liberty interest against the
10
interests hospitals would consider.
4) Section 1 of the Charter cannot justifv the violation created by s. 672.62's vague
"consent" reguirement and/or the lack of procedural fairness
69.
The Appellant submits that there can be no s. 1 justification for the Charter
infringements created by the "consent" requirement ins. 672.62 of the Code. The vagueness
of the "consent" requirement is not a limit that is "prescribed by law". There is no
constitutionally acceptable need for conferring an unfettered "veto" of judicial s. 672.58
dispositions to hospital administrators. Under PartXX.1, all hospital orders are ultimately left
to the discretion of the courts or review boards. In addition, Ontario's review board system
already provides hospitals a process for having their concerns heard prior to being the
20
recipient of mentally disordered offenders pursuant to s. 6 72.54( c) dispositions.
70.
If resource limitations were ever sufficiently important to justify the s. 7 Charter
violations imposed by s. 672.62(1)(a), the importance of that objective has waned in the past
twenty years. When the "hospital orders" in Part XX.1 were first enacted, Parliament was told
that the provinces would soon have the facilities in place to discharge their statutory
obligations. Two decades later, the inadequacy of funding for forensic mental health services
in Ontario has been widely acknowledged by all the major players in the Part XX.1 system:
legislators, judges, lawyers, doctors, support staff, and mentally disorder offenders alike. In
APPELLANT'S FACTUM
Page 38
Part III - Argument
his 2002 Report on Part XX.1, the Honourable Andy Scott (M.P.) observed:
Virtually everyone appearing before us from all parts of the country, from all
components of the mental health and criminal justice systems, and with differing
opinions on many issues, identified inadequate resources as a major problem. They
expressed the view that the goals of the legislation put in place to deal with the needs
of mentally disordered offenders are often frustrated by unavailable or inadequate
services, inaccessible or non-existent treatment program resources, or inadequate or
unavailable beds in institutions.
As the Crown candidly remarked to Hogan J. in the case at bar: "the reality is there is a shortage
10
of beds" and "that shouldn't be the case, but it is." Legislation carefully crafted by Parliament
to extend concern, respect and consideration to mentally disordered offenders has too long
fallen short of the constitutional mark because of the lack of resources.
- R. v. Askov, [1990] S.CJ. No. 106 at paras. 55-56;
-Reference re Remuneration ofjudges of the Provincial CourtofP.E.I., [1997] 3 S.C.R. 3 at paras.
281-284
- Leiper, supra;
-Forensic Mental Health Services Expert Advisory Panel for the Ontario Ministry of Health and
Long Term Care, Assessment, Treatment and Community Reintegration of the Mentally
Disordered Offender (Final Report, December 2002);
- Standing Committee on Justice and Human Rights, Review of the Mental Health Disorder
Provisions of the Criminal Code, June 2002 at p. 23
20
71.
Assuming that hospital resource allocation was once a sufficiently important objective
and that this objective was rationally connected to the "consent" requirement in s.
672.62(1)(a), it is disproportionate to give hospital administrators a veto over if and when a
UST accused will be treated pursuant to s. 6 72.58. The deleterious impact on UST accused
being denied or delayed treatment capable of rendering them fit outweighs the salutary effects
of leaving resource allocation to the unreviewable (and unknowable) decision of hospital
administrators. If resource limitations are a valid consideration in deciding whether to make
a forced treatment order under s. 672.58, a system which required the State to present
30
evidence of resource limitations to the presiding judge, who would then balance those
interests against the societal and individual interests engaged by immediate treatment, is a
reasonable constitutional demand. That very system is already in place when the Ontario
Review Board is considering a s. 6 72.54 disposition requiring the transfer of an accused to a
particular psychiatric hospital. Indeed, for other hospital transfer-orders, Part XX.1 does not
APPELLANT'S FACTUM
Page 39
Part III - Argument
even afford a voice to hospital administrators. Accordingly, there is no valid justification for
reserving the most restrictive approach to the narrow class of mentally disordered offenders
who are most in need of a brief period of immediate psychiatric treatment.
51 Constitutional Remedy
72.
If s. 672.62(1)(a) cannot be interpreted so as to limit the meaning of "consent" to the
medical appropriateness of the treatment required to restore fitness, the only appropriate
remedy is to declare it of no force or effect. Considering that hospitals would retain their
status as a "party" and have the opportunity to appeal against any unreasonably timed
treatment disposition, there is no reason to suspend the implementation of such a declaration.
Page40
APPELLANT'S FACTUM
Parts IV /V - Costs/Order Requested
PART IV: SUBMISSIONS CONCERNING COSTS
73.
The Appellant is not seeking any costs and would oppose any request for costs.
PART V: ORDER REQUESTED
74.
It is respectfully submitted that the appeal should be allowed and the Order of Hogan
J. restored either on the basis that her finding of" consent" was supported by the evidence or,
in the alternative, on the basis that the consent requirement created by s. 672.62(1)(a) is
unconstitutional and of no force or effect.
DATED at Toronto this 20th day of May, 2013.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
10
Frank Addario
Addario Law Group
Paul Burstein
APPELLANT'S FACTUM
Page41
Part VI - Authorities
PART VI: AUTHORITIES TO BE CITED
Para(s)
Caselaw
CAMH v. Al-Sherawadi, [2011] O.J. No. 1755 (S.C.)
Canada (A.-G.) v. P.H.S. Community Services Society, [2011] S.C.J. No. 44
20
56, 60, 64
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350
61
Hunteretal. v. Southam Inc., [1984] S.C.J. No. 36
61
Mazzei v. B.C. (Dir. Adult For. Psych. Services), [2006] 1 S.C.R. 326
10
46
48, 57, 58, 59, 65
Named Person v. Vancouver Sun, [2007] S.C.J. No. 43
61
R. v. Nova Scotia Pharmaceutical Society, [1992] S.C.J. No. 67
67
Orru v. Penetanguishene Mental Health Centre, [2004] O.J. No. 5203 (S.C.)
38,40
Pinet v. Penetanguishene Mental Health Centre, [2006] O.J. No. 678 (S.C.)
39,40
PMHCv. Ontario (A.-G.), [2003] S.C.J. No. 67
49
Reference re Remuneration ofjudges of the Provincial Court of P.E.I., [1997] 3 S.C.R. 3
70
R. v. Ahmad, [2011] S.C.J. No.6
61
R. v. Askov, [1990] S.C.J. No. 106
70
R. v. Demers, [2004] S.C.J. No. 43
56,65
R. v. Hneihen, [2010] O.J. No. 4115 (S.C.)
42, 43, 44, 46
R. v. Hussein, [2004] O.J. No. 4594 (S.C.)
18, 37,40
R. v. Mills, [1999] S.C.J. No. 68
49
R. v. Noble, [1985] O.J. No. 809 (C.A.)
61
R. v. Phaneuf, [2010] O.J. No. 5631 (C.A.)
19,54,63
APPELLANT'S FACTUM
Page42
Part VI - Authorities
40,41
R. v. Rosete, [2006] O.J. No. 1608 (C.J.)
R. v. Rosete, [2007] O.J. No. 3273 (C.A.)
40
R. v. Sharpe, [2001] S.C.J. No. 3
49
R. v. Swain, [1991] S.C.J. No. 32
43,56,61,65
Winko v. B.C. (Forensic Psychiatric Institute}, [1999] S.C.J. No. 31
43,49
Legislative Background
House of Commons Debates (4 October 1991) at pp. 3297-99
14,23
(Hon. Kim Campbell)
10
Minutes of Proceedings and Evidence of the Standing Committee on
justice and the Solicitor General, House of Commons, Issue No. 7
(9 October, 1991) at p. 7:10 (Daniel Prefontaine) and Issue No.8
(22 October, 1991) at pp. 8:32-33 (Dr. Lionel Beliveau) and at
pp. 8:34 & 8:44-45 (Dr. Paul-Andre Lafleur)
14,15
Standing Committee on Justice and Human Rights, Review of the
Mental Health Disorder Provisions of the Criminal Code, June 2002
19,70
Government Reports and Academic Commentary
Forensic Mental Health Services Expert Advisory Panel for the
Ontario Ministry of Health and Long Term Care, Assessmen~ Treatment
and Community Reintegration of the Mentally Disordered Offender
20
(Final Report, December 2002)
70
Ontario, Legislative Assembly, Select Committee on Mental Health and Addictions,
"Navigating the Journey to Well ness: The Comprehensive Mental Health and
Addictions Action Plan for Ontarians" (August 2010)
24
Janet Leiper, "Cracks in the Facade of Liberty: The Resort to Habeas
Corpus to Enforce Part XX.1 of the Criminal Code" (2009), 55 C.L.Q. 134
J. Barrett and R. Shandler, Mental Disorder in Canadian Criminal Law
18, 19, 24, 36, 37,
38,39,40, 70
67
APPELLANT'S FACTUM
Page43
Part VII - Legislation
PART VII: RELEVANT LEGISLATIVE PROVISIONS
Criminal Code, R.S.C. 1985, c. C-46
Sections 672.1,672.11,672.12,672.121, 672.13, 672.14,672.15,672.16, 672.17,672.18,
672.19,672.191, 672.45, 672.46, 672.54,672.55,672.56, 672.57,672.58, 672.59, 672.6,
672.62, 672.63, s. 672.72, s. 672.75, 672.76 and 672.78
Definitions
672.1. ..
10
"disposition" means an order made by a court or Review Board under section 672.54 or an
order made by a court under section 672.58;
"hospital" means a place in a province that is designated by the Minister of Health for the
province for the custody, treatment or assessment of an accused in respect of whom an
assessment order, a disposition or a placement decision is made.
"party", in relation to proceedings of a court or Review Board to make or review a disposition,
means
(a) the accused,
20
(b) the person in charge of the hospital where the accused is detained or is to attend
pursuant to an assessment order or a disposition,
(c) an Attorney General designated by the court or Review Board under subsection
672.5(3),
(d) any interested person designated by the court or Review Board under subsection
672.5(4), or
30
(e) where the disposition is to be made by a court, the prosecutor of the charge against
the accused;
1991, c. 43, s. 4
Assessment order
APPELLANT'S FACTUM
Page44
672.11 A court having jurisdiction over an accused in respect of an offence may order an
assessment of the mental condition of the accused, if it has reasonable grounds to believe that
such evidence is necessary to determine
(a) whether the accused is unfit to stand trial;
(b) whether the accused was, at the time of the commission of the alleged offence,
suffering from a mental disorder so as to be exempt from criminal responsibility by
virtue of subsection 16(1 );
10
(c) whether the balance of the mind of the accused was disturbed at the time of
commission of the alleged offence, where the accused is a female person charged with
an offence arising out of the death of her newly-born child;
(d) the appropriate disposition to be made, where a verdict of not criminally
responsible on account of mental disorder or unfit to stand trial has been rendered in
respect of the accused; or
(e) whether an order should be made under section 672.851 for a stay of proceedings,
where a verdict of unfit to stand trial has been rendered against the accused.
20
1991, c. 43, s. 4;
1995, c. 22, s. 10;
2005, c. 22, s. 2.
Where court may order assessment
672.12 (1) The court may make an assessment order at any stage of proceedings against the
accused of its own motion, on application of the accused or, subjectto subsections (2) and (3),
on application of the prosecutor.
Limitation on prosecutor's application for assessment offitness
30
(2) Where the prosecutor applies for an assessment in order to determine whether the accused
is unfit to stand trial for an offence that is prosecuted byway of summary conviction, the court
may only order the assessment if
(a) the accused raised the issue of fitness; or
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that
the accused is fit to stand trial.
Limitation on prosecutor's application for assessment
APPELLANT'S FACTUM
Page45
(3) Where the prosecutor applies for an assessment in order to determine whether the accused
was suffering from a mental disorder at the time of the offence so as to be exempt from
criminal responsibility, the court may only order the assessment if
(a) the accused puts his or her mental capacity for criminal intent into issue; or
(b) the prosecutor satisfies the court that there are reasonable grounds to doubt that
the accused is criminally responsible for the alleged offence, on account of mental
disorder.
10
1991, c. 43, s. 4.
Review Board may order assessment
672.121 The Review Board that has jurisdiction over an accused found not criminally
responsible on account of mental disorder or unfit to stand trial may order an assessment of
the mental condition of the accused of its own motion or on application of the prosecutor or
the accused, if it has reasonable grounds to believe that such evidence is necessary to
(a) make a recommendation to the court under subsection 672.851(1); or
(b) make a disposition under section 672.54 in one of the following circumstances:
(i) no assessment report on the mental condition of the accused is available,
20
(ii) no assessment of the mental condition of the accused has been conducted
in the last twelve months, or
(iii) the accused has been transferred from another province under section
672.86.
2005, c. 22, s. 3
Contents of assessment order
672.13 (1) An assessment order must specify
30
(a) the service that or the person who is to make the assessment, or the hospital where
it is to be made;
(b) whether the accused is to be detained in custody while the order is in force; and
APPELLANT'S FACTUM
Page46
(c) the period that the order is to be in force, including the time required for the
assessment and for the accused to travel to and from the place where the assessment
is to be made.
Form
(2) An assessment order may be in Form 48 or 48.1.
1991, c. 43, s. 4;
2005, c. 22, s. 4
10
General rule for period
672.14 (1) An assessment order shall not be in force for more than thirty days.
Exception in fitness cases
(2) No assessment order to determine whether the accused is unfit to stand trial shall be in
force for more than five days, excluding holidays and the time required for the accused to
travel to and from the place where the assessment is to be made, unless the accused and the
prosecutor agree to a longer period not exceeding thirty days.
Exception for compelling circumstances
20
(3) Despite subsections (1) and (2), a court or Review Board may make an assessment order
that remains in force for sixty days if the court or Review Board is satisfied that compelling
circumstances exist that warrant it.
1991, c. 43, s. 4;
2005, c. 22, s. 5
Extension
672.15 (1) Subject to subsection (2), a court or Review Board may extend an assessment order,
of its own motion or on the application of the accused or the prosecutor made during or at the
end of the period during which the order is in force, for any further period that is required, in
its opinion, to complete the assessment of the accused.
Maximum duration of extensions
APPELLANT'S FACTUM
Page47
(2) No extension of an assessment order shall exceed thirty days, and the period of the initial
order together with all extensions shall not exceed sixty days.
1991, c. 43, s. 4;
2005, c. 22, s. 6
Presumption against custody
672.16 (1) Subject to subsection (3), an accused shall not be detained in custody under an
assessment order of a court unless
10
(a) the court is satisfied that on the evidence custody is necessary to assess the accused,
or that on the evidence of a medical practitioner custody is desirable to assess the
accused and the accused consents to custody;
(b) custody of the accused is required in respect of any other matter or by virtue of any
other provision of this Act; or
(c) the prosecutor, having been given a reasonable opportunity to do so, shows that
detention of the accused in custody is justified on either of the grounds set out in
subsection 515(10).
Presumption against custody- Review Board
20
(1.1) If the Review Board makes an order for an assessment of an accused under section
672.121, the accused shall not be detained in custody under the order unless
(a) the accused is currently subject to a disposition made under paragraph 672.54(c);
(b) the Review Board is satisfied on the evidence that custody is necessary to assess the
accused, or that on the evidence of a medical practitioner custody is desirable to assess
the accused and the accused consents to custody; or
(c) custody of the accused is required in respect of any other matter or by virtue of any
other provision of this Act
Residency as a condition of disposition
30
(1.2) Subject to paragraphs (1.1)(b) and (c), if the accused is subject to a disposition made
under paragraph 672.54(b) that requires the accused to reside at a specified place, an
assessment ordered under section 672.121 shall require the accused to reside at the same
place.
APPELLANT'S FACTUM
Page48
Report of medical practitioner
(2) For the purposes of paragraphs (1)(a) and (1.1)(b), if the prosecutor and the accused agree,
the evidence of a medical practitioner may be received in the form of a report in writing.
Presumption of custody in certain circumstances
(3) An assessment order made in respect of an accused who is detained under subsection
515(6) or 522(2) shall order that the accused be detained in custody under the same
circumstances referred to in that subsection, unless the accused shows that custody is not
justified under the terms of that subsection.
10
1991, c. 43, s. 4;
2005, c. 22, s. 7
Assessment order takes precedence over bail hearing
672.17 During the period that an assessment order made by a court in respect of an accused
charged with an offence is in force, no order for the interim release or detention of the accused
may be made by virtue of Part XVI or section 679 in respect of that offence or an included
offence.
1991, c. 43, s. 4;
2005, c. 22, s. 8
Application to vary assessment order
20
672.18 Where at any time while an assessment order made by a court is in force the
prosecutor or an accused shows cause, the court may vary the terms of the order respecting
the interim release or detention of the accused in such manner as it considers appropriate in
the circumstances.
1991, c. 43, s. 4;
2005, c. 22, s. 9(F)
No treatment order on assessment
6 72.19 No assessment order may direct that psychiatric or any other treatment of the accused
be carried out, or direct the accused to submit to such treatment
APPELLANT'S FACTUM
Page49
1991, c. 43, s. 4.
When assessment completed
6 72.191 An accused in respect of whom an assessment order is made shall appear before the
court or Review Board that made the order as soon as practicable after the assessment is
completed and not later than the last day of the period that the order is to be in force.
1997, c. 18, s. 81;
2005, c. 22, s. 10
Hearing to be held by a court
10
6 72.45 (1) Where a verdict of not criminally responsible on account of mental disorder or unfit
to stand trial is rendered in respect of an accused, the court may of its own motion, and shall
on application by the accused or the prosecutor, hold a disposition hearing.
Transmittal of transcript to Review Board
(1.1) If the court does not hold a hearing under subsection (1), it shall send without delay,
following the verdict, in original or copied form, any transcript of the court proceedings in
respect of the accused, any other document or information related to the proceedings, and all
exhibits filed with it, to the Review Board that has jurisdiction in respect of the matter, if the
transcript, document, information or exhibits are in its possession.
Disposition to be made
20
(2) At a disposition hearing, the court shall make a disposition in respect of the accused, if it
is satisfied that it can readily do so and that a disposition should be made without delay.
1991, c. 43, s. 4;
2005, c. 22, ss. 14, 42(F)
Status quo pending Review Board hearing
672.46 (1) Where the court does not make a disposition in respect of the accused at a
disposition hearing, any order for the interim release or detention of the accused or any
appearance notice, promise to appear, summons, undertaking or recognizance in respect of
the accused that is in force at the time the verdict of not criminally responsible on account of
APPELLANT'S FACTUM
Page 50
mental disorder or unfit to stand trial is rendered continues in force, subject to its terms, until
.
the Review Board makes a disposition.
Variation of order
(2) Notwithstanding subsection (1), a court may, on cause being shown, vacate any order,
appearance notice, promise to appear, summons, undertaking or recognizance referred to in
that subsection and make any other order for the interim release or detention of the accused
that the court considers to be appropriate in the circumstances, including an order directing
that the accused be detained in custody in a hospital pending a disposition by the Review
Board in respect of the accused.
10
1991, c. 43, s. 4;
2005, c. 22, s. 42(F)
Dispositions that may be made
672.54 Where a court or Review Board makes a disposition under subsection 672.45(2) or
section 6 72.4 7 or 6 72.83, it shall, taking into consideration the need to protect the public from
dangerous persons, the mental condition of the accused, the reintegration of the accused into
society and the other needs of the accused, make one of the following dispositions that is the
least onerous and least restrictive to the accused:
20
(a) where a verdict of not criminally responsible on account of mental disorder has
been rendered in respect of the accused and, in the opinion of the court or Review
Board, the accused is not a significant threat to the safety of the public, by order, direct
that the accused be discharged absolutely;
(b) by order, direct that the accused be discharged subject to such conditions as the
court or Review Board considers appropriate; or
(c) by order, direct that the accused be detained in custody in a hospital, subject to such
conditions as the court or Review Board considers appropriate.
1991, c. 43, s. 4;
2005, c. 22, s. 20
30
Treatment not a condition
6 72.55 (1) No disposition made under section 6 72.54 shall direct that any psychiatric or other
treatment of the accused be carried out or that the accused submit to such treatment except
that the disposition may include a condition regarding psychiatric or other treatment where
APPELLANT'S FACTUM
Page 51
Part VII • Legislation
the accused has consented to the condition and the court or Review Board considers the
condition to be reasonable and necessary in the interests of the accused.
(2) [Repealed, 2005, c. 22, s. 22]
1991, c. 43, s. 4;
1997, c. 18, s. 86;
2005, c. 22, s. 22
Delegated authority to vary restrictions on liberty of accused
10
6 72.56 (1) A Review Board that makes a disposition in respect of an accused under paragraph
672.54(b) or (c) may delegate to the person in charge of the hospital authority to direct that
the restrictions on the liberty of the accused be increased or decreased within any limits and
subject to any conditions set out in that disposition, and any direction so made is deemed for
the purposes of this Act to be a disposition made by the Review Board.
Notice to accused and Review Board of increase in restrictions
(2) A person who increases the restrictions on the liberty of the accused significantly pursuant
to authority delegated to the person by a Review Board shall
(a) make a record of the increased restrictions on the file of the accused; and
(b) give notice of the increase as soon as is practicable to the accused and, if the
20
increased restrictions remain in force for a period exceeding seven days, to the Review
Board.
1991, c. 43, s. 4
Warrant of committal
672.57 Where the court or Review Board makes a disposition under paragraph 672.54(c), it
shall issue a warrant of committal of the accused, which may be in Form 49.
1991, c. 43, s. 4
Treatment disposition
30
672.58 Where a verdict of unfit to stand trial is rendered and the court has not made a
disposition under section 6 72.54 in respect of an accused, the court may, on application by the
prosecutor, by order, direct that treatment of the accused be carried out for a specified period
APPELLANT'S FACTUM
Page 52
not exceeding sixty days, subject to such conditions as the court considers appropriate and,
where the accused is not detained in custody, direct that the accused submit to that treatment
by the person or at the hospital specified.
1991, c. 43, s. 4
Criteria for disposition
672.59 (1) No disposition may be made under section 672.58 unless the court is satisfied, on
the basis of the testimony of a medical practitioner, that a specific treatment should be
administered to the accused for the purpose of making the accused fit to stand trial.
10
Evidence required
(2) The testimony required by the court for the purposes of subsection (1) shall include a
statement that the medical practitioner has made an assessment of the accused and is of the
opinion, based on the grounds specified, that
(a) the accused, at the time of the assessment, was unfit to stand trial;
(b) the psychiatric treatment and any other related medical treatment specified by the
medical practitioner will likely make the accused fit to stand trial within a period not
exceeding sixty days and that without that treatment the accused is likely to remain
unfit to stand trial;
20
(c) the risk of harm to the accused from the psychiatric and other related medical
treatment specified is not disproportionate to the benefit anticipated to be derived
from it; and
(d) the psychiatric and other related medical treatment specified is the least restrictive
and least intrusive treatment that could, in the circumstances, be specified for the
purpose referred to in subsection (1), considering the opinions referred to in
paragraphs (b) and (c).
1991, c. 43, s. 4
Notice required
672.6 (1) The court shall not make a disposition under section 672.58 unless the prosecutor
notifies the accused, in writing and as soon as practicable, of the application.
30
Challenge by accused
APPELLANT'S FACTUM
Page 53
(2) On receiving the notice referred to in subsection (1 ), the accused may challenge the
application and adduce evidence for that purpose.
1991, c. 43, s. 4;
1997, c. 18, s. 87
Consent of hospital required for treatment
672.62 (1) No court shall make a disposition under section 672.58 without the consent of
(a) the person in charge of the hospital where the accused is to be treated; or
(b) the person to whom responsibility for the treatment of the accused is assigned by
the court.
10
(2) The court may direct that treatment of an accused be carried out pursuant to a disposition
made under section 6 72.58 without the consent of the accused or a person who, according to
the laws of the province where the disposition is made, is authorized to consent for the
accused.
1991, c. 43, s. 4
Effective date of disposition
672.63 A disposition shall come into force on the day on which it is made or on any later day
that the court or Review Board specifies in it, and shall remain in force until the Review Board
holds a hearing to review the disposition and makes another disposition.
20
1991, c. 43, s. 4;
2005, c. 22, s. 23
Grounds for appeal
672.72 (1) Any party may appeal against a disposition made by a court or a Review Board, or
a placement decision made by a Review Board, to the court of appeal of the province where
the disposition or placement decision was made on any ground of appeal that raises a question
of law or fact alone or of mixed law and fact.
1991, c. 43, s. 4;
1997, c.18, s. 88
APPELLANT'S FACTUM
Page 54
Automatic suspension of certain dispositions
672.75 The filing of a notice of appeal against a disposition made under paragraph 672.54(a)
or sections. 6 72.58 suspends the application of the disposition pending the determination of
the appeal.
1991, c. 43, s. 4
Application respecting dispositions under appeal
672.76 (1) Any party who gives notice to each of the other parties, within the time and in the
manner prescribed, may apply to a judge of the court of appeal for an order under this section
respecting a disposition or placement decision that is under appeal.
10
Discretionary powers respecting suspension of dispositions
(2) On receipt of an application made pursuant to subsection (1) a judge of the court of appeal
may, if satisfied that the mental condition of the accused justifies it.
(a) by order, direct that a disposition made under paragraph 672.54(a) or section
672.58 be carried out pending the determination of the appeal, notwithstanding
672.75;
(b) by order, direct that the application of a placement decision or a disposition made
under paragraph 672.54(b) or (c) be suspended pending the determination of the
appeal;
20
(c) where the application of a disposition is suspended pursuant to section 6 72.75 or
paragraph (b), make any other disposition in respect of the accused that is appropriate
in the circumstances, other than a disposition under paragraph 672.54(a) or section
672.58, pending the determination of the appeal;
(d) where the application of a placement decision is suspended pursuant to an order
made under paragraph (b), make any other placement decision that is appropriate in
the circumstances pending the determination of the appeal; and
(e) give any directions that the judge considers necessary for expediting the appeal.
1991, c. 43, s. 4
APPELLANT'S FACTUM
Page 55
Powers of court of appeal
672.78 (1) The court of appeal may allow an appeal against a disposition or placement
decision and set aside an order made by the court or Review Board, where the court of appeal
is of the opinion that
(a) it is unreasonable or cannot be supported by the evidence;
(b) it is based on a wrong decision on a question of law; or
(c) there was a miscarriage of justice.
10
(2) The court of appeal may dismiss an appeal against a disposition or placement decision
where the court is of the opinion
(a) that paragraphs (1)(a), (b) and (c) do not apply; or
(b) that paragraph (l)(b) may apply, but the court finds that no substantial wrong or
miscarriage of justice has occurred.
1991, c. 43, s. 4

Appellant Brian-Conception

Transcription

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