Ducharme v. Hudson, 2021 ONCA 151

Ducharme v. Hudson

Ontario Reports Court of Appeal for Ontario Harvison Young J.A. March 8, 2021 155 O.R. (3d) 281 | 2021 ONCA 151

Case Summary

Appeal — Stay pending appeal — Doctor proposing to treat not criminally responsible patient with antipsychotic drugs — Patient claiming not to suffer mental illness and not consenting to medication — Patient appealing decision of Consent and Capacity Board that patient lacked capacity to consent — Patient taking no steps to have appeal heard — Doctor obtaining order to have patient treated — Patient's motion to stay treatment pending appeal of treatment order dismissed — No serious question to be determined on appeal and no irreparable harm — Balance of convenience did not favour a stay — Not in interests of justice to grant stay — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 18, 19.

Criminal law — Mental disorder — Doctor proposing to treat not criminally responsible patient with antipsychotic drugs — Patient claiming not to suffer mental illness and not consenting to medication — Patient appealing decision of Consent and Capacity Board that patient lacked capacity to consent — Patient taking no steps to have appeal heard — Doctor obtaining order to have patient treated — Patient's motion to stay treatment pending appeal of treatment order dismissed — No serious question to be determined on appeal and no irreparable harm — Balance of convenience did not favour a stay — Not in interests of justice to grant stay — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 18, 19.

Health care — Consent to treatment — Doctor proposing to treat not criminally responsible patient with antipsychotic drugs — Patient claiming not to suffer mental illness and not consenting to medication — Patient appealing decision of Consent and Capacity Board that patient lacked capacity to consent — Patient taking no steps to have appeal heard — Doctor obtaining order to have patient treated — Patient's motion to stay treatment pending appeal of treatment order dismissed — No serious question to be determined on appeal and no irreparable harm — Balance of convenience did not favour a stay — Not in interests of justice to grant stay — Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 18, 19.

The appellant was a patient at a high-security forensic hospital after having been being found not criminally responsible on account of mental disorder in relation to charges against him. The respondent was a doctor in charge of the appellant's care. He diagnosed the appellant with unspecified schizophrenia spectrum and other psychotic disorder and proposed to treat him by an injection of antipsychotic medication lasting approximately three months. The appellant did not believe that he suffered from mental illness and did not consent to taking the medication. The Consent and Capacity Board upheld a finding by the respondent that the appellant lacked capacity to consent to treatment. The appellant appealed the decision of the Board, but took no steps to have the appeal heard. The respondent succeeded in a motion to authorize treatment before the appeal was heard. During the hearing of the motion, the appellant indicated an intention to appeal a negative decision, so the motion judge suspended the coming into effect of his order. The appellant brought a motion for a stay of the treatment order pending appeal.

Held, the motion should be dismissed.

There was not a serious question to be determined on the appeal. It was not clear that the appellant would be willing or able to instruct counsel or accept and cooperate with the assistance provided by amicus. He acknowledged that his main goal was to prevent the administration of the medication and that he would rather spend the rest of his life in his cell rather than be medicated. The motion judge scrupulously applied the appropriate test to be considered in granting a treatment order. The evidence filed by the respondent and accepted by the motion judge was extensive and clearly explained in the reasons, which were owed deference. As a result, the chances of success on the appeal of the order authorizing treatment were very weak.

The appellant would not suffer irreparable harm from a stay not being granted. There was no denying that, given the appellant's opposition to treatment, the intrusion on his bodily integrity necessary to administer the injection would be significant, though brief. The evidence overwhelmingly supported the respondent's position that the treatment would dramatically ameliorate the appellant's psychosis and delusions. The motion judge considered whether there was a less intrusive way of achieving a better life for the appellant. His conclusion that a single injection lasting three months would be minimally intrusive was well supported in his reasons and required deference.

The balance of convenience did not favour granting a stay. Although the respondent had no personal interest in the matter, harm to third parties or non-parties was a relevant consideration. If the stay were granted, hospital staff would continue to be at risk from the appellant's behaviour and his potentially explosive mood. On the other hand, the appellant would suffer harm to his bodily integrity by the stay not being granted and the treatment being administered. The risk of harm to the hospital staff was greater than the risk to the appellant.

It was not in the interests of justice to grant a stay. When the appellant was not medicated he could be violent and he experienced psychotic delusions that caused him obvious suffering. When he was medicated he was appropriately social and his health improved. The motion judge found, after careful consideration, that the appellant's case met each of the statutory criteria for treatment. A stay would have unnecessarily prolonged his suffering.

Cases referred to

• BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, [2011] O.J. No. 4279, 283 O.A.C. 321, 2011 ONCA 620
• Belton v. Spencer, [2020] O.J. No. 4168, 2020 ONCA 623, 58 C.P.C. (8th) 16
• Buccilli v. Pillitteri, [2013] O.J. No. 6110 (C.A.)
• Circuit World Corp. v. Lesperance (1997), , 33 O.R. (3d) 674, [1997] O.J. No. 2081, 100 O.A.C. 221 (C.A.)
• Ducharme v. Hudson (2021), 155 O.R. (3d) 25, [2021] O.J. No. 792, 2021 ONSC 1286 (S.C.J.)
• M & M Homes Inc. v. 2088556 Ontario Inc., [2020] O.J. No. 721, 2020 ONCA 134, 51 C.P.C. (8th) 253
• RJR-MacDonald Inc. v. Canada (Attorney General), , [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, 60 Q.A.C. 241, 54 C.P.R. (3d) 114

Statutes referred to

• Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A, ss. 17, 18, (1), (3), (d)(ii), 19, (1), (2), (b)

Rules and regulations referred to

• Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 63.02(1)

Authorities referred to

• Sopinka, John, Mark A. Gelowitz & W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed. (Toronto: LexisNexis Canada, 2018)

MOTION to stay a treatment order of Myers J., reported at (2021), 2021 ONSC 1286, 155 O.R. (3d) 25, [2021] O.J. No. 792 (S.C.J.), pending appeal.

Counsel:

Christopher Ducharme, acting in person. Antonietta F. Raviele, appearing as amicus curiae. Julia L. Lefebvre and James P. Thomson, for responding party.

Judge:

HARVISON YOUNG J.A. (motion judge): —

A. Overview

1Mr. Ducharme, the moving party and appellant on appeal, is a patient at Waypoint Centre for Mental Health Care, which is a high-security forensic hospital in Penetanguishene. He is detained as a result of being found not criminally responsible on account of mental disorder in relation to criminal charges approximately five years ago. He has been diagnosed with "unspecified schizophrenia spectrum and other psychotic disorder". Dr. Hudson, the responding party and respondent on appeal, is responsible for his care.

2The Consent and Capacity Board (the "Board") upheld Dr. Hudson's finding that Mr. Ducharme lacks capacity to consent to treatment. Mr. Ducharme filed a notice of appeal with the Superior Court on the same day that the Board made its decision, July 24, 2020. Mr. Ducharme has not taken steps to advance the appeal since then. Nonetheless, because Mr. Ducharme is appealing the Board's decision confirming Dr. Hudson's finding that Mr. Ducharme lacks capacity to consent to treatment, s. 18 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A (the "Act") suspends the commencement of treatment until the appeal has been determined.

3In the meantime, Dr. Hudson proposes to treat Mr. Ducharme with antipsychotic medication to be administered by injection that would last approximately three months. Mr. Ducharme strongly opposes such treatment on grounds that will be discussed below. As provided for in s. 19(1) of the Act, Dr. Hudson moved before the Superior Court for an order to authorize this treatment pending the appeal of the Board's decision. The motion judge granted the order, giving reasons that are reported at Ducharme v. Hudson (2021), 155 O.R. (3d) 25, [2021] O.J. No. 792, 2021 ONSC 1286 (S.C.J.). During the hearing before the motion judge, Mr. Ducharme indicated that he intended to appeal the order. Accordingly, the motion judge suspended the coming into effect of his order to permit Mr. Ducharme to seek a stay at this court pending appeal of the motion judge's order. The suspension expired on March 1, 2021.

4Mr. Ducharme's motion for a stay of the motion judge's order authorizing treatment was heard on March 2, 2021 before me. Later that day, I advised the parties at about 4:00 p.m. that the stay motion was dismissed with brief reasons to follow. These are those reasons.

5The factual context, along with Mr. Ducharme's submissions before the motion judge, is fully set out in the motion judge's reasons and need not be repeated here. The narrow issue before me is whether a stay pending appeal of the motion judge's order should be granted.

B. Procedure Under the Act

6The Act provides the statutory context for Mr. Ducharme's present motion for a stay. Mr. Ducharme's appeal of the Board's decision, which confirms Dr. Hudson's finding that Mr. Ducharme lacks capacity to consent to treatment, engages the application of s. 18 through s. 18(1). Thus, s. 18(3), particularly s. 18(3)(d)(ii), applies in Mr. Ducharme's case to suspend the commencement of Dr. Hudson's proposed treatment of antipsychotic medication until the appeal of the Board's decision has been determined:

18(1) This section applies if,

(a) a health practitioner proposes a treatment for a person and finds that the person is incapable with respect to the treatment;

(b) before the treatment is begun, the health practitioner is informed that the person intends to apply, or has applied, to the Board for a review of the finding; and

(c) the application to the Board is not prohibited by subsection 32 (2).

Same

(3) In the circumstances described in subsections (1) and (2), the health practitioner shall not begin the treatment, and shall take reasonable steps to ensure that the treatment is not begun,

(a) until 48 hours have elapsed since the health practitioner was first informed of the intended application to the Board without an application being made;

(b) until the application to the Board has been withdrawn;

(c) until the Board has rendered a decision in the matter, if none of the parties to the application before the Board has informed the health practitioner that he or she intends to appeal the Board's decision; or

(d) if a party to the application before the Board has informed the health practitioner that he or she intends to appeal the Board's decision,

(i) until the period for commencing the appeal has elapsed without an appeal being commenced, or

(ii) until the appeal of the Board's decision has been finally disposed of.

7However, s. 19 specifically contemplates circumstances where, as here, there is a treatment proposed to be administered before the appeal of the Board's decision has been determined. As Dr. Hudson was proposing to treat Mr. Ducharme with antipsychotic medication before the final disposition of Mr. Ducharme's appeal of the Board's decision before the Superior Court, Dr. Hudson moved before the Superior Court for an order to authorize the treatment pending the appeal of the Board's decision, pursuant to s. 19:

Order authorizing treatment pending appeal

19(1) If an appeal is taken from a Board or court decision that has the effect of authorizing a person to consent to a treatment, the treatment may be administered before the final disposition of the appeal, despite section 18, if the court to which the appeal is taken so orders and the consent is given.

8Section 19(2) sets out the criteria to be considered and applied by the court in order that such an order authorizing treatment may be granted:

Criteria for order

19(2) The court may make the order if it is satisfied,

(a) that,

(i) the treatment will or is likely to improve substantially the condition of the person to whom it is to be administered, and the person's condition will not or is not likely to improve without the treatment, or

(ii) the person's condition will or is likely to deteriorate substantially, or to deteriorate rapidly, without the treatment, and the treatment will or is likely to prevent the deterioration or to reduce substantially its extent or its rate;

(b) that the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least restrictive and least intrusive treatment that meets the requirements of clauses (a) and (b); and

(d) that the person's condition makes it necessary to administer the treatment before the final disposition of the appeal.

9The motion judge granted the order authorizing treatment. Because Mr. Ducharme expressed his intention to appeal the order during the hearing, the motion judge suspended the coming into effect of the order to permit Mr. Ducharme to seek a stay. The issue before me at this point is whether Mr. Ducharme has satisfied the criteria for the granting of a stay.

C. The Test Governing the Granting of a Stay

10The principles applicable to a motion to stay an order pursuant to rule 63.02(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 are well known. In RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, at p. 334 S.C.R., the Supreme Court of Canada articulated a three-part test for obtaining a stay of a judgment pending appeal: (1) whether there is a serious question to be tried (i.e., to be determined on the appeal); (2) whether the moving party would suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours granting the stay.

11These components of the test are not watertight compartments; the strength of one may compensate for the weakness of another: see Circuit World Corp. v. Lesperance (1997), 33 O.R. (3d) 674, [1997] O.J. No. 2081 (C.A.), at p. 677 O.R. As well, they are interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay: see BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, [2011] O.J. No. 4279, 2011 ONCA 620, 283 O.A.C. 321, at para. 16; Circuit World, at p. 677 O.R. The party moving for the stay bears the onus of proving that it should be granted.

12The factors to be considered by a motion judge "are generally designed to assess the prejudice to the parties if the order sought is granted or refused": John Sopinka, Mark A. Gelowitz & W. David Rankin, Sopinka and Gelowitz on the Conduct of an Appeal, 4th ed. (Toronto: LexisNexis Canada, 2018), at §2.187.

(a) Is there a serious question to be determined on the appeal?

13Mr. Ducharme has filed a notice of appeal with respect to the motion judge's order. He made a number of submissions before this court, most of which he also made before the motion judge:

• There is no need for forced medication. He advised Dr. Hudson that all Dr. Hudson needs to do is to give him access to a recording studio so that he can prepare a demo tape of his musical and dance talent for the music industry. He says that he has promised Dr. Hudson that he will acknowledge that he suffers from grandiose delusions and agree to treatment if the demo does not make him a hit as soon as it hits the music industry. The merit of this offer, he says, is proven by the fact that Dr. Hudson did not accept the offer, but rather applied for an order that he be forcibly medicated.
• It is the medication itself that causes him to be violent, not the other way around. All but one of his violent acts in the past occurred when he was medicated.
• He is not ill. Rather, the authorities, including Waypoint, obtain millions of dollars by having him and people like him detained and prevented from telling the world what is really going on there and the extent to which he and others are mistreated. Were he permitted to become a music sensation, he would have a platform to expose this scam along with the mistreatment of patients imposed on himself and people like him. Dr. Hudson would go to jail.
• He was shocked by the extent to which his own witnesses at the hearing turned against him and committed perjury.
• His appeal is not likely to succeed. (At least he seemed to implicitly acknowledge this. However, it was unclear whether he was referring to the appeal from the motion judge's order or the pending appeal to the Superior Court of the underlying Board finding that he lacked capacity to make treatment decisions.)

14Moreover, he strongly objects to the respondent's position that he has not pointed to any legal reason why treatment should be delayed because "the stuff they are doing here is not legal". By way of example, he stated that when he had a nervous breakdown, they put him in restraints, and this has led to PTSD.

15The respondent Dr. Hudson takes the position that there is little merit to the appeal of the motion judge's order. The motion judge heard viva voce evidence from the parties, including two witnesses called by Mr. Ducharme.

16The bar for a finding that there is a serious question to be tried is admittedly low: see RJR-Macdonald, at p. 337 S.C.R.; Belton v. Spencer, [2020] O.J. No. 4168, 2020 ONCA 623, 58 C.P.C. (8th) 16, at para. 25. In my view, the chances of a successful appeal of the motion judge's order are slim, at best.

17First, the underlying question of his capacity depends on the outcome of the appeal from the Board finding that he lacks capacity. Although Mr. Ducharme filed a notice of appeal on the same day that the Board decision was rendered, he has taken no steps to further or perfect the appeal since. The motion judge is the case management judge on this matter, and as his reasons indicate, an expedited appeal from the Board decision, if under two hours, could be heard in late April. While amicus indicated before me that she is willing to assist Mr. Ducharme with filing a factum and completing the procedural steps necessary for the appeal of the Board's decision to go forward, it is not clear to me that he will be willing or able to either instruct counsel or accept and cooperate with the assistance provided by amicus. This will dramatically affect the chances of success on the appeal of the Board's order. In light of this, the chances of success on the appeal of the motion judge's order authorizing treatment would be very weak.

18Second, Mr. Ducharme acknowledged during the hearing before me that his main goal is to prevent the administration of the medication which he believes causes rather than alleviates his symptoms. He stated that his quality of life in his cell is not so bad; he has a floor to dance on, has people who do his laundry, and can continue to write letters to the outside world to communicate the abuse that is going on in the institution. He said he would rather spend the rest of his life in that cell than be medicated. This contributes to my concern that his appeal to the Superior Court, if it is heard at all, will be unlikely to succeed.

19Finally, and importantly, the motion judge scrupulously applied the appropriate test to be considered in granting an order under s. 19(2). He required the respondent to take him specifically through the evidence on each point. He carefully listened to Mr. Ducharme's submissions, as evidenced by the fact that he set them out in his reasons in significant detail. He related the evidence and the facts that he found to each of the criteria set out in s. 19(2). The evidence filed by the respondent and accepted by the motion judge was extensive and clearly explained in his reasons. This court owes them deference.

(b) Would the moving party suffer irreparable harm if the stay is not granted?

20The irreparable harm stage of the analysis focuses on the harm the moving party may suffer if the stay is not granted: see RJR-MacDonald, at pp. 340-41 S.C.R. A court must ascertain whether a refusal to grant the stay could so adversely affect the moving party's interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the stay motion: see RJR-MacDonald, at p. 341 S.C.R. "Irreparable", in this sense, refers to the nature of the harm suffered rather than its magnitude: see RJR-MacDonald, at p. 341 S.C.R. It is harm which either cannot be quantified in monetary terms or which cannot be cured: see RJR-MacDonald, at p. 341 S.C.R. Irreparable harm may occur where the failure to grant a stay would render any subsequent appeal moot: see Sopinka, Gelowitz & Rankin, at §2.192.

21While Mr. Ducharme did not directly address the irreparable harm test, his submissions make it clear that his position is that the proposed treatment is a very serious violation of his bodily integrity and he would rather spend his life in a cell than be medicated with drugs that make him "dumb" and "poop blood" and stop him from dancing. He explained that his mind did not stabilize until he had been off medication for over a year. This, he says, is evidenced by the fact that he has not hit anyone in the two years he has been off medication, which at 6'2" and 200 lbs, with martial arts training, he could have done had he wanted to. I note in passing that there was nothing in evidence before this court to support Mr. Ducharme's assertions of the undesirable side effects of the medications. He states that he is as capable as anyone of assessing the risk versus benefit consideration, which is a consideration under s. 19(2)(b).

22The respondent acknowledges that forced treatment will constitute an intrusion upon Mr. Ducharme's bodily integrity which would not be undone even if the motion judge's decision were to be overturned. He submits, however, that Mr. Ducharme will suffer irreparable harm if he does not receive treatment. The evidence, which the motion judge accepted, is that Mr. Ducharme will not improve spontaneously. Until he receives medication, he will remain psychotic and will suffer from delusions that result in threatening behaviour, acting out violently, and other destructive conduct such as smearing feces on his walls. The lack of medication generally increases his risk to the degree that he is kept in seclusion. With treatment, the expectation is that he will be able to obtain greater freedom at Waypoint.

23There is no denying the reality that, given Mr. Ducharme's opposition to treatment, along with his size and general state, the intrusion on his bodily integrity necessary to administer the injection will be significant, though, as the motion judge noted, brief. And the evidence overwhelmingly supports the respondent's position that it will dramatically ameliorate Mr. Ducharme's psychosis and delusions. As the motion judge noted, this evidence includes at least three occasions when Mr. Ducharme was medicated and saw his health improve. For example, a clinical note observed that when he was transferred to Ontario Shores, and complying with medications, he was pleasant and calm during interactions, generally reported his mood as being "good", and socialized appropriately with co-peers and engaged well with staff.

24Nor did the motion judge neglect to consider whether there was a less intrusive way of achieving a better life for Mr. Ducharme. His conclusion that a single injection lasting three months would be minimally intrusive was well supported in his reasons and requires deference from this court. In my view, Mr. Ducharme would not suffer irreparable harm if the stay were not granted.

(c) Does the balance of convenience favour granting a stay?

25The balance of convenience analysis considers which of the parties would suffer greater harm from the granting or refusal of the motion to stay: see RJR-MacDonald, at p. 342 S.C.R. The Supreme Court found it appropriate to consider the public interest and rejected an approach that would exclude consideration of any harm not directly suffered by a party to the motion: see RJR-MacDonald, at p. 344 S.C.R., decided in the context of an interlocutory Charter proceeding. The interests of third parties may also be a relevant consideration at the balance of convenience stage: see, e.g., M & M Homes Inc. v. 2088556 Ontario Inc., [2020] O.J. No. 721, 2020 ONCA 134, 51 C.P.C. (8th) 253, at para. 46; Buccilli v. Pillitteri, [2013] O.J. No. 6110 (C.A.), at para. 48.

26The respondent submitted that this aspect of the test is not useful because the question has little or no applicability in this case. Dr. Hudson has no personal interest in the outcome.

27I agree with the respondent that Dr. Hudson has no personal interest in the matter and would not be harmed personally by the granting or refusal of the stay. However, in this case, harm to third parties or non-parties is relevant. If the stay were granted, staff at the hospital would continue to be at risk from Mr. Ducharme's behaviour and his mood, which can be explosive and would require staff to continue to be vigilant at all times. Setting aside the question of whether nurses and staff at Waypoint are really "third parties" in the sense discussed in M & M and Buccilli, it is clear that they would suffer harm if the stay were granted. On the other hand, Mr. Ducharme would suffer harm to his bodily integrity if the stay is not granted and treatment is administered. I have concluded above that such harm to Mr. Ducharme is not irreparable. In this case, third parties including the staff at Waypoint would suffer greater harm than Mr. Ducharme because they are at greater risk of physical harm given his explosive nature when untreated, and the balance of convenience does not favour granting a stay.

(d) Is it in the interests of justice to grant a stay?

28I have concluded that all three components of the RJR-MacDonald test point in the direction of refusing the stay. This conclusion finds further support in the overarching consideration of whether it is in the interests of justice to grant a stay.

29If the motion judge's order is stayed, Mr. Ducharme will remain untreated while he pursues his two appeals. As I have indicated, I am not satisfied that these appeals can proceed as quickly or efficiently as possible while Mr. Ducharme is untreated, with the result that he will remain in seclusion, with psychotic delusions, for some considerable time. He would also be untreated in his proceedings before the Ontario Review Board. I am satisfied from the record before me, including Mr. Ducharme's own submissions, that he will continue to constitute the risk he poses to others until treatment reduces his aggression and threatening behaviour.

30Mr. Ducharme is an intelligent and articulate man in a tragic situation. When medicated, he has been appropriately social. A clinical note observed that when medicated, he socialized appropriately with co-peers and engaged well with staff. As the motion judge noted, when Mr. Ducharme was medicated in the past, he saw his health improve. With decreases in symptoms, such as violence, he experienced greater liberty in his living conditions and could be released from high-security isolation and perhaps obtain greater privileges in the facility.

31By contrast, when he has not been medicated, he has at times been violent. As a result, he has lived in a small cell for roughly two years and has only left his cell in restraints. Despite Mr. Ducharme's assertions to the contrary before me, I am unable to accept his submission that he would prefer to stay in his tiny cell, with a floor to dance on, free to send letters to let the world know of his mistreatment. His current existence is an extremely unhappy one in which he is spending virtually all his time in a very small area, cannot be taken out without restraints, and experiences psychotic delusions that cause him obvious suffering.

32He clearly has potential that is currently untapped, although I cannot know whether that potential extends to the realm of music and dance. However, he has been a prisoner not only because of the small cell he has lived in for at least two years, but also because of the psychosis from which he suffers.

33Our law takes the right to bodily integrity very seriously indeed, and I would observe that the entire process set out in ss. 17-19 of the Act reflects that very important principle. But the law recognizes that in certain cases, this right must give way to permit some intrusion upon that bodily integrity in order to allow that person a better quality of life when they are unable to comprehend the need for or benefits of treatment because of their mental illness. As the structure of the legislation reflects, this is something that the law permits in particular circumstances. That is precisely why the criteria in s. 19(2) are so important.

34The motion judge found, after careful consideration, that Mr. Ducharme's case met each of the criterion. I am unable to find that the interests of justice warrant granting a stay of the order authorizing treatment which would, as the motion judge noted, have the effect of prolonging his suffering unnecessarily.

D. Disposition

35The motion for a stay pending appeal is dismissed.