Capano v. Centre for Addiction and Mental Health
DIVISIONAL COURT FILE NO.: 175/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND SPROAT JJ.
BETWEEN:
ROCCO CAPANO Appellant
– and –
CENTRE FOR ADDICTION AND MENTAL HEALTH (CAMH) Respondent
Ken J. Berger, for the Appellant
Janice E. Blackburn, for the Respondent
HEARD at Toronto: September 21, 2011
by the court (orally)
1Before dealing with the merits of this appeal, we invited Mr. Berger to address our concern that we had no jurisdiction to hear it.
2Mr. Capano appeals the decision of Brown J. pronounced March 18, 2010, in which he concluded at paragraph 42 of his Reasons:
“…that I should decline to exercise the habeas corpus jurisdiction of this court in respect of Mr. Capano’s continued detention as an involuntary patient at CAMH.”
3That conclusion was based upon Brown J.’s findings set out in paragraph 38 of his Reasons that:
In sum, the Mental Health Act and Health Care Consent Act, 1990, create a complete, comprehensive and expert procedure for review by a specialized tribunal of a decision to detain a person as an involuntary patient in a psychiatric hospital, including whether or not breaches of a patient’s procedural rights should result in revoking a certificate of involuntary admission that otherwise meets the statutory prerequisites for unlawful detention.
4Mr. Berger submits that we have jurisdiction pursuant to s.8 of the Habeas Corpus Act, R.S.O. 1990, 6 c. H.1 which provides:
8.1 Where a person confined or restrained at his or her liberty is brought before a judge upon a writ of habeas corpus ad subjiciendum and is remanded into custody upon the original order or warrant of commitment or by virtue of any warrant, order or rule of such judge, such person may appeal from the decision or judgment of the judge to the Divisional Court, and thereupon the writ of habeas corpus ad subjiciendum, the return thereto, and the affidavits, deposition, evidence, conviction and other proceedings shall be certified by the proper officer to the Divisional Court.
5In the case of R. v. Rosete, 2007 ONCA 590, 225 C.C.C. (3d) 548 at paras. 12 and 13, Doherty J.A. said on behalf of the Court of Appeal:
Habeas corpus applications have traditionally involved a two-stage process. At the first stage, the detained person seeks an order from the superior court directing that the writ of habeas corpus be issued commanding the jailer to bring the detained person before the superior court. At the second stage, conducted upon the return of the writ to the superior court with the detained person, the superior court inquires into the lawfulness of the detention … on the return of the writ, the court may, instead of determining the lawfulness of the detention, order the applicant’s detention continued and remit the matter to the inferior court to take such steps as the superior court believes will best further the ends of justice.
The traditional two-stage habeas corpus process is seldom followed today. It is usually agreed that the application should proceed at a single hearing in which the writ is taken to have been issued and the detained person brought before the court for a determination of the application on its merits.
6The decision of Brown J. does not reflect any such agreement being made in this case. Section 8 can therefore have no application to this matter.
7In our opinion, the order of Brown J. was a final order and any appeal from it must be to the Court of Appeal, not to this Court (see Courts of Justice Act, R.S.O. 1990, c. 43, s. 1).
8We should add, that had we found that we had jurisdiction, we would have declined to hear this appeal. On the record before us, no live controversy continues to exist. Mr. Berger candidly agreed that in the materials filed, there is no evidence of a continuing conflict between the parties nor is there evidence of other reason to hear the appeal.
9The issue is therefore moot. The appeal must therefore be quashed.
10No costs being demanded. No costs ordered.
JENNINGS J.
DAMBROT J.
SPROAT J.
Date of Reasons for Judgment: September 21, 2011
Date of Release: September 26, 2011
CITATION: Capano v. Centre for Addiction and Mental Health, 2011 ONSC 5585
DIVISIONAL COURT FILE NO.: 175/10
DATE: 20110921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, DAMBROT AND SPROAT JJ.
BETWEEN:
ROCCO CAPANO Appellant
– and –
CENTRE FOR ADDICTION AND MENTAL HEALTH (CAMH) Respondent
ORAL REASONS FOR JUDGMENT
Date of Reasons for Judgment: September 21, 2011
Date of Release: September 26, 2011