CITATION: Nelson v. Livermore, 2016 ONSC 1262

COURT FILE NO.: DC-13-0314

DATE: 20160222

ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE MATTER OF an appeal from a decision of the

Consent and Capacity Board,

Pursuant to the Mental Health Act, R.S.O. 1990, c. M.7,

as amended

AND IN THE MATTER OF

RODNEY NELSON

a patient at

WAYPOINT CENTRE FOR MENTAL HEALTH CARE – OAKRIDGE SITE

Penetanguishene, Ontario

BETWEEN:

RODNEY NELSON

Appellant

– and –

DR. C. LIVERMORE

Respondent

– and –

THE ATTORNEY GENERAL FOR ONTARIO

Intervener

S. Fraser, for the Appellant

J. Blackburn, for the Respondent

H. Pitcher and H. Schwartz, for the Intervener

HEARD: December 15 and 16, 2015

HEALEY J.

Nature of the Proceeding

[1] This is an appeal by Rodney Nelson pursuant to s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A [HCCA]. He appeals from a decision of the Consent and Capacity Board dated March 15, 2013[^1] which upheld the renewal of a certificate of involuntary admission under the Mental Health Act, R.S.O. 1990, c. M.7 [MHA], thereby continuing the appellant’s detention as an involuntary patient at Waypoint Centre for Mental Health Care in Penetanguishene, Ontario.

[2] The appellant has been civilly detained since March 4, 2005 pursuant to an initial Form 1, and thereafter under certificates of involuntary admission and renewals under the MHA.

[3] In addition to appealing on the grounds that he did not meet the criteria under the MHA for civil committal on March 14, 2013, the appellant also seeks to set aside the chain of civil committal certificates and renewals, arguing that the initial Form 1 executed in March 2005 at the Regional Treatment Center (“RTC”) at Kingston Penitentiary was defective on two bases. First, the quality of the physician’s examination of him. Second, that the execution of a Form 1 on expiry of a prison sentence—referred to as “psychiatric gating”—is unconstitutional, rendering his current detention unlawful. He challenges the constitutional validity of s. 20(1) of the MHA, arguing that his detention pursuant to that section of the MHA violates his rights under ss. 7, 9, 11(h) and 12 of the Canadian Charter of Rights and Freedoms.

Orders Sought

[4] The appellant asks this court to set aside the decision of the Board, rescind the certificate of renewal, and order his release from custody. Further, the appellant asks for a remedy under s. 24(1) of the Charter to respond to the alleged violations of his Charter rights. He requests that the remedy include declaring his ongoing detention to be unlawful, rescinding the certificate of renewal of involuntary admission, and ordering his immediate release.

[5] The sole statutory respondent to the within appeal, Dr. Craig Livermore, seeks to have the appeal dismissed on the basis that the legislative criteria under the MHA for renewal of the Form 4 Certificate of Renewal of Civil Committal were met at the time of the Board hearing on March 14, 2013, and the Board committed no errors of law or mixed fact and law.

[6] Additionally, Dr. Livermore requests that this court not entertain the relief sought by the appellant in respect of the Form 1 or under the Charter, on the basis of res judicata and stare decisis.

[7] The intervener, the Attorney General for Ontario (“Ontario”), adopts the same position as Dr. Livermore regarding the validity and constitutionality of the Form 1, and likewise opposes the granting of any remedy pursuant to s. 24(1) on the ground that the appellant has not established any breach of the Charter.

[8] Both the respondent and the intervener (“the respondents”) seek an order dismissing the appeal.

[9] The appellant bears the onus with respect to the appeal under s. 80 of the MHA and with respect to establishing that there has been a breach of his Charter rights entitling him to any remedy.

History of the Proceeding

[10] This appeal was initially argued over two days in December 2014 before Howden J. While his ruling in the matter was still under reserve, the Court of Appeal released its decision in P.S. v. Ontario, 2014 ONCA 900, 123 O.R. (3d) 651. As a result of his consideration of the P.S. decision, Howden J. dismissed the appeal as moot, finding that he was bound by the doctrine of stare decisis as a result of P.S. (Nelson v. Livermore, 2014 ONSC 7477, [2014] O.J. No. 6318, at paras. 4, 9).

[11] Mr. Nelson appealed Howden J.’s ruling to the Ontario Court of Appeal. The parties all agreed that he had erred in finding the entire appeal to be moot and that he committed reversible legal error in declining to adjudicate on the matters that remained live. The appeal was allowed on October 15, 2015 and the matter remitted to the Superior Court to be heard on an expedited basis (Nelson v. Livermore, 2015 ONCA 688, [2015] O.J. No. 5276, at para. 18).

Standard of Review

[12] Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722, is the leading case on the standard of review to be applied to a decision of the Board. The standard of review is reasonableness, absent an error of law. In Starson the Board was also recognized as an expert tribunal, having relative expertise in determinations of capacity: at paras. 84, 86.

[13] “Reasonableness” in this context has been defined as a deferential standard requiring recognition of the fact that certain questions that come before administrative tribunals do not lend themselves to one specific result; there may be a number of possible reasonable conclusions. A reviewing court will often be forced to accept that a decision is reasonable even if it is unlikely that the reviewing court would have reasoned or decided as the tribunal did at first instance: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 46; and Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47-48. The standard of reasonableness basically involves asking the following question: “after a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?”: Ryan, at para. 47; and Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 56.

[14] A decision is unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. The reasons are to be taken as a whole; a reviewing court is not to seize upon one or more mistakes or elements of the decision which do not affect the decision as a whole: Ryan, at paras. 55-56.

[15] A judge presiding on an appeal under the HCCA, therefore, is required to apply a deferential standard, not submitting blindly to the determinations of the tribunal, but giving respectful attention to the decision-making process of the Board with regard to both the facts and the law. The reviewing court must assess whether a decision is supported by the reasoning of the tribunal or decision-maker, rather than engaging in de novo reasoning on the matter: Ryan, at para 47. The judge must inquire into the qualities that make a decision reasonable, having regard to the concepts of “justification, transparency and intelligibility within the decision-making process” and must ensure that the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir, at para. 47.

[16] Absent a successful motion for the admission of fresh evidence pursuant to s. 80(9) of the HCCA, which the appellant has not argued, the court must consider the appeal on the basis of the record only. If the reasons allow the reviewing court to understand why the tribunal made its decision and to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 12, 13, 15, 16 and 18.

[17] In summary, when a decision is reviewed on the reasonableness standard, absent demonstrated unreasonableness, there is no basis for judicial interference with the decision of the Board so long as its decision is within a range a conclusions that could reasonably have been reached on the law and the evidence before it.

[18] The powers of this court on this appeal are set out in s. 80(10) of the HCCA as follows:

On the appeal, the court may,

(a) exercise all the powers of the Board;

(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;

(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.

[19] All of the parties agree upon this court’s inherent jurisdiction to determine whether the legislation or the actions of an individual state actor have infringed any of the appellant’s Charter­-protected rights.

The Statutory Regime for Involuntary Committal under the Mental Health Act[^2]

[20] As previously stated, the appellant attacks the entire process by which he has been involuntarily detained, beginning with the initial Form 1[^3] executed in March 2005, by Dr. Hillier at the RTC at Kingston Penitentiary. As Dr. Hillier wrote in his Institutional Consult Letter of February 24, 2005,[^4] he had reached the conclusion that the appellant’s clinical presentation met the criteria for completing the Form 1, Application for Psychiatric Assessment, pursuant to s. 15 of the MHA. That consult letter makes clear that Dr. Hillier executed the Form 1 on the basis that he had reasonable cause to believe that the appellant “has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him”. Dr. Hillier was further of the opinion that the appellant “is apparently suffering from mental disorder of the nature or quality that likely will result in serious bodily harm to another person” within the scope of s. 15(1) of the MHA.

[21] Once executed, a Form 1 is sufficient authority for seven days for anyone to take the named person in custody to a psychiatric facility forthwith, and thereafter to detain, observe, examine, and restrain the person for not more than 72 hours: MHA, s. 15(4), (5). Once the period of detention at the psychiatric facility begins, a physician must promptly give the person written notice of the application, stating the reasons for detention and indicating that the person has the right to retain and instruct counsel without delay: MHA, s. 38.1; and Form 42.

[22] Within 72 hours of the person entering the psychiatric facility and detention commencing, an attending physician is required to examine the person, who is the subject of the Form 1 application for assessment, to make one of three decisions:

(a) release the person;

(b) admit the person as a patient voluntarily or informally; or

(c) admit the person as an involuntary patient (“civil committal”) by execution of a Form 3, Certificate of Involuntary Admission, if the test for civil committal set out in the MHA is met: MHA, s. 20(1)(c), (1.1), (5).

[23] The attending physician who executes a Form 3 must be a different physician than the one who executed the Form 1: MHA, s. 20(2).

[24] There are two tests for civil committal set out in the MHA. The one relevant to the appellant’s case was set out at s. 20(5):[^5]

The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient, unless the patient remains in the custody of the psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

[25] A Form 3, Certificate of Involuntary Admission, is renewable with successive Certificates of Renewal, Form 4; the criteria for renewal are identical to the criteria for a Form 3. A Form 3 is valid for 14 days. A first Form 4 is valid for one month, a second renewal for two months, and a third renewal for three months. Prior to the Court of Appeal’s decision in P.S., there could be subsequent renewals of Form 4 after the third one, each being valid for further three month period. This is what occurred, multiple times, in the case of the appellant, with the Form 4 renewal that was confirmed by the Board on March 15, 2013 being the latest such form to be signed by a psychiatrist.

[26] The court in P.S. concluded that the review procedures and the jurisdiction conferred upon the Board in relation to involuntary committals were tailored to meet the exigencies of short-term committals. The Board had not historically been mandated under the MHA to provide oversight over involuntary patients for the indefinite future: P.S., at para. 193.

[27] As will be described further below, as a result of P.S., the words “or subsequent” in s. 20(4)(b)(iii) of the MHA which allowed for potentially continuous detention were found to be unconstitutional. As a result, the Ontario government passed the Mental Health Statue Law Amendment Act, 2015, S.O. 2015, c. 36, which came into force on December 21, 2015.[^6] This Act does not change the criteria for executing a Form 1, nor does it change the criteria for civil committal such as that set out in s. 20(5) of the MHA. However, for those patients who continue to meet the committal criteria after the expiry of a third Form 4, the amended legislation requires that a certificate of continuation be completed. A notice of continuation can be renewed every three months, it is reviewable by the Board and the Board has additional jurisdiction to address the conditions of detention: MHA, s. 20(1.1), (4), (5).

[28] An attending physician who completes either a Form 3 or a Form 4 must promptly give the patient written notice informing the patient of the reasons for detention. The patient must also be informed that the patient is entitled to a hearing before the Board, that the patient is entitled to retain and instruct counsel without delay, and that the patient has the right to apply to the Board for a transfer to another psychiatric facility: MHA, s. 38(1), (2); and Form 30. The same attending physician must also promptly notify a “rights advisor” of the completion of a Form 3 or a Form 4 committal certificate: MHA, s. 38(1). The rights advisor is statutorily obliged to promptly meet with the patient and explain to him or her the significance of the certificate, the right to have it reviewed by the Board, and, where applicable, the right to apply to the Board for a transfer to a different hospital. Where the patient asks for assistance, the rights advisor must also assist the patient to apply for a hearing to challenge the committal before the Board and to help the patient to obtain legal services: MHA, s. 38(3), (9).

[29] The attending physician executing either a Form 3 or a Form 4 must also file the form with the officer in charge of the psychiatric facility. A separate obligation then arises on the officer in charge, or delegate, to review the form to ensure the document is properly completed, failing which the officer in charge “shall release the person”, unless the patient is re-examined: MHA, s. 20(3), (8).

[30] On execution of a Form 3 or any Form 4, the detained patient (or anyone else on his or her behalf) has the right to apply to the Board to inquire into whether or not the prerequisites set out in the MHA for admission or continuation as an involuntary patient are met: MHA, s. 39(1); and Form 16.

[31] The MHA also required that on the completion of a fourth Form 4, and every fourth Form 4 thereafter, the patient is deemed to have applied to the Board for a hearing. Notice to the Board of the need to schedule the mandatory hearing must be given by the officer in charge of the psychiatric facility to the Board. This mandatory hearing must take place and cannot be waived by the civilly committed patient: MHA, s. 39(4), (5); and R.R.O. 1990, Reg. 741, s. 9.

[32] As a further procedural protection for the patient, the Minister of Health and Long-Term Care, the Deputy Minister, or the officer in charge of the facility may also apply to the Board for a review of an involuntary patient’s civil committal at any time: MHA, s. 39(3).

[33] Civil committal hearings of the Board must be adjudicated by at least a three-person panel, comprised of legal, psychiatric, and lay members: MHA, s. 39(14).

[34] On an application to review a Form 3 or a Form 4, the MHA, s. 41(1), requires that the Board promptly review the patient’s status to determine whether or not the prerequisites set out in the MHA for admission as an involuntary patient continue to be met at the time of the hearing. The Board must “promptly” fix a time and place for the hearing. The hearing must begin within seven days of receipt of the application (unless otherwise agreed by the parties), and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, applies to the process: HCCA, ss. 75, 76.

[35] The Board may confirm the committal if the prerequisites for committal are met at the time of the hearing, but the Board is required to revoke the committal certificate if they are not: MHA, s. 41(2), (3).

[36] Parties to the Board hearing have a statutory right of appeal to a single judge of the Superior Court of Justice on a question of law, or fact, or both. Leave is not required: MHA, s. 48(1); and HCCA, s. 80.

The Impact of P.S. v. Ontario on this Appeal

[37] As earlier referenced, this is a rehearing of this appeal. The Court of Appeal disagreed with the conclusion of Howden J. that P.S. answered the questions raised on this appeal. At para. 16 of the appellate decision, Gillese J.A. stated that this appeal “requires a determination of whether the Form 1 was validly executed and whether Mr. Nelson’s ongoing detention violates his Charter rights.”

[38] Like Mr. Nelson, the appellant in P.S. had been transferred from the Kingston Penitentiary the day before completing his sentence. He was transferred to the Oak Ridge Division of Penetanguishene Mental Health Centre for a Form 1 assessment under s. 15 of the MHA. Both P.S. and Mr. Nelson were completing sentences for sexual offences; P.S. was completing a 45-month sentence for sexually assaulting a 12 year old boy. Both have been detained on the ground that they suffer from a mental disorder likely to result in serious bodily harm to another person unless they remain in a psychiatric facility. P.S.’s ongoing committal under the MHA had lasted for 19 years at the time that his case was heard by the Court of Appeal in September 2014. Throughout that time P.S. had been detained at the Oak Ridge Division, a maximum security facility, even though his doctors had unanimously determined that he did not require that level of security. His physicians, however, continuously determined that P.S. posed a risk to public safety. Initially committed based on a diagnosis of pedophilia/paraphilia, P.S. had no insight into his illness or the criminality of sexual conduct with children or adolescents. His circumstances were outlined in the decision, at paras. 52-53, as follows:

The CCB consistently found that the appellant met the test for certification under the MHA. He suffers from a mental disorder and unless detained in a psychiatric facility, the disorder would likely result in serious bodily harm to another person. It also appears from the CCB decisions that the appellant has been a difficult patient to treat. He has at times refused treatment and the services of some interpreters. He has revealed a lack of understanding of his disorder and the wrongful nature of his conduct. On the other hand, it is also clear from the CCB’s decisions that these difficulties were to a significant degree the product of his inability to communicate without sign language interpretation. As observed by the CCB, he was not provided the signing assistance he needs for significant periods of time.

The other consistent themes running through the CCB’s decisions are that the appellant’s therapeutic and rehabilitative needs are not being met, he does not require a maximum security facility and it would be in his interest to be transferred to another facility or even into a community setting. However, the CCB continuously recognized that its jurisdiction was limited to the issue of whether or not the appellant was certifiable, and that accordingly it had no authority to order that the appellant be detained under less restrictive circumstances.

[39] P.S. is deaf and has difficulty communicating, having developed only limited sign language skills. He also has limited English language skills, and reads at a grade 1.9 level. As involuntary patients whose detention has lasted longer than six months, which comprises two per cent of the patient population committed under the MHA, both Mr. Nelson and P.S. are “long-term” detainees as defined by Sharpe J.A. in P.S., at para. 26.

[40] The appeal in P.S. focused on the constitutionality of the provisions of the MHA that allow for the involuntary committal of long-term detainees. Although P.S.’s initial application alleged breaches of multiple Charter rights, the appeal was disposed of on the basis of ss. 7 and 15 of the Charter. Unlike this case, P.S. was not challenging the legality of the initial Form 1 or the constitutionality of gating generally: P.S., at para. 100.

[41] The greatest significance of the P.S. decision is that the Court of Appeal found that the scope of the Board’s review powers under the MHA were inadequate to protect the s. 7 liberty interest of those detained as long-term involuntary patients under the MHA, and that this infringement was not saved by s. 1 of the Charter. As a result, the Court of Appeal declared the words “or subsequent” in s. 20(4)(b)(iii) to be inconsistent with s. 7 of the Charter. In striking those two words, the duration of involuntary committals was limited to approximately six months until the legislature could respond; it now has by enacting legislation responsive to the issue of long-term involuntary committals. The court temporarily suspended the declaration of invalidity for a period of one year, as an immediate declaration of invalidity would pose a risk to public safety given the automatic release of individuals who have been found to pose a serious risk of harm to the public.

[42] The Court of Appeal in P.S. also made a declaration that P.S.’s s. 15(1) Charter right had been violated due to being denied access to adequate interpretation services during his detention. The court left it open to Ontario and Waypoint Centre for Mental Health Care to attempt to craft a remedy that would rectify this long standing and systemic inadequacy, in conjunction with the necessary service providers. Failing resolution, the parties were to return to the Superior Court of Justice for a determination of the appropriate remedy pursuant to a bifurcation order made earlier in that proceeding.

[43] As already noted, the legislature responded to the Constitution Act, 1982, s. 52(1) declaration in P.S. by enacting Bill 122, An Act to amend the Mental Health Act and the Heath Care Consent Act, 1996.[^7] The Bill received Royal assent on December 10, 2015. This Act, entitled the Mental Health Statute Law Amendment Act, 2015 came into force on December 21, 2015.

[44] What P.S. expressly did not decide, at paras. 97-98, 190-191, were the following issues:

1. Whether “gating” by resort to the provisions of the Mental Health Act violates s. 7 of the Charter.

2. Whether the Board had the jurisdiction to resort to s. 24(1) of the Charter in the event of a Charter breach.

[45] Accordingly, while P.S. answered the broader question of the constitutional validity of s. 20 of the MHA, it does not assist in determining the main issue on this appeal: whether the Board’s decision to renew the certificate was reasonable. P.S. also does not provide guidance for the appellant’s claim that he was initially detained under the Form 1 without the necessary criteria being met, and that he has been unlawfully detained because he does not have a mental disorder within the meaning of the MHA. P.S. also did not decide whether the individual treatment of the appellant constitutes a violation of his s. 7 rights. More broadly, as previously stated, P.S. does not answer whether the involuntary detention of a former penitentiary inmate is an infringement of s. 7 when such individual is “gated”. Lastly, P.S. does not assist with the resolution of alleged infringements in the appellant’s case of ss. 9, 11(h) and 12 of the Charter, and if such violations occurred, whether the Board has jurisdiction to grant remedies under s. 24(1) of the Charter.

[46] The appellant served a Notice of Constitutional Question on April 15, 2015, in which he challenged the validity of only s. 20(1) of the MHA. I do not intend to deal with the question of the constitutionality of that section, given that the issue was definitively decided in P.S. for long-term detainees such as the appellant. Accordingly, in this decision I will deal only with the manner in which the MHA has been applied to the appellant throughout his detention.

Facts Leading to the Execution of the Initial Form 1

[47] On September 3, 1999 Mr. Nelson completed an aggregate penitentiary sentence of 14 years for convictions including robbery, armed robbery, two counts of sexual assault, and an act of gross indecency. On that date he was placed on a Form 1 by Dr. Oliver of the Kingston Penitentiary, which resulted in his initial admission to the Mental Health Centre Penetanguishene (Oak Ridge Division)—now Waypoint—for the period September 3, 1999 to March 17, 2000. On the date of his release from Oak Ridge he was discharged to police custody and charged with sexual assault, assault, choking, forcible confinement, and extortion against his former female partner. He was therefore assessed at Oak Ridge and detained pursuant to the civil committal procedures under the MHA. After a jury trial he was convicted of assault and given the maximum sentence of five years, with credit for pretrial custody. The reasons of the sentencing judge included the following comments:

In the case before me, there was a series of assaults over a period of nine months, in a domestic context. There were two serious incidents, one involving the beating of Ms. Williams in a van and another pushing her into a wall, breaking gyproc. There were threats. There were slaps, other abuses.

The evidence filed by the Crown from Doctors Oliver, Dickey, Loza, Fleming and others; assessments made by prison officials; the report from Warden Bourke found at tab 14, they all indicate and satisfy me that Mr. Nelson is at a very high risk to reoffend involving crimes of violence; that he has virtually led a life of crime and he is not amenable to rehabilitation.

In consideration of the extensive criminal record of Mr. Nelson, combined with the evidence that he is at high risk to reoffend and not amenable to rehabilitation, I find that he is the worst offender in the context of the factual situation before me. I therefore find that this is the worst case of common assault committed by the worst offender.

[48] Mr. Nelson appealed the sentence; the Crown appealed the acquittals on the other charges on the basis of the trial judge’s ruling regarding the admissibility of similar fact evidence. Neither was successful. In confirming the sentence imposed, Morden J.A. of the Court of Appeal described Mr. Nelson’s offence as a “most serious simple assault” and that Mr. Nelson qualified as “a worst offender”: R. v. Nelson, [2003] O.J. No. 163, at para. 1 (C.A.). The Crown brought no dangerous offender application; the charge of assault did not constitute a predicate offence for a dangerous offender application.

[49] Mr. Nelson returned to the Kingston Penitentiary to complete the five year sentence. On March 5, 2005, at warrant expiry following the end of Mr. Nelson’s sentence as confirmed by Court of Appeal, he was placed on a Form 1 application for psychiatric assessment under the MHA by the psychiatrist Dr. Hillen of the RTC. This resulted in his second transfer to Oak Ridge. Mr. Nelson has remained in hospital, civilly detained, since then pursuant to the certificates of involuntary admission and renewals thereof.

[50] Mr. Nelson now raises several issues with respect to the completion of the Form 1 on March 5, 2005. First, he raises the constitutionality of the completion of a Form 1 on warrant expiry of a sentence of imprisonment, referred to as “psychiatric gating”. Second, he argues that the initial Form 1 was faulty and improper and therefore does not support the chain of certification that followed from it.

Prior Habeus Application

[51] On February 3, 2012 Mr. Nelson appeared before Quinlan J. of this court seeking a writ of habeus corpus with certiorari in aid asserting that he was being arbitrarily detained, and that his rights under the Charter had been violated because he had been subjected to psychiatric gating and “double jeopardy” for his past crimes: Nelson v. Ontario, 2012 ONSC 1021, [2012] O.J. No. 765, at para. 11.

[52] Quinlan J.’s decision references the same set of factual circumstances now relied on in the within appeal; starting with the Form 1 execution by Dr. Hillen in March 2005, the completion of the Form 3 by Dr. Fleming on March 11, 2005, and the fact that he has remained an involuntary patient at Waypoint since 2005. She dismissed the habeus corpus application and concluded that Mr. Nelson’s ongoing civil committal neither offend his Charter rights nor place him in double jeopardy. Quinlan J. ruled that if the appellant had been deprived of his liberty, it was a lawful detention under the MHA and that if the appellant continued to take issue with his detention, his remedy was by way of an appeal of the Board’s decision to the Superior Court of Justice, as he has now done.

[53] Quinlan J. also held that the applicant had not sufficiently distinguished his case under ss. 7 and 12 of the Charter from Starnaman v. Penetanguishene Mental Health Centre, 1994 CarswellOnt 3780 (Gen. Div.), aff’d 1995 1518 (ON CA), 24 O.R. (3d) 701. At para 17, Quinlan J. stated:

The constitutionality of civil committal following a criminal sentence has been upheld by the Ontario Court of Appeal. Starnaman is a complete answer to the complaints of the applicant of psychiatric gating and double jeopardy. The application should be dismissed.

[54] This dismissal of the habeus corpus application was never appealed by Mr. Nelson.

[55] The respondents argue the issue of the impact of an allegedly defective Form 1 on the appellant’s current committal is res judicata due to issue estoppel, based on the decision of Quinlan J. Alternatively, it is argued that the equitable doctrine of laches prevents the appellant from now raising such a claim. Further, the respondents argue that Starnaman has settled the issues raised by the appellant in relation to psychiatric gating and that this court is bound by the doctrine of stare decisis. Accordingly, if this court confirms the Board’s decision, the respondents assert that none of the appellant’s Charter claims should be entertained.

Previous Board Decisions

[56] The record supports that Mr. Nelson’s civil committal has been reviewed by the Board on a number of occasions. Additionally, pursuant to the MHA he would have had mandatory non-waivable Board reviews annually since late 2005, even if he did not apply for reviews himself.

Board’s Decision of March 15, 2013 and Reasons

[57] On March 14, 2013 the Board conducted the mandatory hearing at Waypoint. The next day the three-person panel of the Board rendered it unanimous decision confirming Mr. Nelson’s involuntary status. The Board’s Reasons for Decision were released on March 18, 2013.

[58] In their unanimous Reasons for Decision the Board stated:

(a) that onus of proof at a Board hearing is on the attending physician and the standard of proof is on a balance of probabilities;

(b) that the Board must be satisfied on the basis of cogent and compelling evidence that the physician’s onus has been discharged and that there is no onus on the patient;

(c) that hearsay evidence may be accepted and considered but it must be carefully weighed;

(d) the s. 20(5) test under the Mental Health Act for what is commonly referred to as the “Box A” criteria for involuntary detention, in the correct manner;

(e) that the Board must be satisfied that the conditions for involuntary status continue to be met at the time of the hearing. The Board also correctly recognized that if this onus is discharged the Board may make an order confirming the patient’s involuntary status, but if the onus is not discharged the Board is required by law to rescind the certificate;

(f) that there must be causal connection between the existence of mental disorder and the likelihood of the feared consequence; and

(g) that “likely” in the context of civil committal has been found to mean “probably” and that “serious” bodily harm has been interpreted to mean harm that is more than trifling.

[59] I find that the Board correctly stated both the onus and the applicable law in its reasons. The appellant does not take issue with those aspects of the Board’s decision.

[60] However, the appellant does contest the Board’s findings that, on the evidence before it, he was suffering from mental disorder at the time of the hearing. The appellant also contests the Board’s finding on the evidence before it that such mental disorder is of a nature or quality that would likely result in serious bodily harm to someone else unless he remains in hospital. As a result of his position on these above two issues, the appellant does not challenge the Board’s conclusion that he was not suitable for voluntary admission to the hospital given that he does not accept that the statutory criteria were met on March 14, 2013.

[61] The Board found that at the time of the hearing, Mr. Nelson was suffering from a mental disorder, defined in s. 1 of the MHA as “any disease or disability of the mind”. In its reasons the panel stated that it found ample evidence provided by Dr. Livermore that as of the hearing date Mr. Nelson still exhibited symptoms associated with two types of mental disorder, being paraphilia and antisocial personality disorder. The evidence included past diagnoses of paraphilia involving sexual sadism and pedophilia, and antisocial personality disorder with psychopathy. The Board’s reasons also set out their findings for why Mr. Nelson’s mental disorder is of a nature and quality that likely would result in serious bodily harm to someone unless he remains in hospital. The Board commented on the fact that the appellant wished to be discharged to the community without supervision or treatment designed to reduce his sex drive or successful completion of other therapy programs, and that he has always maintained that in the past he has done nothing wrong. The Board reviewed in its reasons some of the conditions surrounding his past convictions, including a conviction for assaulting a former girlfriend’s young daughter on at least ten occasions. The reasons of the Board also review inappropriate conduct of the appellant while hospitalized from 1999to 2012. The Board’s reasons also referenced an admission to Brockville for consideration of a program that the appellant wanted to be transferred to. In the Consent and Capacity Board summary,[^8] Dr. Livermore referred to this as a recent assessment completed at the Brockville Mental Health Centre, where the diagnoses of Mr. Nelson’s mental disorders were supported by both Drs. Bradford and Ahmed. The record, however is not clear as to when that assessment occurred, although based on a reference to it in a progress note dated October 23, 2012, the assessment at Brockville occurred prior to that date. The behaviours in question that were referenced by the Board involved his interactions with female patients. In the CCB summary, Dr. Livermore wrote:

These behaviours suggest that Mr. Nelson is so overwhelmed by his personality disorder and/or paraphilias that he cannot control himself even for a short period of time in an environment that may have allowed him to move one step closer to eventual community placement.

[62] In its reasons the Board also referenced clinical testing of the appellant. They noted that he has a score of 37 out of a possible 40 on the psychopathy checklist revised (PCL-R). This tool predicts recidivism, poor community treatment, and poor response to treatment. Phallometric testing performed on the appellant indicates sexual deviance with a sexual preference for non-sexual violence and violent sexual activities. Further actuarial testing done at Brockville designed to predict sexual and violent recidivism placed him in the moderate/high category. The Board noted in its decision that this tool suggests the appellant’s rate of recidivism to be 2.5 times higher than the average sexual offender. The Board also relied on Mr. Nelson’s refusal to take any sex-drive reducing medication, and Dr. Livermore’s opinion that his paraphilia is complicated by his antisocial personality disorder which makes him distort reality, impedes his appreciation that his past acts were wrong or his fault, prevents insight into how his actions and behaviours affect others, and impairs his ability to feel emotion or empathy for his victims. The Board’s reasons conclude:

Until R.N. accepts and receives not only sex reduction medication, but is receptive and successful at other therapies such as Dialectical Behavioural Therapy, anger management and substance abuse, and a safe way of supervising him in the presence of women, particularly young and vulnerable females, others are at risk of harm from R.N. The risk continues to be serious, as it has been in the past and it is likely to happen within a short period of time should he be in the community untreated and unsupervised at this time.

Issues to be Decided on this Appeal

1. Did the Board err in determining that the criteria under s. 20(5) of Mental Health Act were met on March 14, 2013?

2. If the Board did not err, is the appellant’s ongoing detention illegal either because:

i. The initial Form 1 executed in March 2005 did not meet the legislative requirements under s. 15 of the Mental Health Act; or

ii. The process to which the appellant was subjected, known as “psychiatric gating”, violates the Charter.

3. Does the appellant’s ongoing detention breach his rights under ss. 7, 9, 11(h) and 12 of the Charter?

4. If the appellant’s Charter rights were breached, what is the appropriate remedy?

Did the Board err in Determining that the Criteria under s. 20(5) of the Mental Health Act were met?

[63] The first ground of appeal in the Notice of Appeal is as follows:

That the Board erred in not considering evidence that the appellant was transferred to the Mental Health Centre Penetanguishene as it then was (now renamed Waypoint MHC) from Corrections over eight (8) years ago, in the absence of any precipitating factors; in the absence of any psychotic illness; and in the absence of any meaningful psychiatric examinations; in order to extend his penitentiary sentence contrary to the rules of natural justice and the Canadian Charter of Rights and Freedoms.

[64] The appellant’s assertions in this regard will be dealt with later in this judgment in relation to the topic of psychiatric gating. However, in terms of whether the Board erred in not considering the evidence surrounding the appellant’s initial involuntary admission to Waypoint, this ground of appeal has no merit for the following reasons:

i. The validity of the Form 1 was not argued before the Board. Further there is no provision in the MHA that gives the Board the power to review the lawfulness of a Form 1. On the hearing of an application such as occurred on March 14, 2013, the Board’s mandate is outlined in s. 41 of the MHA, requiring the Board to review the patient’s status to determine whether or not the prerequisites set out in the Act for admission as an involuntary patient were met at the time of the hearing of the application, and to confirm or rescind the certificate accordingly;

ii. The constitutionality of those sections of the MHA that permit such transfer and admission cannot be considered by the Board due to s. 70.1(1) of the HCCA, which prohibits the Board from inquiring into or making a decision concerning the constitutional validity of a provision of an act or regulation;

iii. At the hearing the appellant’s lawyer specifically stated that he was not intending to argue any Charter issues before the Board, and therefore the Board was not asked to consider whether any of the appellant’s Charter rights have been infringed by his initial and ongoing detention since March 2005.

[65] The appellant asserts that the Board erred in two other ways:

1. The Board failed to determine as a matter of law whether the appellant has a mental disorder within the meaning of the MHA;

2. The Board disproportionately relied on uncorroborated, historical hearsay information of the appellant’s behaviour rather than on evidence of contemporaneous behaviour.

[66] These allegations will now be examined in turn.

1. Determination of a mental disorder

[67] The appellant raises two objections to the Board’s finding that he suffered from a mental disorder. The first is that the Board is not able to answer questions of law, and he asserts that a determination of whether a patient suffers from a mental disorder is a question of law. Second, the appellant states that the Board accepted the diagnosis of paraphilia and a personality disorder without examining whether such “trait-based pathology” were mental disorders within the meaning of the MHA.

[68] The appellant states that Ontario (Attorney General) v. Patient, 2005 3982 (ON SCDC), 250 D.L.R. (4th) 697, at paras. 35, 44, determines that the Board cannot consider questions of law, but rather engages in a fact-intensive inquiry restricted to whether a set of statutory conditions are met. Accordingly, the appellant argues that the inability of the Board to answer legal questions undermines his s. 7 Charter right to have a substantive assessment of whether he was detained in accordance with law. I disagree that the case stands for such a proposition. The Divisional Court in A.G. v. Patient held that s. 33.1 of the MHA, which constitutes part of the community treatment order regime, requires the Board to engage in fact intensive inquiries which are properly characterized as questions of mixed fact and law, requiring the Board to apply factual findings to a legal standard as required by the Act: at paras. 28, 31. By virtue of s. 33.1(3), the Board is required to determine whether the person fits within the purposes of the Act, including whether that individual is “a person who suffers from the serious mental disorder”. This, the Divisional Court held, involved a question of mixed fact and law. In the same manner, the Board’s function on the hearing of the application triggered by s. 39(4) of the Act and required by s. 41(1) is to “review the patient’s status to determine whether or not the prerequisites set out in this Act for admission as an involuntary patient continue to be met at the time of the hearing of the application.”

[69] I agree with the respondent that this does not involve merely a question of law but, as in A.G. v. Patient, requires the tribunal to engage in a fact intensive inquiry to apply factual conclusions to a legal standard prescribed by the statute. There is nothing in the MHA that limits the amount or kind of information that the Board can consider; therefore, a holistic examination of the patient’s circumstances can be made at the time of the hearing. Although the Board has prepared a CCB Summary template to assist the attending physician to organize information for the hearing, as utilized in Mr. Nelson’s case for the hearing on March 14, 2013, the Board is not limited to only consider the information contained in the Summary, nor did it in Mr. Nelson’s case. That being so, the statute does not prevent the appellant from receiving a full and substantive assessment of the criteria that gives rise to his detention.

[70] Similar to the Board’s inquiry under s. 33.1(3) that was engaged in in A.G. v. Patient, the Board was required to determine whether the appellant suffered from a mental disorder. Accordingly, the Board’s jurisdiction at the hearing included an assessment of whether the legal concept of mental disorder, as defined by the MHA, was satisfied on the facts. As a specialized tribunal comprised of one psychiatrist, one lawyer, and one person who is neither a psychiatrist nor a lawyer, as required by s. 39(14)(1), the Board is uniquely positioned to hear and assess the evidence by applying is expertise. As earlier noted in the discussion of the standard of review, the Supreme Court has noted and commented upon the specialized expertise that can be acquired by tribunals routinely interpreting their governing legislation: Starson, at para. 11, 86; and Dunsmuir, at para. 49.

[71] In summary, there are no limitations created by the legislation that curtail the appellant’s right to have a full assessment and hearing with respect to whether he was suffering from a mental illness at the time of the hearing. Should the Board come to a decision that a person suffers from a mental disorder, as they did in the appellant’s case, such a decision is therefore not necessarily unreasonable, arbitrary, or beyond the scope of the Board’s mandate.

[72] The second aspect of the appellant’s objection with respect to the Board’s finding that he suffered from a mental disorder is that the Board failed to determine that the appellant’s condition constitutes a mental disorder.

[73] Section 1(1) of the MHA defines “mental disorder” as any disease or disability of the mind. The appellant’s position is that the Board accepted his diagnosis without examining whether the conditions assigned to him were mental disorders within the meaning of the MHA. He further argues that the Board erred in finding that the evidence supported such diagnoses.

[74] In Cooper v. R., 1979 63 (SCC), [1980] 1 S.C.R. 1149, at p. 1159, the Supreme Court of Canada held that a disease of the mind embraces any illness, disorder, or abnormal condition that impairs the mind and its functioning, but excludes self-induced states and transitory mental illness. Given the very broad scope of this definition of mental illness, I find that the Board did not err in concluding, inferentially, that those conditions attributed to the appellant—paraphilias and anti-social personality disorder with a high degree of psychopathy—are diseases of the mind and therefore mental disorders within the broad definition provided in the MHA. Similar conditions were suffered by the patient in Starnaman, whose civil committal under the MHA, based on the diagnoses of paraphilia and anti-social personality disorder, was confirmed by a unanimous panel of the Court of Appeal. There is no basis in law, as argued by the appellant, to equate the definition of mental disorder under the MHA to the criminal law analysis of mental disorder, which relates to offence-specific issues such as fitness to stand trial and criminal responsibility.

[75] Whether the evidence supported these diagnoses is another question. In its Reasons for Decision, the Board referenced the following evidence that it found supported its findings that Dr. Livermore had proven that the appellant suffered from a mental disorder at the time of the hearing:

1. Since at the facility, R.N. had been given the psychiatric diagnoses of anti-social personality disorder with psychopathy and paraphilia, sexual sadism and pedophilia.

2. Dr. Livermore was of the opinion that the patient continued to suffer from those two mental disorders.

3. Numerous psychiatrists who had cared for the appellant at Waypoint have provided the same opinion.

4. Dr. Oliver and Dr. Hillen of Corrections Canada had made similar diagnoses in the past.

5. A recent attempt to have him transferred to programs at other facilities which specifically deal with persons with such diagnoses resulted in him being assessed by three psychiatrists, who assessed him and confirmed the diagnosis of paraphilia and anti-social personality disorder. His past behavior, including convictions for sexual assault involving young children, a cell mate and women, and his phallometric testing, indicates sexual deviance with a sexual preference for sexual coercion and non-sexual violence. Both of the above factors were strongly suggestive of the existence of symptoms of mental disorder.

6. At Waypoint he has continued to be inappropriate with female staff to the point they are frightened of him, although he sees all his actions as appropriate.

7. There is no evidence presented that the symptoms of his disorder have been eradicated or significantly diminished.

8. He scored 37 out a possible 40 in the psychopathy checklist – revised. The cutoff for such a diagnosis is 28 to 30.

9. His past actions are consistent with such a disorder.

10. His history of convictions, psychological testing and his attitude at Waypoint including the fact that he maintains there is and was nothing wrong with him.

11. He exhibits a distortion of the facts as they relate to any events and has no insight into the fact that some of his behaviors, statements and actions are wrong or not acceptable to others.

[76] In conclusion, the Board’s reasons state that “the panel found ample evidence provided by Dr. Livermore, that as of the hearing date, R.N. still exhibited symptoms associated with two types of mental disorder being paraphilia and anti-social personality disorder”.

[77] In addition to the evidence noted in its reasons, this CCB Summary completed by Dr. Livermore states as follows:

Mr. Nelson has now been assessed by three psychiatrists from Brockville (Drs. Bradford, Fedoroff and Ahmed) and their unanimous opinion is that he is not a good candidate for transfer to their facility. Dr. Bradford described him as “a high risk to re-offend” and not a good candidate for the programs offered at their facility. Dr. Ahmed stated “at this stage Mr. Nelson’s risk, in our opinion, is not manageable in an environment such as the forensic treatment unit of Brockville Mental Health Centre with vulnerable patients”. Dr. Fedoroff, the Director of the Sexual Behaviours Clinic in Ottawa, did not feel that Mr. Nelson was ready for the treatment offered at his out-patient clinic and wrote, “While the SBC (Sexual Behaviour Clinic) does not require offenders to admit guilt for past offences, it does require that patients accept the fact that they must alter their behaviours in order to avoid being re-arrested. Mr. Nelson impressed as a man who feels he has been mistreated and/or misunderstood by the system”. This assessment would be equally accurate today.

[78] I find, therefore, that it was reasonable for the Board to conclude that the appellant, at the time of the hearing, continued to suffer from these diagnoses, each of which constitutes a mental disorder within the meaning of the MHA. The diagnoses have repeatedly been confirmed over time, they have gone untreated, and they are diagnoses reached by professionals who have had an opportunity to spend time observing and assessing the appellant. In the same way, Dr. Livermore, who had been the appellant's treating psychiatrist for six months prior to the hearing date, had been able to undertake clinical reviews of Mr. Nelson and his mental health status, as evidenced by the progress notes marked as Exhibit 3 at the hearing.

2. Disproportionate reliance on uncorroborated, historical hearsay information rather than evidence of contemporaneous behaviour

[79] The appellant submits that the Board erred in relying on evidence that does not support his continued detention under the MHA. In particular, the Board heavily relied on historical behaviour, for which his criminal sentences have been fully served. Since the applicant is unable to change his historical behaviour, such facts cannot be relied upon to keep him detained indefinitely. Further, it was submitted that the Board erred in relying on uncorroborated hearsay in order to justify their findings both that the appellant suffered from a mental disorder and that his release would likely result in serious bodily harm to another person due to his mental disorder. There was no evidence at the time of renewal, the appellant argues, that he posed a present risk of danger to others.

[80] The facts and evidence relied on by Dr. Livermore at the hearing are set out in the factum filed by Dr. Livermore’s counsel, at paras. 10-37. I find, without repeating the lengthy evidence set out in those paragraphs, that they accurately reflect the evidence that was before the Board, and on which the Board relied for its determination. Further, the Board’s reasons make clear that its members were alive to their duty to carefully weigh hearsay and that they did not place undue emphasis on such evidence.

[81] I find that the conclusion reached by the Board that the appellant’s release would likely result in serious bodily harm to another person was reasonable on the evidence before it. While the appellant’s counsel makes a compelling argument that even a criminal history as serious as the appellant’s cannot be used as justification for ongoing detention, the case of the appellant involves far more than his criminal antecedents. The Board acted reasonably, in my view, in taking into account the following factors in reaching its conclusion that the appellant was not a candidate for release:

(i) The appellant has always maintained that he did nothing wrong in the past and will do nothing wrong if released.

[82] This evidence, in my view, is sufficient to warrant ongoing detention in the face of the appellant’s convictions, the appellant’s broad victim pool, the nature of his paraphilia, the nature of his personality disorder, and the chances of recidivism borne out by his test scores. As I suggested to his counsel during argument, there may in fact be individuals for whom long-term detention is the only answer to protection of the public, and the appellant may in fact prove to be one of those individuals. However, the additional factors supporting the reasonableness of the Board’s decision include:

i) The appellant’s score, in 2010, on testing designed to predict sexual and violent recidivism rated him as being 2.5 times higher than the average sexual offender;

ii) The appellant’s phallometric testing indicated sexual deviance with a sexual preference for non-sexual violence over consenting adult heterosexual activity, a sexual preference for violent sexual activities against male and female children, and a preference for coercive sexual activities against male children over consent adult homosexual activities;

iii) The appellant’s refusal to take Lupron or any sex reduction medication. While his counsel suggested that the appellant’s decision to discontinue such medication in the face of failing to see any progress toward release was understandable, the Board understood that such refusal is in part based on the appellant’s denial of its necessity;

iv) The appellant’s refusal to accept behavioural therapies offered to him throughout the period of time that he has been at Waypoint;

v) The appellant’s untreated anti-social personality which complicates his inability to control himself and learn coping skills to prevent future harm to others;

vi) The appellant’s personality disorder leads him to distort reality, place blame on others, and makes him unable to appreciate the nature or impact of his past wrongs.

[83] Furthermore, the appellant alleged that the Board erred in the weight it gave to two letters tendered by the appellant from the Circle of Support. The Circle of Support is a Federal Corrections sponsored re-integration program offering programming and support staff, and has experience in dealing with persons discharged from federal prisons. On the face of this evidence, there was no error on the part of the Board, as alleged by the appellant. The letters indicated that the Circle the Support would be willing to accept Mr. Nelson into their program and supervise him were he to be released into the community. One letter was dated October 3, 2006, and the other November 30, 2011.[^9] The appellant’s counsel at the hearing, Mr. Mudry, made no submissions in respect of those letters other than to indicate that they were being filed primarily for the purpose of Charter arguments anticipated to be made at an appeal. Further, given the fact that they were stale-dated and no evidence was presented by the author of the letters, the Board made no error in essentially ignoring their contents.

Conclusion on the Board’s Confirmation of the Civil Committal

[84] The appeal under s. 80 of the HCCA is dismissed, as the Board committed no error of law, nor made an unreasonable decision, in respect of the involuntary committal of the applicant. The Board’s Reasons for Decision provide a cogent and thorough assessment of the evidence relevant to the issues that it was tasked to decide, and provide no basis for interference from this court.

[85] It follows from this that the Board made no error in process that would violate the appellant’s s. 7 Charter rights at the time of the hearing, as submitted by the appellant.

Is the Applicant’s Ongoing Detention Illegal because the Initial Form 1 Executed in March 2005 Did Not Meet the Requirements of s. 15 of the Mental Health Act?

[86] I now turn to a consideration of the appellant’s further allegation that the entirety of his involuntary committal is illegal due to a faulty and improper Form 1.

[87] The defect identified by the appellant is that the use of a Form 1 arose only when the appellant’s warrant was expiring, and not for a mental health purpose, and that the requisite examination required by s. 15 of the MHA did not take place.

[88] The respondents argue that the appellant is estopped from raising this issue on this appeal by virtue of res judicata, including the two branches of issue estoppel and action estoppel, or the doctrine of laches. These arguments must be examined first to determine whether the appellant is precluded from having the court consider the alleged defectiveness or illegality of the Form 1.

[89] The respondents first argue that action estoppel prevents the appellant from arguing that there was a defect in the Form 1 process completed at the RTC in 2005, as there have been numerous superseding Form 4 certificates of renewal confirmed by the Board subsequently. On these reviews the Board has considered whether or not the prerequisites for admission as an involuntary patient continue to be met at the time of the hearing of the application. In these circumstances, where a patient alleges a defect in a Form 1 and that patient’s involuntarily detention has been reviewed and confirmed, the respondents argue that it is no longer open to the patient to challenge the Form 1 in subsequent Board review hearings or on an appeal from a Board decisions to this court. The respondents rely on Chandrasena v. McDougald, 1989 CarswellOnt 3959 (Dist. Ct.), at paras. 21-31, in which it was held on appeal that the Board erred by considering matters relating to the patient’s initial certification and first renewal thereof. The doctrine of action estoppel prevented the Board from undertaking such an inquiry because res judicata applies to prevent a party from opening the same subject of litigation, which was not brought forward at an earlier time through negligence, inadvertence, or even mistake, but which properly belonged to the subject of litigation and, had reasonable diligence been exercised, could have been brought forward at the initial time. Action estoppel prevented the patient in Chandrasena from raising issues pertaining to prior processes previously confirmed by review boards and no special circumstances existed to exempt the application of the doctrine.

[90] The appellant, on the other hand, argues that this court should be guided by Dayday v. MacEwan, 1987 4325 (ON SC), 62 O.R. (2d) 588 (Dist. Ct.). His counsel argued this case stands for the proposition that a flaw in the underlying Form 1 renders the subsequent renewals defective and illegal. In particular, the appellant relies on the comments of Matlow J., at p. 601:

In my view, this failure to follow the statutory procedure is a fatal defect. The applicant’s initial certification simply did not comply with the procedure set out in the statute and was done without authority. It follows, therefore, that the subsequent renewals of the applicant’s certification were also without authority for the same reason and cannot be allowed to stand.

[91] Dayday assists the appellant to the extent that its ratio is clear; a failure to comply with the legislative requirements will require an initial Form 1 certificate to be rescinded, despite subsequent renewals of the certificate. The rescission of the certificate in Dayday rested on a failure to follow the statute in two ways. The first being the participation of a Board member on two subsequent panels contrary to the legislation. The second being the fact that the initial order for Mrs. Dayday’s examination was made by a justice of the peace under s. 10 of the Mental Health Act, R.S.O. 1980, c. 262 (now s. 16 of the MHA), whereas the section permitting Form 1 certification, s. 14 (now s. 20), required the person in question to be either the subject of an application under s. 9 (now s. 15), or the subject of an order under s. 26 (now s. 32). Because at the time of her initial examination Mrs. Dayday was not captured by either of those sections of the former Mental Health Act, her initial certification did not comply with the statute. I disagree with the respondents’ position that Matlow J.’s comments are obiter in this regard, as he explicitly noted that both issues were factors in his disposition of the appeal. However, neither of the two bases for the rescission of the certificate in Dayday are analogous to the situation in the appellant’s case.

[92] As I interpret them, the ratios of Dayday and Chandrasena are in direct conflict. Chandrasena prohibits a challenge to the Form 1 certificate process in the face of a subsequent renewal or renewals, unless special circumstances exist. Whereas, Dayday specifically permits such a course of action. The court in Chandrasena considered the comments of Matlow J. in Dayday but only those regarding his discussion of hearsay. Dayday, on the other hand, is silent on the issue of res judicata. As I am unable to reconcile these authorities I believe the proper course is to ensure that the appellant’s arguments are given the most complete consideration given both the procedural history of this appeal and the length of time that he has been institutionalized.

[93] With respect to the initial certification process, the appellant asserts that he was not provided with a proper examination by Dr. Hillen for the purposes of executing the Form 1. Instead, in the face of the appellant’s refusal to meet with him, Dr. Hillen made the decision to sign the Form 1 only on the basis of his review of the appellant’s historic records; the quality of Dr. Hillen’s examination of the appellant did not comply with the statute. According to the appellant, on the basis of Dayday the current committal must be rescinded.

[94] The applicable portion of the wording in s. 15(1) of the MHA is “where a physician examines a person”. This provision was considered in Dr. X v. Everson, 2013 ONSC 6134, 4 C.C.L.T. (4th) 205, where the court concluded that there are safeguards built into the MHA to prevent misuse of the power of apprehension and detention because the restraint on a person’s liberty is no less intrusive in the context of involuntary detention of a person who appears to be suffering from mental illness, than arrest and detention in a criminal context. At para. 95, the court stated:

One of the safeguards is the requirement for there to be a personal examination. This means that a doctor cannot proceed with an application based only on third-party evidence. There needs to be direct contact between the doctor and the patient in order for the doctor to come to a proper conclusion or, using the words of Form 1, to make a careful inquiry into all the facts necessary to form an opinion about the nature and quality of the person’s mental disorder.

[95] Binding on this court is the decision of Mullins v. Levy, 2009 BCCA 6, 88 B.C.L.R. (4th) 306, where the British Columbia Court of Appeal considered s. 22 of their provincial Mental Health Act, R.S.B.C. 1996, c. 288, which also requires an examination of the patient preceding involuntary committal. At para. 106, Kilpatrick J. A. stated as follows:

Having regard to the views of the physicians, the purpose of the Act, and the interpretation of the word in its ordinary usage in the medical context, in my opinion the term “examination” must be given a broad interpretation so as to be applicable in the myriad of circumstances that confront physicians called upon to make the serious decision to involuntarily commit persons to a psychiatric facility. “Examination”, in this context, must mean observing the person, reviewing the patient’s chart (if there is one), reviewing the available history and collateral information, and where possible (in the sense that the person complies) and necessary (in the sense that the information to be gained is not available from other sources) conducting a personal interview with the person to be admitted.

[96] I would note that the term “examination” is not defined in the MHA, nor does s. 15 of the MHA mandate that the physician undertake a direct, one-on-one examination.

[97] The only known facts surrounding the examination of the appellant are found in Dr. Hillen’s Institutional Consult Letter of February 24, 2005. That letter notes that on February 24, 2005, the appellant refused to speak with Dr. Hillen after he introduced himself as a psychiatrist from RTC. Dr. Hillen offered to meet with him the following week and was met again with outright refusal. The letter outlines that Dr. Hillen conducted a file review and spoke with the appellant’s parole officer during his tenure in the Sex Offender Treatment Program at RTC. Dr. Hillen’s ultimate conclusion was that the appellant met the criteria for completing an Application for Psychiatric Assessment under the MHA due to:

• persistent and untreated mental disorder, Paraphilia, complicated by intermittent (possibly continuous but covert) psychotic symptoms, untreated severe Personality Disorder, and persistent attraction to the use of intoxicants; and

• persistent risk to the safety of others.

[98] In my view it is not open to the appellant to challenge the conclusions that form the basis of the Form 1 in this proceeding. Dr. Hillen was not a party to this appeal nor was the RTC or the Crown. The appellant’s health care file, RTC file, and case management file were not before this court. The correctness of Dr. Hillen’s conclusion cannot be evaluated in the absence of this evidence. That being the case, this court is strictly evaluating whether the examination performed by Dr. Hillen met the minimum requirements set out in Mullins and Everson such that the appellant’s s. 7 Charter rights were not violated.

[99] On the evidence available, Dr. Hillen performed most of the requirements identified in Mullins in that he reviewed the appellant’s chart, history, and collateral information from an individual who had direct contact with the appellant. It was not possible to interview him due to his lack of cooperation. It was not necessary to do so, given that information about his psychiatric health was available elsewhere. Further given the nature of the appellant’s Axis I and Axis II disorders as described by Dr. Hillen in the Institutional Consult Letter, one must question whether it would have been possible to obtain accurate and reliable information directly from the appellant. Finally, in terms of directly observing the appellant, this is a case where the patient’s circumstances must dictate the extent to which such personal observation is necessary. The contextual approach referenced in Mullins and Everson is needed. Specifically, one must question how likely it is that the appellant would have been likely to engage in the predatory, opportunistic, forceful, persistent, and fear-provoking type of coercive behavior that characterized his sex-offending behavior, in Dr. Hillen’s presence.

[100] In the circumstances of this case, I find that the examination of the appellant by Dr. Hillen, on the record before this court, met at least the minimal standard of thoroughness required by the governing case law. Accordingly there was no breach of s. 15 of the MHA and the initial detention did not offend the appellant’s s. 7 Charter rights on this basis.

Is the appellant's detention illegal because the "psychological gating" to which he was subjected is in violation of his Charter rights?

[101] The appellant next argues that the initial detention was illegal because the examination by Dr. Hillen was precipitated by the appellant’s approaching warrant expiry on March 10, 2005. The appellant argues that his detention is contrary to the Charter and natural justice because there was no precipitating behavior that led to the involvement of Dr. Hillen other than the warrant expiring. Further, there were no precipitating factors to trigger the need for a legal process under the MHA other than the appellant’s historic offences.

[102] The respondents argue that issue estoppel prevents the appellant from now attempting to attack the Form 1 process, for the reason that the legality of his detention, based on the same Form 1, was confirmed by this court in 2012 in the appellant’s unsuccessful application for habeas corpus and Charter relief. In the alternative, they argue that the doctrine of laches should bar this argument. Further, they argue that Starnaman is a complete answer to the appellant’s arguments that psychiatric gating offends his s. 7 Charter rights.

[103] Issue estoppel precludes the relitigation of issues previously decided in another court proceeding if three preconditions are met: (1) the issue is the same as the one decided in the prior decision; (2) the prior judicial decision was final; and (3) the parties to both proceedings are the same parties or their privies: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para 25, citing Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248, at p. 254. All of these preconditions appear to have been met in this case.

[104] First, the same allegations that the appellant raises on this appeal were considered in the 2012 habeas corpus application. As he has done in this appeal, the appellant argued that he has been subjected to psychiatric gating in contravention of his Charter rights, and that he had been further subjected to “double jeopardy” as a result of a previous conviction being used as the basis to continue to detain him. In the 2012 application, Quinlan J. fully considered those two arguments and decided against the appellant.

[105] Second, the decision of Quinlan J. was final and no appeal was sought.

[106] Third, the respondents are the same in this appeal, or their privies, as those in the 2012 application. While Waypoint was named in the 2012 application rather than Dr. Livermore, they are privies because they share an interest in, and are equally bound by, the outcome of the proceeding. If this appeal is successful, both Waypoint and Dr. Livermore will be equally bound by the ruling made.

[107] However, the appellant argues that there are issues raised in this appeal that were not before the court in the 2012 application, which prevents the use of res judicata. The first is that a possible infringement of the appellant’s ss. 9 and 11(h) Charter rights was never canvassed in relation to the issue of his civil committal following time served for his last conviction. Further, the issue of collateral estoppel was not argued before Quinlan J., nor was his argument that he is entitled to the least onerous, least restrictive options for his detention.

[108] This position again engages the question of action estoppel considered in Chandrasena, and the principles as pronounced by the English Court of Chancery in Henderson v. Henderson (1843), 3 Hare 100, at p. 115:

[W]here a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, in which the parties, exercising reasonable diligence, might have brought forward at the time.

[109] As noted by Charron J., at para. 29 of Chandrasena, the jurisprudence does not clearly define what circumstances should be considered to be of a nature that would defeat the application of action estoppel. In my view, the circumstances of a psychiatric patient who was not represented by counsel on a previous application before the Superior Court of Justice would amount to the type of special circumstances necessary to justify the consideration of issues that could have been raised in an earlier application. With this most vulnerable population, the same standard of reasonable diligence as would apply to other litigants should be significantly relaxed, and the policy reasons surrounding finality in litigation should give way to the policy reasons that offer psychiatric detainees broad access to procedural fairness.

[110] For the same reason, I would not give effect to the respondents’ argument that the appellant is barred by the doctrine of laches. The equitable doctrine of laches prevents a party from claiming a remedy where they have inappropriately and prejudicially “sat” on their rights. The doctrine is focused on justice between the parties. In K.M. v. H.M., 1992 31 (SCC), [1992] 3 S.C.R. 6, at pp. 77-78, it was explained that “the doctrine considers whether the delay of the plaintiff constitutes acquiescence or results in circumstances that make the prosecution of the action unreasonable.” The length of the delay before the remedy was sought and the nature of the acts in the interval are of importance to such a determination.

[111] When a Charter remedy is sought, the court may refuse relief on the basis of laches in the appropriate case: Penetanguishene Mental Health Center v. Stock, 1994 7506 (ON SC). 116 D.L.R. (4th) 550, at para. 9. The respondents submit that the doctrine should apply in this case because it has always been open to the appellant to commence an application in the Superior Court seeking a declaration pursuant to s. 24(1) of the Charter, or to seek judicial review of Dr. Hillen’s execution of the Form 1 in 2005. The appellant took none of these steps, nor did he appeal the decision of Quinlan J. in which the Form 1 was held to be compliant with the Charter.

[112] None of these processes are straight-forward and readily accessible to the patient. While the MHA provides for access to a rights advisor in the face of a Form 3 or a Form 4, there is no provision that requires advocacy assistance for the detained person other than for a Board hearing. A similar argument was raised in P.S., at para. 118, to which the Court responded, at para. 119:

If we were to accept this submission, the appellant, a person who suffers from a mental disorder and a serious disability and who is held in a maximum security institution, would have to initiate proceedings in two or more different tribunals. This solution is fatally flawed; it is legally inadequate and practically unworkable. It would be prohibitively costly, very slow, seriously inconvenient and almost certainly ineffective.

[113] Another reason that I will undertake an examination of the appellant’s arguments is that I do not agree that Starnaman has settled the question of whether psychiatric gating on the basis of historic offences offends s. 7 of the Charter. With respect to Quinlan J., and bearing in mind that she did not have the benefit of the ruling in P.S., I do not agree with her assessment, at para. 28, that the “Court of Appeal in Starnaman has found that the practice of ‘psychiatric gating’ does not offend section 7 or section 12 of the Charter.” Instead, as confirmed by the Court of Appeal in P.S., the court in Starnaman specifically refrained from deciding whether a Form 1 application can be made in circumstances where the conduct prior to incarceration provides the only basis for the application: P.S., at para. 97; and Starnaman, at p. 705-706.

[114] Further, Starnaman restricted its s. 7 analysis to the facts of that case only. As concluded by the court in P.S., Starnaman was not intended to conclusively determine that the involuntary committal provisions of the MHA met the constitutional standard prescribed by s. 7 of the Charter. The case explicitly left open the possibility that in other cases the necessary fairness standard mandated by s. 7 could be breached: P.S., at paras. 97-99; and Starnaman, at p. 705. Likewise, the abuse of process argument advanced in Starnaman failed for want of an evidentiary record to support the contention that the civil committal process was a “disguised attempt to prolong the appellant’s incarceration”: Starnaman, at p. 704. Accordingly, I conclude that the doctrine of stare decisis does not prevent this court from considering the further issues raised by the appellant.

[115] In his factum the appellant submits that his certification commenced upon the foundation of the Form 1 that came about as a result of an attempt to maintain custody over him when all other lawful means were about to expire and when there was no triggering event, and this essentially defeated all protections that the Criminal Code, R.S.C. 1984, c. C-46, would otherwise afford. He submits this was a breach of his ss. 7, 9, 11(h) and 12 Charter rights. This was further an abuse of process, violated the principle of collateral estoppel, and amounted to a failure on the part of the state to follow the law.

[116] Subsumed in this argument is the appellant’s contention that the lack of the Board’s jurisdiction to review a Form 1 and to review the question of whether his detention complies with Charter-protected values means that he has been deprived of a process that considers his substantive rights.

Illegality of the Initial Form 1

[117] As previously indicated, the evidence surrounding the execution of the Form 1 comes from Dr. Hillen’s 2005 Institutional Consult Letter. I have previously found that Dr. Hillen conducted an adequate examination as required by the MHA prior to signing the Form 1, and that the evidence set out in the letter supports the conclusion that the doctor had reasonable grounds within the meaning of s. 15 of the MHA.

[118] Beyond that, the appellant has offered no evidence to support his allegation that Dr. Hillen, or any other state actor, had an ulterior motive in executing the Form 1 or did so for any reason other than concern for the protection of the public and the need for the appellant’s psychiatric conditions to be treated prior to any consideration of release into the community. The appellant concedes that neither Waypoint nor any of his treating psychiatrists at that institution, including Dr. Livermore, were involved in the completion of the initial application. As in Starnaman, any abuse of process or other argument that is based on the premise that the Form 1 was executed for reasons other than a mental health purpose fails for lack of evidence.

[119] I agree with Ontario that the appellant’s psychiatric gating arguments are premised on the faulty notion that civil committal pursuant to the MHA is equivalent to punishment for crimes for which he has been punished under the Criminal Code, and thus are fundamentally flawed. He argues that civil committal following the completion of his criminal sentence amounts to an extension of his criminal sentence and double punishment for his crime. This argument misapprehends the fundamentally different nature and objectives of criminal and mental health legislations. The former is a penal statute while the latter is a protective statute designed to protect persons who pose a danger to themselves or others. The MHA detains individuals not for the purposes set out in the sentencing provisions of the Criminal Code, but instead for the purposes of treatment, and the protection of themselves and others: Stock, at para. 9; Starnaman (Gen. Div.), at para. 28, citing McCorkell v. Riverview Hospital (1993), 1993 1200 (BC SC), 81 B.C.L.R. (2d) 273 (BCSC), at para. 90; and C.B. v. Sawadsky, 2005 CarswellOnt 4870 (S.C.), at para. 53, aff’d 2006 34259 (ON CA), 82 O.R. (3d) 661.

[120] Any individual, regardless of his situation, may be subject to the provisions of the MHA. As stated by Quinlan J. in Nelson v. Her Majesty the Queen, at para. 32:

The Court of Appeal upheld the decision of O’Driscoll J. in the Ontario Court (General Division). O’Driscoll J. agreed with the proposition that the committal procedures in the MHA may operate regardless of whether a person is currently serving a prison term or is subject to some other form of involuntary confinement. The fact that a person is subject to incarceration under the Criminal Code does not immunize him or her from the application of the MHA provided the criteria in the MHA for committal are met.

[121] Accordingly, the fact that an individual becomes the subject of a Form 1 at the end of his penal sentence does not automatically result in an unlawful deprivation of liberty or an arbitrary detention. Those arguments would only be engaged if the record showed that the statutory requirements for the execution of the Form 1 were not met, which is not the case with the appellant.

[122] Further, it is faulty for the appellant to argue that his criminal antecedents were the only basis for the execution of the Form 1 by Dr. Hillen. Dr. Hillen took into account not only the nature and circumstances of the convictions themselves, but he also considered the appellant’s conduct while incarcerated and prior to incarceration, and the appellant’s health record which included the results of testing and the observations and conclusions of other psychiatrists who had assessed the appellant in the course of his incarceration.

[123] The appellant also argues that the Form 1 was completed without any “triggering event”. The Court of Appeal’s comments in Starnaman are inconclusive as to whether a triggering event is required for the execution of a Form 1 in the context of a person incarcerated: at p. 705. However, if such a triggering event is required, the events as relayed by the appellant’s parole officer to Dr. Hillen, as outlined in Dr. Hillen’s Institutional Consult Letter, would be sufficient. In my view, the events illustrate the extent to which the appellant’s illnesses cause him to be unable to appreciate the social inappropriateness of his conduct, conduct which has repeatedly throughout his life crossed the line into criminality. Dr. Hillen wrote:

She indicated that the patient had made two particularly odd statements to her in the context of interviews with her. On one occasion, he asked if he could be excused from the interview and asked if he can go to his room and obtain a condom so they could have sex in her office. On another occasion, he stated to her that the condom machine had been placed on the unit specifically for him to allow the female staff to act on their wishes to have sexual relations with him. In her view, these statements were both fear-provoking and out of context, suggesting that Mr. Nelson was suffering with delusions (ideas of reference, erotomanic delusions).

[124] The appellant argues that the Canadian government acted unlawfully by failing to release him on warrant expiry when his sentence had been affirmed by the Court of Appeal, and by failing to follow the statutory requirements of the MHA. The appellant has failed to show in this appeal how any of the statutory requirements of the MHA have been disregarded. This argument is essentially a repetition of his argument that the Form 1 was completed for reasons other than to effect the purposes of the MHA, and fails for the same reasons.

[125] The appellant further argues that his detention violates the principle of collateral estoppel, and thus is a violation of his rights under s.7 of the Charter. The principle is one that “prevents contradictory rulings on the same evidence, which would undermine public confidence in the administration of justice”. The appellant’s sentence was upheld by the Court of Appeal as a fit sentence. He argues that by certifying him just prior to his release from prison, the State was attempting to do indirectly what it could not to directly in law, thereby undermining the court’s decision and violating the doctrine of collateral estoppel.

[126] This argument suffers from the same difficulty as the appellant’s psychiatric gating arguments; the sentencing provisions in the Criminal Code following conviction serve a different purpose than civil committal under the MHA. While there may be some instances that the same evidence is relied on in each process, the two outcomes can never be equated as “inconsistent verdicts” or “contradictory rulings”.

[127] There is no doubt that ever since Dr. Hillen signed the Form 1, there has been an interference with the appellant’s rights to liberty. The execution of the Form 1 could be a breach of the appellant’s s. 7 Charter rights if it were shown that the deprivation of liberty entailed by its execution was not in accordance with the principles of fundamental justice. The appellant argues that he has been deprived of his liberty under circumstances which amount to an abuse of process and a violation of the principles of fundamental justice. He relies on R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 63. He submits that by creating provisions of the MHA which can be used to defeat the substantial procedural protections afforded by the dangerous offender provisions of the Criminal Code, the legislature has created a process that appears to be “no more than a pretext for the State to do indirectly what it could not do directly—detain the appellant beyond warrant expiry.”

[128] Again, these arguments essentially repeat the arguments surrounding psychiatric gating and abuse of process, and again fail to recognize the fundamental differences between the rationales for the provisions of the Criminal Code and the MHA. Furthermore, the scheme set out in the MHA for civil committal is lawful, subject to the Ontario Court of Appeal’s decision in P.S., and the portion of the MHA found to be unconstitutional has now been amended. Nothing in the MHA mandates or requires the physician to execute a Form 1. Accordingly, the liberty interest of the detainee is not engaged by the statute itself. As already noted several times, there is no evidence to conclude or even infer that Dr. Hillen acted with an improper purpose when executing the Form 1. Further, under the scheme of the MHA, a person can only be involuntarily detained on a Form 3 certificate of involuntary admission if two different physicians (the physician who completes the Form 1 application for assessment and the physician who completes the Form 3) have determined that the person meets the conditions set out in the Act. At regular and frequent intervals, a physician must again observe the patient and determined that he or she still meets the conditions for involuntary committal before a Form 4 or certificate of continuation can be signed. If the attending physician determines that treatment is not needed in a psychiatric facility, the patient must be released. Additionally, the patient has the opportunity to seek a review of the physician’s decision before the Board on each occasion that he or she has been found to meet the criteria for involuntary committal under the MHA. A further safeguard against arbitrary detention is created by the requirement that on the completion of every fourth certificate of review, such a review before the Board takes place automatically, even if the patient purports to have waived the right to a review. Finally, the Board, which is an expert and an arms-length tribunal, must make its own determination of whether the criteria for involuntary committal continue to be met. If they are not, the Board must rescind the patient certificate of involuntary admission or renewal. Even if the criteria are met, the Board retains the right to rescind the certificate.

[129] All of the above confirms that the MHA process is designed to ensure that the deprivation of an individual’s rights is neither arbitrary, overbroad, or grossly disproportionate. It is in fact a fair process that is both proportionate and rationally connected to achieving its objectives.

[130] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 105-109, 123, the Supreme Court of Canada noted the importance of engaging in a qualitative examination of the impact of the impugned law on an individual. The focus of such qualitative analysis under s. 7 of the Charter is whether anyone’s life, liberty, or security of the person has been denied by a law that is inherently bad. A “grossly disproportionate, overbroad, or arbitrary effect on one person is sufficient to establish a breach of s. 7”: at para. 123.

[131] According to Bedford, at para. 120, gross disproportionality applies where the seriousness of the deprivation is “totally out of sync” with the object of the law such that its impact is fundamentally unjust. Further, overbreadth is related to arbitrariness, in that the question is whether there is a connection between the laws effect and its objective.

[132] The MHA is a statute with more than one goal and attempts to strike a balance among those competing goals. One of its purposes is to “provide a scheme for the protection of society from the serious destructive acts of mentally disordered persons. On the other hand, the statute contains numerous provisions clearly intended to safeguard the interests of mentally disordered persons and to protect them from improper detention”: Dayday, at p. 596.

[133] The factum prepared by Ontario provides a fulsome analysis in accordance with the approach set out in Bedford which I repeat and adopt:

58. The MHA provides a fair process that is both proportionate and rationally connected to achieving its objectives. There is clearly a rational connection between the provisions of the MHA and each of its purposes. Permitting the involuntary committal of mentally ill persons who pose a risk of serious bodily harm to themselves or others enhances public safety. Requiring such persons to spend time in a psychiatric facility where they can be observed, examined and (with their consent) treated by medical professionals is rationally connected with the purpose of safeguarding the interests of mentally ill persons. Furthermore, the expedited review process provided by the CCB ensures that the continued necessity of such detention is reviewed regularly and expeditiously by and arms-length, expert tribunal. The decisions of this CCB can be appealed to this Honourable Court. The MHA is therefore not arbitrary.

59. With respect to overbreadth, the Act’s effect on Mr. Nelson as “the specific individual” concerned still bears a connection to its purposes. Psychiatrists who have examined Mr. Nelson and each CCB panel that has reviewed his detention, as well as the judge on the 2012 Application have all found that he continues to pose a risk of serious harm to others if released. His continued detention is therefore connected to protecting the safety of the public. Mr. Nelson also benefits from treatment opportunities made available to him in hospital. His continued detention is therefore connected to helping him recover from pedophilia and other psychiatric disorders. There is no disconnect between the law’s purpose and its effect on Mr. Nelson. The MHA is not overbroad.

60. Nor are the restrictions the MHA places on Mr. Nelson’s liberty and the procedures it provides to review those restrictions grossly disproportionate given the importance of protecting public safety and the consequences of a mistake. Releasing Mr. Nelson to the community, given the risk of harm to others that he poses, could be catastrophic to both Mr. Nelson and a new victim in the community. As such, the MHA is not grossly disproportionate.

[134] Since the MHA has been amended to address the procedural unfairness identified in P.S. which ensures that an individual’s liberty is being restricted no more than is necessary to deal with the risk that he or she poses to public safety, there are now no other aspects of the impugned statute that Mr. Nelson has been able to point to demonstrate a deprivation of liberty that is not in accordance with the principles of fundamental justice. The Consent and Capacity Board no longer lacks the jurisdiction to supervise the security level, privileges, therapy, and treatment of long-term detainees. The Board can make orders that would ensure that a long-term detainee’s liberty interests are appropriately balanced with the need for public protection.

[135] The appellant in this case, however, has not shown how the former s. 20(4)(b)(iii) and the restricted Board’s powers entailed by it affected him specifically. Unlike P.S., the appellant has never been assessed as being a candidate for anything other than a maximum security facility. Attempts to transfer him for treatment failed, as he was assessed as being too much of a risk to place with a vulnerable patient population. He has consistently had an individualized management plan to ensure that he is never alone with other patients. The appellant’s situation would appear not to allow for a less restrictive or onerous detention. The option of supervision in the community by the Circle of Support organization is not an option that the appellant has proved as being suitable to address either his needs or the needs of the community to remain protected from him.

[136] Further, unlike P.S., the appellant has not been deprived of any services. He has refused all treatment offered to him, other than a trial of an anti-androgen medication, which remains available to him but which he now rejects and claims it is unnecessary. Other than outright release, which he seeks, the appellant has not identified how the former provision, when applied to him, has resulted in any form of prejudice to him.

[137] For all of the same reasons, I am unable to conclude that either the MHA or the treatment of the appellant resulting from it has infringed his s. 12 Charter rights not to be subjected to any cruel and unusual treatment or punishment.

[138] The appellant also argues that his s. 9 Charter rights have been infringed, and relies on the same arguments as were raised in relation to his s. 7 arguments. Section 9 of the Charter provides that everyone has a right not to be arbitrarily detained or imprisoned. As stated by the Supreme Court of Canada in Charkaoui v. Canada (Citizen and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88, the guarantee in s. 9 expresses one of the most fundamental norms of the rule of law. Detention must not be arbitrary, but only in accordance with the law.

[139] However, a lawful detention is not arbitrary within the meaning of s. 9: R. v Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 20. The appellant has, for the reasons already given, failed to show how his detention has been unlawful or arbitrary. The facts and circumstances considered both at the time of the completion of the initial Form 1 and Form 3 in the appellant’s case, and that evidence which was considered by the Board on the appellant’s last certificate renewal, supports the conclusion that he is not being arbitrarily detained. He was initially detained because he met the criteria set out in the MHA. Additionally, I have found that he met the criteria required for renewal of the certificate once again at the latest hearing before the Board.

[140] The appellant also raises Charter s. 11(h), which provides that any person charged with an offence has the right, if finally found guilty and punished for the offence, not to be tried or punished for it again. The appellant relies on the Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 54, for the test to be applied in determining whether further state actions in relation to the same offence are precluded by s. 11(h):

(a) a proceeding that is criminal or quasi-criminal in nature (being “tried… again”);

(b) an additional sanction or consequence that meets the two-part Rodgers test for punishment (being “punished… again”) in that it is similar in nature to the types of sanctions available under the Criminal Code and is imposed in furtherance of the purpose and principles of sentencing; and

(c) retrospective changes to the conditions of the original sanction which have the effect of adding to the offender’s punishment (being “punished… again”).

[141] The appellant argues that his s. 11(h) rights are infringed because at the expiry of the warrant, state actors took steps to further sanction the appellant by further depriving him of liberty. Again, the problem with this argument is that the appellant’s ongoing detention is not for purposes of punishment and is entirely unrelated to any provisions of the Criminal Code. He is detained under the civil committal regime of the MHA, legislation that is non-punitive in purpose. Deprivation of liberty under the MHA is not punishment, and certainly cannot be considered so where, as here, the criteria under the Act have been met for civil committal.

[142] The other prong of the appellant’s Charter argument is that during the time that he has been detained he has been deprived of a forum before the Board that permits review of both the facts of his case, together with his substantive aspects of his continued detention, thereby violating his ss. 7 and 9 Charter rights. The basis for this submission is s. 70.1(1) of the HCCA, which provides:

The Board shall not inquire into or make a decision concerning the constitutional validity of a provision of an Act or a regulation.

[143] The appellant’s counsel argues that this provision specifically withholds from the Board the power to consider Charter questions. In so limiting the scope of the Board’s inquiry, a substantive review of the appellant’s detention is not permitted. This section removes from the Board all ability to consider and make a declaration as to the constitutionality of any part of the Act. However, this is a separate issue from whether an individual’s Charter rights have been infringed either in the manner of his treatment or in the application of the powers granted to state actors under the Act. It remains unclear whether the legislature intended to exclude the Charter from the scope of the questions of law to be addressed by the Board. Neither counsel appearing before me made out a clear case as to whether that section meets the test set out in R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at para. 81:

Building on the jurisprudence, therefore, when a remedy is sought from an administrative tribunal under s. 24(1), the proper initial inquiry is whether the tribunal can grant Charter remedies generally. To make this determination, the first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter — and Charter remedies — when resolving the matters properly before it

[144] Further, even though the question of whether the Board has the jurisdiction to grant a remedy pursuant to s. 24(1) of the Charter was raised in P.S, the Court declined to adjudicate on the issue: at para. 192. Sharpe J.A. did note, however, that in A.G. v. Patient the Divisional Court held that the Board lacks s. 24(1) jurisdiction: at para. 190.

[145] It is not necessary for me to settle such a question for the purposes of this appeal. However, to the extent that the appellant is indirectly attacking the constitutionality of s. 70.1 of the HCCA, the law is settled that it is open to the Legislature to limit the jurisdiction of tribunals over constitutional questions, given that administrative tribunals are creatures of statute and created precisely for the purpose of implementing government policy. The Charter did not alter the rule that a tribunal’s power derives from its enabling legislation and that it may only perform those tasks and exercise those powers which are granted to it expressly or impliedly: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, at paras. 23-24; R. v. 97649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 26; Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, at p. 952-953; and Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 42.

[146] Further, if it is the case that the Board has no jurisdiction to examine Charter issues, the scheme of the Act requires an expedited appeal to the Superior Court, which does have the jurisdiction to consider both legal and Charter issues: A.G. v. Patient, at paras. 52-54. Further, as was seen in the 2012 habeas corpus application, where a civilly committed patient believes the conditions of his or her detention or treatment infringed the Charter, or some other legal right, the Superior Court is available to remedy Charter breaches and enforce legal rights. It is difficult to understand how it is contrary to the principles of fundamental justice for the legislature to create a statutory scheme where the Superior Court of Justice is tasked with considering the Charter rights of a psychiatric patient.

Is the Appellant Entitled to a Remedy

[147] The appellant has not established that any of his Charter rights have been breached by either the conduct of psychiatric gating, by the application of the MHA to him particularly, or by the limited jurisdiction of the Board.

[148] If I am incorrect in this finding, however, and the decision in P.S. entitles the appellant to a declaration that his s. 7 rights have been infringed due to the unconstitutionality of the former s.20 of the MHA, then I still find that beyond that declaration, the appellant is entitled to no particular remedy other than that which has now been provided through the amendment to the MHA. Although I have taken heed from the court’s comments in P.S. that a s. 52(1) declaration of invalidity does not preclude an individual remedy under s. 24(2), this is not a case where such remedy is necessitated beyond allowing the Board to now access its expanded powers to consider Mr. Nelson’s situation to ensure that he is given the least restrictive detention options merited by his case. In the event that no Board hearing has been convened since this matter was argued before me, it is ordered pursuant to s. 80(1)(c) of the HCCA that this matter be referred back to the Board for a rehearing in respect of the conditions to be attached to the appellant’s ongoing detention, in light of the Board’s expanded powers.

HEALEY J.

Released: February 22, 2016

Appendix A

Mental Health Act, R.S.O. 1990, c. M.7, s. 20, prior to the Mental Health Statue Law Amendment Act, 2015, S.O. 2015, c. 36

Application for psychiatric assessment

15. (1) Where a physician examines a person and has reasonable cause to believe that the person,

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

the physician may make application in the prescribed form for a psychiatric assessment of the person. R.S.O. 1990, c. M.7, s. 15 (1); 2000, c. 9, s. 3 (1).

Same

(1.1) Where a physician examines a person and has reasonable cause to believe that the person,

(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person; and

(b) has shown clinical improvement as a result of the treatment,

and if in addition the physician is of the opinion that the person,

(c) is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; and

(e) is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained,

the physician may make application in the prescribed form for a psychiatric assessment of the person. 2000, c. 9, s. 3 (2).

Contents of application

(2) An application under subsection (1) or (1.1) shall set out clearly that the physician who signs the application personally examined the person who is the subject of the application and made careful inquiry into all of the facts necessary for him or her to form his or her opinion as to the nature and quality of the mental disorder of the person. R.S.O. 1990, c. M.7, s. 15 (2); 2000, c. 9, s. 3 (3).

Idem

(3) A physician who signs an application under subsection (1) or (1.1),

(a) shall set out in the application the facts upon which he or she formed his or her opinion as to the nature and quality of the mental disorder;

(b) shall distinguish in the application between the facts observed by him or her and the facts communicated to him or her by others; and

(c) shall note in the application the date on which he or she examined the person who is the subject of the application. R.S.O. 1990, c. M.7, s. 15 (3); 2000, c. 9, s. 3 (4).

Signing of application

(4) An application under subsection (1) or (1.1) is not effective unless it is signed by the physician within seven days after he or she examined the person who is the subject of the examination. R.S.O. 1990, c. M.7, s. 15 (4); 2000, c. 9, s. 3 (5).

Authority of application

(5) An application under subsection (1) or (1.1) is sufficient authority for seven days from and including the day on which it is signed by the physician,

(a) to any person to take the person who is the subject of the application in custody to a psychiatric facility forthwith; and

(b) to detain the person who is the subject of the application in a psychiatric facility and to restrain, observe and examine him or her in the facility for not more than 72 hours. R.S.O. 1990, c. M.7, s. 15 (5); 2000, c. 9, s. 3 (6).

Duty of attending physician

20. (1) The attending physician, after observing and examining a person who is the subject of an application for assessment under section 15 or who is the subject of an order under section 32,

(a) shall release the person from the psychiatric facility if the attending physician is of the opinion that the person is not in need of the treatment provided in a psychiatric facility;

(b) shall admit the person as an informal or voluntary patient if the attending physician is of the opinion that the person is suffering from mental disorder of such a nature or quality that the person is in need of the treatment provided in a psychiatric facility and is suitable for admission as an informal or voluntary patient; or

(c) shall admit the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in subsection (1.1) or (5) are met. R.S.O. 1990, c. M.7, s. 20 (1); 2000, c. 9, s. 7 (1).

Conditions for involuntary admission

(1.1) The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion that the patient,

(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person;

(b) has shown clinical improvement as a result of the treatment;

(c) is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment;

(e) has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained; and

(f) is not suitable for admission or continuation as an informal or voluntary patient. 2000, c. 9, s. 7 (2).

Physician who completes certificate of involuntary admission

(2) The physician who completes a certificate of involuntary admission pursuant to clause (1) (c) shall not be the same physician who completed the application for psychiatric assessment under section 15. R.S.O. 1990, c. M.7, s. 20 (2).

Release of person by officer in charge

(3) The officer in charge shall release a person who is the subject of an application for assessment under section 15 or who is the subject of an order under section 32 upon the completion of 72 hours of detention in the psychiatric facility unless the attending physician has released the person, has admitted the person as an informal or voluntary patient or has admitted the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission. R.S.O. 1990, c. M.7, s. 20 (3).

Authority of certificate

(4) An involuntary patient may be detained, restrained, observed and examined in a psychiatric facility,

(a) for not more than two weeks under a certificate of involuntary admission; and

(b) for not more than,

(i) one additional month under a first certificate of renewal,

(ii) two additional months under a second certificate of renewal, and

(iii) three additional months under a third or subsequent certificate of renewal,

that is completed and filed with the officer in charge by the attending physician. R.S.O. 1990, c. M.7, s. 20 (4).

Conditions for involuntary admission

(5) The attending physician shall complete a certificate of involuntary admission or a certificate of renewal if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient. R.S.O. 1990, c. M.7, s. 20 (5); 2000, c. 9, s. 7 (3, 4).

Change of status, where period of detention has expired

(6) An involuntary patient whose authorized period of detention has expired shall be deemed to be an informal or voluntary patient. R.S.O. 1990, c. M.7, s. 20 (6).

Idem, where period of detention has not expired

(7) An involuntary patient whose authorized period of detention has not expired may be continued as an informal or voluntary patient upon completion of the approved form by the attending physician. R.S.O. 1990, c. M.7, s. 20 (7); 2000, c. 9, s. 7 (5).

Examination of certificate by officer in charge

(8) Forthwith following completion and filing of a certificate of involuntary admission or of a certificate of renewal, the officer in charge or his or her delegate shall review the certification documents to ascertain whether or not they have been completed in compliance with the criteria outlined in this Act and where, in his or her opinion, the documents are not properly completed, the officer in charge shall so inform the attending physician and, unless the person is re-examined and released or admitted in accordance with this section, the officer in charge shall release the person. R.S.O. 1990, c. M.7, s. 20 (8); 2000, c. 9, s. 7 (6).

Mental Health Act, R.S.O. 1990, c. M.7, s. 20, subsequent to the Mental Health Statue Law Amendment Act, 2015, S.O. 2015, c. 36

Duty of attending physician

20. (1) The attending physician, after observing and examining a person who is the subject of an application for assessment under section 15 or who is the subject of an order under section 32,

(a) shall release the person from the psychiatric facility if the attending physician is of the opinion that the person is not in need of the treatment provided in a psychiatric facility;

(b) shall admit the person as an informal or voluntary patient if the attending physician is of the opinion that the person is suffering from mental disorder of such a nature or quality that the person is in need of the treatment provided in a psychiatric facility and is suitable for admission as an informal or voluntary patient; or

(c) shall admit the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission if the attending physician is of the opinion that the conditions set out in subsection (1.1) or (5) are met. R.S.O. 1990, c. M.7, s. 20 (1); 2000, c. 9, s. 7 (1).

Conditions for involuntary admission

(1.1) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion that the patient,

(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person;

(b) has shown clinical improvement as a result of the treatment;

(c) is suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

(d) given the person’s history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment;

(e) has been found incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained; and

(f) is not suitable for admission or continuation as an informal or voluntary patient. 2000, c. 9, s. 7 (2); 2015, c. 36, s. 1.

Physician who completes certificate of involuntary admission

(2) The physician who completes a certificate of involuntary admission pursuant to clause (1) (c) shall not be the same physician who completed the application for psychiatric assessment under section 15. R.S.O. 1990, c. M.7, s. 20 (2).

Release of person by officer in charge

(3) The officer in charge shall release a person who is the subject of an application for assessment under section 15 or who is the subject of an order under section 32 upon the completion of 72 hours of detention in the psychiatric facility unless the attending physician has released the person, has admitted the person as an informal or voluntary patient or has admitted the person as an involuntary patient by completing and filing with the officer in charge a certificate of involuntary admission. R.S.O. 1990, c. M.7, s. 20 (3).

Authority of certificate

(4) An involuntary patient may be detained, restrained, observed and examined in a psychiatric facility,

(a) for not more than two weeks under a certificate of involuntary admission; and

(b) for not more than,

(i) one additional month under a first certificate of renewal,

(ii) two additional months under a second certificate of renewal,

(iii) three additional months under a third certificate of renewal, and

(iv) three additional months under a first or subsequent certificate of continuation,

that is completed and filed with the officer in charge by the attending physician. R.S.O. 1990, c. M.7, s. 20 (4); 2015, c. 36, s. 4 (1).

Conditions for involuntary admission

(5) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient. R.S.O. 1990, c. M.7, s. 20 (5); 2000, c. 9, s. 7 (3, 4); 2015, c. 36, s. 1.

Change of status, where period of detention has expired

(6) An involuntary patient whose authorized period of detention has expired shall be deemed to be an informal or voluntary patient. R.S.O. 1990, c. M.7, s. 20 (6).

Idem, where period of detention has not expired

(7) An involuntary patient whose authorized period of detention has not expired may be continued as an informal or voluntary patient upon completion of the approved form by the attending physician. R.S.O. 1990, c. M.7, s. 20 (7); 2000, c. 9, s. 7 (5).

Examination of certificate by officer in charge

(8) Forthwith following completion and filing of a certificate of involuntary admission, a certificate of renewal or a certificate of continuation, the officer in charge or his or her delegate shall review the certification documents to ascertain whether or not they have been completed in compliance with the criteria outlined in this Act and where, in his or her opinion, the documents are not properly completed, the officer in charge shall so inform the attending physician and, unless the person is re-examined and released or admitted in accordance with this section, the officer in charge shall release the person. R.S.O. 1990, c. M.7, s. 20 (8); 2000, c. 9, s. 7 (6); 2015, c. 36, s. 4 (2).

[^1]: The mandatory hearing pursuant to s. 39(4) of the Mental Health Act was held on March 14, 2013, the Board’s decision confirming the appellant’s involuntary status was delivered on March 15, 2013, and the Reasons for Decision of the Board were released on March 18, 2013.

[^2]: Sections 15 and 20 of the MHA prior to the amendments in the Mental Health Statue Law Amendment Act, 2015, S.O. 2015, c. 36, are appended to these Reasons.

[^3]: It is recognized that the appellant had a previous admission to Waypoint Centre for Mental Health Care (formerly Mental Health Center Penetanguishene (Oak Ridge Division)) in September 1999 on a Form 1, where he was detained under the MHA until March 17, 2000. However, for the purposes of this decision, the Form 1 executed in March 2005 is referred to as the “initial Form 1”.

[^4]: Exhibit 6 at the Consent and Capacity Board Hearing held on March 14, 2013 for Rodney Nelson.

[^5]: Section 20(5) of the MHA prior to the amendments in the Mental Health Statue Law Amendment Act, 2015.

[^6]: Section 20 of the MHA subsequent to the amendments in the Mental Health Statue Law Amendment Act, 2015, is appended to these Reasons.

[^7]: Bill 122, An Act to amend the Mental Health Act and the Heath Care Consent Act, 1996, 1st Sess, 41st Leg, Ontario, 2015 (assented to 10 December 2015), S.O. 2015, c. 36.

[^8]: Exhibit 2 at the Consent and Capacity Board Hearing held on March 14, 2013 for Rodney Nelson.

[^9]: Exhibit 7 at the Consent and Capacity Board Hearing held on March 14, 2013 for Rodney Nelson.