Court File and Parties

COURT FILE NO.: CV-17-587085 DATE: 2019-04-26 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

THOMAS CHRISTIAN ZAUGG Applicant – and – ONTARIO (ATTORNEY GENERAL) Respondent

Counsel: Thomas Zaugg, for himself Audra Ranalli, for the Respondent

HEARD: March 25, 2019

SOSSIN J.

Reasons for Decision

Overview

[1] This motion is brought by the defendant, the Attorney General for Ontario (“Ontario”), originally identified as Yasir Naqvi, the Rightful Attorneys [sic] General of Ontario and, on consent, changed to the present style of cause, to strike the claim brought by the plaintiff, Thomas Christian Zaugg (“Zaugg”) under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules of Civil Procedure”).

[2] Zaugg brought a notice of application against Ontario, dated November 23, 2017. On March 18, 2018, he provided a statement of material facts in support of his application.

[3] Zaugg challenges sections 15, 16, 17, 18 and 19 of the Mental Health Act, R.S.O. 1990, c. M.7, which deal with involuntary admissions, under sections 2(a), 2(b), 2(c), 7, 8, 9, 10, 12, and 15 of the Charter of Rights of Freedoms (the “Charter”).

[4] Zaugg also challenges s. 26 of the MHA (providing authority to withhold information to and from patients) under s. 2(b) of the Charter, s. 53 of the MHA (providing for procedural protections regarding the use of restraint) under ss. 2(b) and 12 of the Charter, and s. 54 of the MHA (dealing with assessment of incapacity to manage property) under s. 7 of the Charter.

[5] In this application, Zaugg seeks several remedies, including:

(a) damages in the amount of $21,000,000.00 under s. 24.1 [sic] of the Charter; (b) the complete expungement of his psychiatric records and connected police files; and (c) that sections 15, 16, 17, 18, 19, 26, 53 and 54 of the MHA be struck down for violating the Charter.

[6] Ontario brings this motion for an order striking out the notice of application, as against Ontario, dated October 26, 2018.

[7] For the reasons that follow, Ontario’s motion to strike the application is granted.

Legislative Provisions

[8] The following provisions of the MHA are alleged to violate the Charter in this application:

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).

Justice of the peace’s order for psychiatric examination

16 (1) Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice,

(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 in addition based upon the information before him or her the justice of the peace has reasonable cause to believe 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 justice of the peace may issue an order in the prescribed form for the examination of the person by a physician. R.S.O. 1990, c. M.7, s. 16 (1); 2000, c. 9, s. 4 (1).

Same

(1.1) Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice,

(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 in addition based upon the information before him or her the justice of the peace has reasonable cause to believe 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 apparently 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 justice of the peace may issue an order in the prescribed form for the examination of the person by a physician. 2000, c. 9, s. 4 (2).

Idem

(2) An order under this section may be directed to all or any police officers of the locality within which the justice has jurisdiction and shall name or otherwise describe the person with respect to whom the order has been made. R.S.O. 1990, c. M.7, s. 16 (2); 2000, c. 9, s. 4 (3).

Authority of order

(3) An order under this section shall direct, and, for a period not to exceed seven days from and including the day that it is made, is sufficient authority for any police officer to whom it is addressed to take the person named or described therein in custody forthwith to an appropriate place where he or she may be detained for examination by a physician. R.S.O. 1990, c. M.7, s. 16 (3); 2000, c. 9, s. 4 (4).

Manner of bringing information before justice

(4) For the purposes of this section, information shall be brought before a justice of the peace in the prescribed manner. 2000, c. 9, s. 4 (5).

Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner 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 in addition the police officer 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,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician. 2000, c. 9, s. 5.

Place of psychiatric examination

18 An examination under section 16 or 17 shall be conducted by a physician forthwith after receipt of the person at the place of examination and where practicable the place shall be a psychiatric facility or other health facility. R.S.O. 1990, c. M.7, s. 18.

Change from informal or voluntary patient to involuntary patient

19 Subject to subsections 20 (1.1) and (5), the attending physician may change the status of an informal or voluntary patient to that of 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. 19; 2000, c. 9, s. 6.

Communications to and from patients

26 (1) Except as provided in this section, no communication written by a patient or sent to a patient shall be opened, examined or withheld, and its delivery shall not in any way be obstructed or delayed. R.S.O. 1990, c. M.7, s. 26 (1).

Where communication may be withheld

(2) Where the officer in charge or a person acting under his or her authority has reasonable and probable cause to believe,

(a) that the contents of a communication written by a patient would,

(i) be unreasonably offensive to the addressee, or

(ii) prejudice the best interests of the patient; or

(b) that the contents of a communication sent to a patient would,

(i) interfere with the treatment of the patient, or

(ii) cause the patient unnecessary distress,

the officer in charge or a person acting under his or her authority may open and examine the contents thereof and, if any condition mentioned in clause (a) or (b), as the case may be, exists, may withhold such communication from delivery. R.S.O. 1990, c. M.7, s. 26 (2).

Exceptions

(3) Subsection (2) does not apply to a communication written by a patient to, or appearing to be sent to a patient by,

(a) a barrister and solicitor;

(b) a member of the Board; or

(c) a member of the Assembly. R.S.O. 1990, c. M.7, s. 26 (3); 1992, c. 32, s. 20 (6).

Documentation of use of restraint

53 (1) The use of restraint on a patient shall be clearly documented in the patient’s record of personal health information by the entry of a statement that the patient was restrained, a description of the means of restraint and a description of the behaviour of the patient that required that the patient be restrained or continue to be restrained. R.S.O. 1990, c. M.7, s. 53 (1); 2004, c. 3, Sched. A, s. 90 (18).

Chemical restraint

(2) Where a chemical restraint is used, the entry shall include a statement of the chemical employed, the method of administration and the dosage. R.S.O. 1990, c. M.7, s. 53 (2).

Examination on admission to determine capacity

54 (1) Forthwith on a patient’s admission to a psychiatric facility, a physician shall examine him or her to determine whether the patient is capable of managing property. 1992, c. 32, s. 20 (41).

Examination at other times

(2) A patient’s attending physician may examine him or her at any time to determine whether the patient is capable of managing property. 1992, c. 32, s. 20 (41).

Record of personal health information

(3) After an examination under subsection (1) or (2), the physician shall note his or her determination, with reasons, in the patient’s record of personal health information. 1992, c. 32, s. 20 (41); 2004, c. 3, Sched. A, s. 90 (19).

Certificate of incapacity

(4) If the physician determines that the patient is not capable of managing property, he or she shall issue a certificate of incapacity in the approved form, and the officer in charge shall transmit the certificate to the Public Guardian and Trustee. 1992, c. 32, s. 20 (41); 2000, c. 9, s. 24.

Same

(5) If the circumstances are such that the Public Guardian and Trustee should immediately assume management of the patient’s property, the officer in charge (or the physician who examined the patient, if the officer in charge is absent) shall notify the Public Guardian and Trustee of the matter as quickly as possible. 1992, c. 32, s. 20 (41).

Exception

(6) This section does not apply if,

(a) the patient’s property is under guardianship under the Substitute Decisions Act, 1992; or

(b) the physician believes on reasonable grounds that the patient has a continuing power of attorney under that Act that provides for the management of the patient’s property. 2001, c. 9, Sched. B, s. 9.

[9] The Charter provisions raised in this application are the following:

FUNDAMENTAL FREEDOMS

Fundamental freedoms

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

LEGAL RIGHTS

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

EQUALITY RIGHTS

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

ENFORCEMENT

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

APPLICATION OF THE CHARTER

Application of the Charter

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Background

[10] In his statement of material facts in support of his application and factum, Zaugg states that he has been involuntarily admitted to psychiatric facilities under the MHA on several occasions, and has been subjected during those incidents to physical and chemical restraint.

[11] Zaugg’s statement of material facts elaborates on his personal experiences with involuntary admissions under the MHA. For example, in his statement of material facts, Zaugg states (at paras. 7-8) that he is “an ordained priest of the Church of Jesus Christ of Latter-Day Saints” and that on October 26, 2009, he was detained, brought to a psychiatric facility, and chemically restrained because of his “religious fanaticism.”

[12] In his factum, Zaugg provides additional detail on this incident (at para. 9):

On October 26, 2009 police and paramedics arrived at my front door … They coerced their way into my apartment and began investigating the area. I was disturbed by the presence of these personnel at my residence while in the midst of having a personal and powerful spiritual experience. They were intrusive and disruptive to the peaceful atmosphere I had achieved. Their questions were intrusive, bullying and impersonal. Upon apprehension under s. 17 my emotional state was fully disturbed. I had just been arrested in my own home for praying. I knew in that instant this was an egregious violation of my rights…

[13] In his statement of material facts, Zaugg describes other similar incidents during the period 2009-2016, such as an occasion in which he was “detained at a protest,” brought to a psychiatric facility, and chemically restrained, and an occasion in which he was involuntarily detained for ten days following the posting of a video to YouTube.

[14] Zaugg also raises systemic concerns in relation to the MHA involuntary admission provisions. He emphasizes that those alleged to have engaged in criminal wrongdoing receive a range of due process protections that are denied to those who are involuntarily restrained or admitted under the MHA legislative scheme. For example, in his statement of material facts, Zaugg states (at para. 13):

On 18/02/2015 Mr. Zaugg visited his former high school to meet with a faculty member and was subjected to a psychiatric arrest contrary to section 15(1) of the charter. If the school felt Mr. Zaugg was trespassing he should have been criminally charged with such, and given right to fair trial and defence against said allegation.

[15] Zaugg’s position is that this legislative scheme, as a whole, is aimed at the suppression of people who have similar experiences to his own. For example, in his factum he asserts (at para. 32):

I know for a fact there are thousands of Canadians receiving psychiatric treatment against their will, many of them having their own spiritual experiences, which psychiatry arbitrarily labels as insanity. We are subject to forced drugging and incarnation [sic]. All of this is done under the guise of ‘this is for your own good’. Our rights to reject the medication and arbitrary detention are consistently ignored.

[16] Ontario’s position is that Zaugg’s application should be struck in its entirety. Ontario submits that the Charter claims with respect to the involuntary admission provisions of the MHA and sections 7-12 of the Charter have been recently decided by the Court of Appeal for Ontario, and that these decisions are binding on this Court. Ontario argues that these claims, in light of the existing case law, cannot succeed (at para. 26):

Although courts have expressed a reluctance to strike “novel” claims under Rule 21, in the instant case this concern is not applicable. The Applicant’s Charter claims are not novel. The substance of the s.7, 8, 9, 10 and 12 Charter claims made by the Applicant against the involuntary admission criteria in the MHA have been repeatedly considered and rejected by Ontario courts including the Ontario Court of Appeal.

[17] Ontario asserts that the alleged breaches of sections 2(a), (b), and (c) of the Charter have no reasonable prospect of success.

[18] Ontario argues that Zaugg has failed to show how the involuntary admission provisions result in substantive discrimination under s. 15(1) of the Charter and so this challenge also has no reasonable prospect of success.

[19] With respect to the provisions of the MHA relating to other constraints on those involuntarily admitted, Ontario submits that Zaugg has failed to plead material facts which engage these provisions, and that they cannot be challenged under the Charter in the abstract.

[20] In its factum, Ontario argues generally that (at para. 46):

The Applicant’s challenge is improperly directed at the Act, rather than the authorities who have applied the MHA’s provisions and individually assessed and treated the Applicant. Ontario is not responsible for clinical care decisions made by physicians in psychiatric hospitals. The Applicant has challenged the constitutionality of the MHA in this Application and named Ontario as the only respondent. He has not challenged the actions of administrative and clinical decision-makers exercising authority under the MHA.

[21] Therefore, Ontario submits that Zaugg’s application in its entirety has no reasonable prospect of success.

Analysis

[22] Under Rule 21.01(1)(b) of the Rules of Civil Procedure, a pleading may be struck on the ground that it fails to disclose a reasonable cause of action or that has no reasonable prospect of success, which also applies to applications under Rule 14.09.

[23] Under Rule 21, the moving party must establish that the pleadings, assuming the facts as pleaded are true, disclose no reasonable cause of action, or have no reasonable prospect of success. The analytical framework for assessing whether to strike out a pleading on the ground that it discloses no reasonable cause of action was set out by Paul M. Perell and John W. Morden in The Law of Civil Procedure in Ontario, 1st ed. (Markham: LexisNexis Canada Inc., 2010) at p. 445, and adopted by the Court of Appeal for Ontario in Trillium Power Wind Corp. v. Ontario (Natural Resources), 2013 ONCA 683, 117 O.R. (3d) 721 at para. 30:

The following principles apply to a Rule 21 motion to strike a pleading for failing to disclose a reasonable cause of action or defence: (a) the material facts pleaded must be deemed to be proven or true, except to the extent that the alleged facts are patently ridiculous or incapable of proof; (b) the claim incorporates by reference any document pleaded and the court is entitled to read and rely on the terms of such documents as if they were fully quoted in the pleadings; (c) novelty of the cause of action is of no concern at this stage of the proceeding; (d) the statement of claim must be read generously to allow for drafting deficiencies; and (e) if the claim has some chance of success, it must be permitted to proceed.

[24] In R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, the Supreme Court stated (at para. 25) for purposes of a Rule 21 motion, the motions judge must assume “that the claim will proceed through the court system in the usual way – in adversarial system where judges are under a duty to apply the law as set out in (and as it may develop from) statutes and precedent.”

[25] Applying this framework to the motion to strike in this case, Ontario groups the various MHA provisions which breach the Charter into two categories.

[26] First, the MHA establishes a legislative scheme whereby individuals may be involuntarily assessed or admitted to a psychiatric facility if they are found to pose a danger to themselves or others, due to a mental health condition (collectively, the “involuntary admission provisions”).

[27] Second, in addition to the Charter challenges to the involuntary admission provisions, Zaugg challenges several other sections of the MHA (collectively, the “ancillary provisions”), including:

(a) section 26, which provides authority for communications to and from a person who has been admitted to be examined under the MHA, and the criteria under which communications can be withheld to and from such a person;

(b) section 53, which governs how the use of restraints under the MHA is documented; and

(c) section 54, which addresses the capacity of an admitted patient under the MHA to manage property.

[28] I will deal with each cluster of alleged breaches, in turn, under the Rule 21 framework.

The Application’s Challenge to the Involuntary Admission Provisions

[29] The involuntary admission provisions, as set out above, cover two main scenarios referred to as “Box A” criteria and “Box B” criteria.

[30] The “Box A” criteria justify involuntary assessment and admission where a person is apparently suffering from mental disorder that would likely result in serious bodily harm to another person or to themselves.

[31] The “Box A” criteria have been subject to prior Charter challenges and were upheld in C.B. v. Sawadsky, [2005] O.J. No. 3682 at paras. 55-65 (S.C.), aff’d on other grounds, (2006), 82 O.R. (3d) 661 (C.A.), leave to appeal ref’d, [2006] S.C.C.A. No. 479, with respect to ss. 7 - 12 of the Charter. The Court’s rationale in upholding these provisions is that they facilitate an individualized assessment of an individual’s situation by a physician, with procedural protections in place. With respect to the Charter challenge of the “Box A” criteria, Karakatsanis J. (as she then was) held:

What do ss. 7, 9, and 10 of the Charter require in relation to the detention under the Mental Health Act?

[55] Canadian courts have accepted the fundamental legitimacy of intervention by involuntary hospitalization of the mentally ill. However, they have stated that there are limits to the power of government in this area and that legislation must afford a fair opportunity for the patient to contest the need for involuntary confinement.

[56] The MHA specifically addresses the section 7, 9 and 10 Charter rights in provisions that protect persons' interests in knowing why they are detained, knowing that they may contact counsel, and knowing that they may review decisions to detain them as involuntary patients.

[57] The provisions vary depending on the length of the detention that has elapsed. Form 1 under the MHA authorizes a period of detention for a maximum of 72 hours. Section 38.1 (1), (2) provides that a doctor who applies for an assessment under Form 1 must promptly provide a Form 42 that informs the person in writing of the reasons for the detention and the right to instruct counsel. Other sections of the MHA provide for oral advice by a provided rights adviser. There is no such requirement for oral advice where a person is detained on a Form 1.

[58] Other sections of the MHA provide greater protection to a person who will be detained for longer than 72 hours. When a doctor completes a certificate of either involuntary admission or renewal he must promptly give notice to the patient and promptly notify the hospital rights adviser. This notice must tell the patient the reasons for detention, that the patient has the right to retain and instruct counsel without delay, and that the patient is entitled to a hearing before the Consent and Capacity Board: see s. 38 of the MHA. The MHA goes so far as to deem a person to have applied to the board on a fourth certificate of renewal: MHA s. 39(4). It states that a waiver by an involuntary patient of an application or a deemed right to an application is a nullity: MHA s. 39(5). These sections do not appear in the sections dealing with initial assessment on a Form 1. The MHA specifically provides higher levels of procedural protection where a person's detention may last weeks or months.

[59] The procedure set out in s. 15 of the MHA has been considered in the context of convicted offenders who, shortly before their release from prison, are assessed and detained pursuant to the MHA. Ontario courts have upheld the MHA process as being constitutionally valid: Robertson v. Canada (Attorney General), 2000 CarswellOnt 318 (Ont. S.C.J.) at para. 52 [Robertson]; Starnaman v. Penetanguishene Mental Health Centre (1995), 24 O.R. (3d) 701 (Ont. C.A.); Penetanguishene Mental Health Centre v. Stock (1994), 116 D.L.R. (4th) 550 (Ont. Gen. Div.); Khan v. St. Thomas Psychiatric Hospital (1992), 7 O.R. (3d) 303 (Ont. C.A.).

[60] In each of the cases, convicted offenders were transferred to psychiatric facilities shortly before they were to be released from prison. They were held for 60 days or more as involuntary patients. C.B. was detained for an estimated six-hours. (Even on the plaintiff's psychological detention theory, her detention lasted three-days at most.) The offenders went from incarceration in prison to involuntary detention in a psychiatric facility. C.B. went from her residence to the hospital and ultimately returned to her residence.

[61] The case law has clearly stated that the MHA procedure for involuntary confinement contains procedures that uphold a person's Charter rights. In Robertson at para 43 Justice Epstein held that the procedure was:

a system that has been examined and has been found to be valid and not to infringe the Charter rights of those whose freedom may be affected by its application. Accordingly, as long as those charged with administering the system do so in accordance with the statutory provisions and in good faith then any actions taken pursuant to that authority are valid.

[62] The Ontario Court of Appeal has held that the procedure for involuntary commitment does not contravene ss. 7 or 12 of the Charter: Starnaman v. Penetanguishene Mental Health Centre (1995), 24 O.R. (3d) 701 (Ont. C.A.), motion to extend the time in which to apply for leave to appeal dismissed, (S.C.C.). In that case, shortly before Starnaman was due to be released from prison, a psychiatrist at the regional treatment centre located within Kingston Penitentiary applied for a psychiatric assessment of Starnaman pursuant to s. 15 of the MHA. A psychiatrist at the Mental Health Centre concluded that he should be held as an involuntary patient and signed a certificate of involuntary admission, which was subsequently renewed twice. On application by Starnaman, the Review Board upheld the certificate of involuntary admission and the subsequent renewals. An appeal from the Board's decision was dismissed. Starnaman appealed. The court held at para. 12 that:

The appellant next argues that the procedure set out in the Mental Health Act for the determination of the involuntary admission of the appellant is procedurally inadequate and contravenes s. 7 of the Canadian Charter of Rights and Freedoms. The appellant contends that, while the procedure may be adequate for the purposes of short-term involuntary commitment, it is not adequate for longer-term commitments such as occurred in this case. We are not satisfied that the scheme set out in the Act is constitutionally deficient. While that is not to say that the necessary fairness standard may not be reached in a particular case, we find no procedural unfairness in this record.

[63] In C.B.'s case, she was confined for several hours and only for the purpose of the assessment. The legislation has been upheld even in the context of offenders who are essentially detained in a psychiatric facility for 60 days or more beyond their prison release date.

[64] Case law has stated clearly that the MHA is designed to protect and not detain needlessly or imprison. The MHA is not inconsistent with s. 7 right to liberty. See also: Clark v. Clark (1982), 40 O.R. (2d) 383 (Ont. Co. Ct.). The cases discussed above have held that the MHA procedures for involuntary confinement are constitutionally valid and do not infringe the Charter.

[65] I have found that the MHA provisions have been complied with; I have found that Dr. Sawadsky advised C.B. of his application under Form I and provided her with the written Form 42 advising her of her rights to counsel, 'promptly' after his decision to apply for a psychiatric assessment. The fact that the Form 1 was not signed in the area confirming service of the Form 42 does not in my view raise procedural unfairness. It only raised an evidentiary issue of whether it was in fact delivered. The case law is clear that the protections within the MHA are sufficient to protect Charter rights. I find that the MHA provisions were complied with; this satisfies the Charter requirements. C.B.'s section 7 Charter rights to liberty were not infringed. As a result her section 9 and 10 rights have also not been infringed.

[32] In the result, the Court upheld the “Box A” criteria for involuntary admission in C.B. v. Sawadsky.

[33] The “Box B” criteria, also referred to as “Brian’s Law” (Mental Health Legislative Reform, 2000, S.O. 2000, c. 9), permits the temporary involuntary assessment and admission of a person who has a serious mental disorder and, if not treated, is likely to suffer substantial mental or physical deterioration or serious physical impairment.

[34] The “Box B” criteria were recently reviewed by the Court of Appeal for Ontario in Thompson v. Ontario, 2016 ONCA 676, 134 O.R. (3d) 255 (“Thompson”), where Sharpe J.A., writing for the Court, described the scheme and recent amendments to it in the following terms (at paras. 7-14):

[7] Before the enactment of Brian’s Law in 2000, individuals could be involuntarily committed for treatment under the Mental Health Act, R.S.O. 1990, c. M.7 if they were apparently suffering from mental disorder that would likely result in serious bodily harm to another person or to themselves (the “Box A” criteria). Charter challenges to the Box A criteria were rejected: C.B. v. Sawadsky, [2005] O.J. No. 3682 (S.C.J.), aff’d on other grounds (2006), 82 O.R. (3d) 661 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. no. 479; Robertson v. Canada (A.G.), 2000 CarswellOnt 318 (S.C.J.); Starnaman v. Penetanguishene Mental Health Centre, [1994] O.J. No. 1958 (Gen. Div.), aff’d (1995), 24 O.R. (3d) 701 (C.A.).

[8] Brian’s Law expanded the grounds for involuntary committal. It added s. 15(1.1), known as the “Box B” criteria. These allow for a 72 hour restraint and examination period in a psychiatric facility where the physician has reasonable cause to believe that the person “is likely to suffer substantial mental or physical deterioration or serious physical impairment” if 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,

(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.

[9] The person must also be incapable of consenting to treatment and the consent of the person’s Substitute Decision Maker (“SDM”) must be obtained.

[10] Section 16(1.1) allows a Justice of the Peace to order an assessment where criteria mirroring those set out in s. 15(1.1) are met.

[11] Section 20(1.1) expands the grounds for involuntary admission to a psychiatric facility if the physician, having examined the person, is of the opinion that criteria mirroring those set out in s. 15(1.1) are met, provided the person is incapable of consenting to treatment, the consent of the person’s SDM has been obtained, and the person is not suitable as an informal or involuntary patient. The Act provides that an involuntarily admitted person is entitled to be notified (i) of his or her right to ask the Consent and Capacity Board (“CCB”) to review the matter and (ii) that he or she has the right to counsel and advice from a rights adviser.

[12] Prior to the enactment of Brian’s Law, there was no provision for any alternate and less restrictive form of compulsory treatment for individuals who met the criteria for involuntary committal. The second innovation in Brian’s Law was to introduce CTOs. The purpose of a CTO, as described in s. 33.1(3), is to provide a person suffering from serious mental disorder with a comprehensive plan of treatment in the community and in a less restrictive setting than detention in a mental health facility. CTOs are intended to remedy the “revolving door” problem of individuals who are admitted for treatment, improve with treatment, but upon release stop treatment, care or supervision, relapse and are then re-admitted as involuntary patients.

[13] Section 33.1(4) sets out the criteria for a CTO:

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that:

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

[14] The patient or his or her SDM must consent to the CTO and undertake to comply with the CTO. If the patient fails to comply, the physician may issue an order for the patient to be brought in by the police for examination. To do so, the physician must have reasonable cause to believe that the patient continues to meet the criteria for a CTO and that reasonable steps have been taken to find the patient and inform him or her of the possible consequences of non-compliance. A CTO lasts for six months and may be renewed on notice to the patient. The legislation provides for legal advice to be given to the subject of a CTO before the order is made or renewed.

[35] In the result, the Court upheld the constitutionality of the “Box B” criteria for involuntary assessment and admission in Thompson.

[36] The fact of prior judgments of this Court or appellate courts in this area is not in and of itself determinative that this application has no reasonable prospect of success. As the Supreme Court held in Carter v. Canada (Attorney General) 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44, there are exceptions to the stare decisis doctrine:

The doctrine that lower courts must follow the decision of higher courts is fundamental to our legal system. It provides certainty while permitting the orderly development of the law in incremental steps. However, stare decisis is not a straitjacket that condemns the law to stasis. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42).

[37] In this case, to demonstrate that a “new legal issue” is raised, Zaugg points to a United Nations (“U.N.”) report entitled, “Mental Health and Human Rights: Report of the United Nations High Commissioner for Human Rights” (January 31, 2017), received pursuant to Resolution 32/18 of the U.N. Human Rights Council. The summary of the Report states:

The present report, mandated by the Human Rights Council in resolution 32/18, identifies some of the major challenges faced by users of mental health services, persons with mental health conditions and persons with psychosocial disabilities. These include stigma and discrimination, violations of economic, social and other rights and the denial of autonomy and legal capacity.

In the report, the High Commissioner recommends a number of policy shifts, which would support the full realization of the human rights of those populations, such as the systematic inclusion of human rights in policy and the recognition of the individual’s autonomy, agency and dignity. Such changes cover measures to improve the quality of mental health service delivery, to put an end to involuntary treatment and institutionalization and to create a legal and policy environment that is conducive to the realization of the human rights of persons with mental health conditions and psychosocial disabilities.

[38] This report no doubt may serve as a catalyst for policy debates among U.N. member states, including Canada, but I am unable to find on this basis that the legal parameters have shifted. The Report has not yet led to new U.N. treaties, conventions or other agreements, to which Canada is a signatory, and has not led to amendments or revisions to domestic legislation which would give rise to a change to the legal landscape in Ontario.

[39] I find on the bases of these precedents, and the absence of an intervening change in the law or substantially different facts, that the challenges to the involuntary admission provisions of the MHA under ss. 7 - 12 of the Charter in this application have no reasonable prospect of success.

[40] While there does not appear to be earlier consideration of the involuntary admission provisions in the specific freedom of expression, freedom of religion, and freedom of conscience context advanced by Zaugg in this application, the source of the alleged violation of Zaugg’s s. 2 (a), (b), and (c) rights is not the legislation per se, but rather discretionary decisions taken under the authority of the legislation by specific physicians, police officers, and psychiatric institutions.

[41] With respect to the challenge to the involuntary admission provisions under s. 15(1) of the Charter, Zaugg has not alleged how these provisions give rise to substantive discrimination. Further, the Court of Appeal in Thompson (at para. 66) found the involuntary admission scheme, because it involved an individualized assessment process, as “the antithesis of discrimination on the ground of presumed group or personal characteristics.” As a result, I find the challenge to the involuntary admission provisions under s. 15 of the Charter in this application has no reasonable prospect of success.

The Application’s Challenge to the Ancillary Provisions of the MHA

[42] With respect to Zaugg’s challenge to sections 26, 53, and 54 of the MHA, Ontario argues that Zaugg has failed to include material facts in his pleadings which could, if proven, constitute violations of the Charter.

[43] I agree. Zaugg does not detail specific alleged violations of the ancillary provisions.

[44] With respect to s. 26, Zaugg does not specify an incident where communications to or from him after an involuntary assessment or admission were withheld, or any other connection between this provision and a breach of his Charter rights.

[45] With respect to s. 53, Zaugg does not specify an occasion where the documentation of chemical restraints in relation to one or more of his encounters with physicians or psychiatric facilities violated his Charter rights.

[46] With respect to s. 54, Zaugg does not specify a time when he was found unable to manage property, or how this provision, or the manner in which this provision was applied, breached his Charter rights.

[47] Reading the application as a whole, and generously, Zaugg’s challenge to the ancillary provisions appears to be based on the allegation that they further impair the Charter rights of people whose Charter rights already have been infringed through the involuntary admission provisions.

[48] Read either on their own, or as part of a challenge to the overall legislative scheme by which people may be involuntarily assessed or admitted to psychiatric facilities, or physically or chemically restrained, Zaugg’s challenge to the ancillary provisions has no reasonable prospect of success in light of the absence of pleading specific facts which establish how these provisions breached his Charter rights.

Conclusion

[49] Zaugg’s application is based on the premise that Ontario ultimately is responsible under the Charter for the actions of psychiatric facilities, physicians and police officers taken under the authority of the MHA. In relation to the actions of Ontario, in his statement of material facts, Zaugg states (at paras. 22-23):

As chief law officer, the Attorney General has a special responsibility to be the guardian of that most elusive concept – the rule of law. It is the rule of law that protects individuals, and society as a whole, from arbitrary measures and safeguards personal liberties. With respect to the Ontario Mental Health Act the Attorneys [sic] General has failed to safeguard personal liberties as set forth in the Canadian Charter of Rights and Freedoms.

The Attorney General has a further role to play as part of whatever Cabinet Committee is formed to review legislation and regulations. The Attorneys [sic] General has failed to do so with regards to the Ontario Mental Health Act.

[50] This premise, however, is not consistent with the case law under the Charter. Courts have held that state institutions and those acting under public authority are to be held accountable in their own right under section 32 of the Charter, as respondents distinct from the Government (see e.g. Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, 151 D.L.R. (4th) 577, at paras. 29-30; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at paras. 125-139).

[51] The actions of those individuals and institutions, as alleged by Zaugg, may give rise to breaches of his Charter rights, but to determine whether breaches arise in such circumstances, his application must name those parties and indicate the remedies sought against those parties. This, his application does not do.

[52] Ontario also argues that damages are not an appropriate remedy on this application. Where laws are impugned as violating the Charter, the appropriate remedy will be a declaration of invalidity under s. 52(1) of the Constitution Act, 1982. Only where it can be shown a government acted in bad faith or abused its power will damages under s. 24(1) of the Charter be available. Zaugg has not pleaded material facts which establish that the involuntary admission provisions or other impugned sections of the MHA were enacted in bad faith or as an abuse of power. I find that an award of Charter damages as against Ontario, in these circumstances, has no reasonable prospect of success.

[53] For these reasons, assuming all the allegations in Zaugg’s notice of application and statement of material facts are taken as proven, pleadings which allege that the Government of Ontario is responsible for Charter breaches arising from the independent clinical decisions taken by physicians, and institutional decisions taken by psychiatric facilities under the MHA, has no reasonable prospect of success. Further, pleadings which allege Ontario is responsible for failing to safeguard the “personal liberties” of those subject to the involuntary admission provisions of the MHA, also has no reasonable prospect of success.

[54] I find that Ontario has met the test under Rule 21.01(1)(b) and its motion to strike this application in its entirety is granted.

[55] In the circumstances of this case, costs are not appropriate.

Sossin J.

Released: April 26, 2019