DATE: 20060901
DOCKET: C42091
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., FELDMAN and CRONK JJ.A.
B E T W E E N :
PAUL WESLEY RHORA and DARRELL RHORA, a minor, JOHN RHORA, a minor, and SHANNON RHORA, a minor, by their-Litigation Guardian, JOHN DOUGLAS THOMAN
Kikélola Roach and Shartal Levinthal for the appellants
Appellants/Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, VICTOR VILLENEUVE, ROBERT MIDDAUGH, of the Hamilton-Wentworth Regional Police Department and the REGIONAL MUNICIPALITY OF HAMILTON- WENTWORTH POLICE SERVICES BOARD
James W. Smith for the respondents Her Majesty the Queen and Victor Villeneuve
Simon R. Gencher for the respondents Robert Middaugh, Chief of Hamilton-Wentworth Regional Police Department, and the Regional Municipality of Hamilton-Wentworth Police Services Board
Defendants/Respondents
Heard: February 27, 2006
On appeal from the judgment of Justice C. Raymond Harris of the Superior Court of Justice dated June 4, 2004, reported at [2004] O.J. No. 3087.
FELDMAN J.A.:
BACKGROUND
[1] The circumstances that gave rise to this case were most unfortunate. The appellant, Paul Wesley Rhora, was diagnosed with bipolar disorder in 1982 or 1983 and put on a lithium regimen. At some point prior to the events that gave rise to this action in March and April 1991, he stopped taking his medication. On or about March 26, 1991, when the appellant was intoxicated, he hit his head in his apartment and fell unconscious. He attended the local hospital, was treated and released.
[2] On Easter Sunday, March 31, 1991, the appellant called the police and asked them to come and arrest him for growing marijuana. He said he was afraid that some people would take his plants and hurt or kill him. When the police arrived, they found the appellant armed with a knife and a pellet gun and with broken glass in his pockets; his room had been trashed and he reported that he had been taking heroin. The police charged him with possession of weapons and took him into custody. They noted that he was acting strangely, but that he was calm. Although they considered using s. 11 of the Mental Health Act, R.S.O. 1980, c. 262 (now R.S.O. 1990, c. M.7, s. 17) to take him to a hospital, they decided that by arresting him, any danger to him or others would be addressed.
[3] The appellant was kept at the police station for one night, then transferred the next morning to the detention centre for which the respondent, Mr. Villeneuve, was the Superintendent. While the appellant was in police custody, the police learned from his ex-wife that he suffered from a chemical imbalance of the brain and had been prescribed lithium. This information was not reported to the detention centre.
[4] While there, the detention centre did learn from relatives of the appellant that he had a six-year psychiatric history. Because of his strange behaviour in the centre, as well as his aggressive conduct during a visit from his brothers and the concerns expressed by them, the appellant was placed in the psychiatric unit, though not alone but in a cell with two other men. An appointment with a psychiatrist was made for the following day. Unfortunately, that night the appellant fought with the other two men, claiming that one of them, Mr. Taylor, had given him AIDS. As a result of the fight, Mr. Taylor died.
[5] The appellant was taken to hospital for his physical wounds and the next day saw the staff psychiatrist at the detention centre. No medication was prescribed. The next day the appellant injured himself as a result of banging his head against the wall in his cell. Yet it was not until the following day, when he again saw the psychiatrist, that psychometric medication was prescribed.
[6] The appellant was tried for the murder of his cell-mate and found not guilty by reason of mental disorder on June 25, 1991. He was held on a warrant of committal until September 1999, when he was released back into the community on a lithium regimen.
[7] The appellant and his family brought this action against the police and the detention centre for negligence by (1) failing to immediately apply s. 11 of the Mental Health Act and send him for a psychiatric assessment, and (2) failing to detect his psychiatric condition, send him for psychiatric assessment or administer psychometric drugs in a timely manner. They claim that it was as a consequence of that negligence that the appellant killed Mr. Taylor, resulting in his eight-year committal, and that he also suffered significant further head injury.
[8] The trial judge dismissed the action. He found that the police and the detention centre did not fall below the standard of care required of them in this case, and that, in any event, any damages that the appellant suffered were not foreseeable and were too remote. The trial judge also found no systemic negligence. Finally, the trial judge concluded that he was not satisfied that the appellant’s head injury that occurred while he was in custody caused his damage but that the damage probably occurred earlier when he struck his head and fell unconscious at home.
[9] Although he found no liability, the trial judge assessed the plaintiffs’ damages as follows: $50,000 general damages for diminution of quality of life; $252,750 for lost wages and $5,000 to each child in respect of Family Law Act, R.S.O. 1990, c. F.3 claims. The appellant appeals the findings that deny liability.
ISSUES RAISED BY THE APPELLANT
(1) Whether the trial judge erred by failing to find that the police knew that the appellant was mentally ill, needed psychiatric care and had the potential for violence against himself and others.
(2) Whether the trial judge erred by failing to find that the police were negligent because in all the circumstances they should have foreseen that failing to segregate the appellant could result in violence and that the failure to provide timely psychiatric intervention would lead to a deterioration in his mental state and further harm.
(3) Whether the trial judge erred in his interpretation of the proper application of s. 11 of the Mental Health Act and, in so doing, failed to find that the police were negligent when they declined to send the appellant, both at the time of the arrest and while in police custody, for a psychiatric assessment.
(4) Whether the trial judge erred by failing to find systemic negligence on the part of the respondents, which included disallowing part of the evidence of the appellant’s expert on the issue.
ANALYSIS
[10] In my view, on this record, this appeal cannot succeed for the following reasons.
[11] All four of the matters complained of by the appellant concern, to a greater or lesser extent, factual findings made by the trial judge. These findings, of course, attract considerable deference from this court. Absent palpable and overriding error, appellate interference with these findings is precluded.
[12] The challenge of the trial judge’s factual findings rests primarily on the assertion that the trial judge failed to consider evidence that, in the appellant’s view, was relevant to the determination of whether the respondents were negligent. There are two difficulties with this submission.
[13] This was a lengthy trial of approximately three weeks duration. The trial judge’s reasons are comprehensive, numbering 73 pages in total. They include a detailed description of the evidence concerning the events surrounding the appellant’s arrest, his subsequent transfer to the detention centre, his custody and treatment at that facility, his condition throughout, and the nature of the information concerning the appellant’s condition and mental status known to the respondents at the relevant times. The trial judge’s factual findings on these matters were available to him on the evidence. The appellant essentially invites this court to retry the case by re-weighing the evidence adduced at trial. That is not the function of this court.
[14] In addition, the fact that the trial judge failed to mention some of the evidence in his reasons does not establish that he failed to consider the omitted evidence in arriving at his decision that the appellant’s claims should be dismissed. Such omissions do not necessarily constitute reversible error. As stated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at 264, quoting from Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, “an omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence”. I am not persuaded that the appellant has met this test in this case.
[15] Even if I were persuaded that the trial judge erred in his conclusion that the respondents met the appropriate standard of care, the appellant’s case on appeal breaks down on the issue of causation. The trial judge acknowledged that it would have been preferable had the police communicated to the detention centre the information that they had obtained about the appellant’s mental illness. However, he concluded that any failure of communication by the police was not the proximate cause of the killing or of any further injury to the appellant and that any damages the appellant suffered were too remote. In my view, the trial judge made no palpable or overriding error in so concluding and there is no basis for this court to interfere with those findings.
[16] A similar analysis applies with respect to any deficiencies in the timeliness with which the detention centre administered psychometric medication to the appellant. In fact, although the appellant saw a psychiatrist following the killing, no psychometric medication was prescribed for him until a few days later, following his head-banging behaviour. To the extent that the detention centre should have responded earlier to the behaviour of the appellant and the information from his family by obtaining a psychiatric consultation sooner than it did, any such deficiency was not the proximate cause of the tragic events that occurred.
[17] The appellant also contends that the trial judge erred in law in his interpretation of s. 11 of the Mental Health Act by finding that in deciding what was “normal” in applying the section, the police should take into account factors relating to the nature of the appellant’s neighbourhood and its residents. The section, as it read at the time, stated:
s. 11. Where a constable or other peace officer observes a person who acts in a manner that in a normal person would be disorderly 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;
(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
(c) has shown or is showing a lack of competence to care for himself,
and in addition the constable or other peace 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) imminent and serious physical impairment of the person,
and that it would be dangerous to proceed under s. 10 [bringing information on oath before a justice of the peace for an order for assessment by a physician], the constable or other peace officer may take the person in custody to an appropriate place for assessment by a physician.[^1]
[18] I agree with the appellant that s. 11 of the Mental Health Act is not concerned with the place of residence of the person said to be in need of assistance and it was an error for the trial judge to state that the police in this case were to compare the appellant’s behaviour to what could be normal for someone living in one of Hamilton’s toughest neighbourhoods and who had some involvement with drugs. This type of analysis could well result in a hands-off approach by the police to people who may be in dire need of psychiatric help. This would further disadvantage those who are already living on the fringes of society. On the other hand, the police were entitled to consider the fact that the appellant told them he had been taking heroin when they assessed whether his behaviour was “disorderly” as compared to a “normal” person, in the context of s. 11.
[19] In spite of the legal error, it was apparent that while the police officers who responded to the appellant’s call did consider him to be acting very strangely, they
determined that he did not meet the other criteria of s. 11 and, on that basis, decided not to seek an assessment. The fact that the appellant had admittedly taken heroin would certainly affect his judgment and perceptions. He was also calm and compliant with the officers. In my view, it cannot be said on this record that the officers erred in their decision, setting aside the effect of any reference to the character of the neighbourhood as part of their assessment.
[20] The trial judge properly observed that police officers are not trained in the diagnosis of citizens “who may require specialized treatment outside of the Mental Health Act,” and that the Act “does not …require detailed ‘curb-side’ diagnoses by the police absent obvious, anomalous behaviour that is threatening to someone, including the person involved”. Obviously, police are not psychiatric professionals. That said, it is apparent from many aspects of this case, including the initial arrest of the appellant, that it would be helpful for the police to have more training in evaluating abnormal behaviour, so that they are able to make the best judgment possible to apply the criteria of the Act in the interests of the individual and of society.
[21] The trial judge also erred in law by stating that the police have no obligation to revisit a decision not to seek an assessment under s. 11 if they learn new relevant information, such as in this case, that the appellant suffered from a “chemical imbalance of the brain” and had been prescribed lithium. The trial judge quoted the following passage from the Hamilton-Wentworth Regional Police “Position and Procedure” manual with respect to “Mental Illness and Police Responsibility”, and concluded that that manual described the applicable standard of care for police officers:
[S]pecial care shall be afforded to prisoners who are suspected of or known to be, or to have previously been mentally ill, violent and/or suicidal, in order to ensure the safety and well being of the prisoner and all H.W.R.P. personnel.
[22] Clearly, the manual does not override a police officer’s statutory obligations under s. 11 of the Act. Although taking “special care” in such circumstances is an obvious good practice, it does not take the place of applying s. 11 and seeking a psychiatric assessment where the criteria in s. 11 are met. Again I refer to the need for appropriate training of police officers in this regard.
[23] Although the trial judge misconstrued the legal obligation on the police, he did not make a palpable and overriding error when he concluded on the evidence before him and based on the standards that existed at that time, that without other signs of violence in the appellant’s behaviour, the police were not negligent when they did not refer the appellant for an assessment after learning of his mental illness.
[24] Finally, the appellant contends that the trial judge erred in law in his consideration of the requisite elements of systemic negligence and in his application of the governing principles regarding systemic negligence to the facts of this case. The trial judge found that the detention centre personnel owed the appellant “a duty to take reasonable care to protect him from foreseeable risks”. He correctly referred to the following definition of systemic negligence from the Supreme Court of Canada decision in Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184 at para. 30: “the failure to have in place management and operations procedures that would reasonably have prevented the [tortious action]”. However, he then modified that test by adopting some language from the British Columbia Supreme Court decision in White v. Canada (A.G.) (2002), 2002 BCSC 1164, 4 B.C.L.R. (4th) 161 and concluded at para. 138 that: “To succeed in an action for ‘systemic’ negligence, then, the plaintiff must establish that the negligent actions of one or more of the defendants were directed towards a ‘general’ rather than a ‘specific’ set of circumstances.”
[25] I agree that the effect of this language on the proper articulation of the test is confusing. But the trial judge made no error when he considered the question of systemic negligence because he applied the Rumley test. He approved of the policies and procedures in place in the detention centre and contained in the manual that was used and followed by the relevant personnel in this case.
[26] Therefore, although the trial judge erred in his articulation of the requirements for systemic negligence, he did not make a palpable and overriding error of fact or err in law in his application of the test. He was entitled to conclude that the procedures in place at the detention centre at the time to identify and deal with potentially dangerous or mentally unstable persons were reasonably adequate to prevent what occurred. I note that in arriving at his decision, the trial judge was not assisted by any expert evidence. He prevented the appellant’s psychiatrist expert witness from testifying on issues regarding procedures in a police or prison setting because the expert had no experience in such a setting. That was a ruling made within the trial judge’s discretion. The respondents called no expert evidence to assist the trial judge on these issues.
[27] The appellant points out that the evidence disclosed that most of the procedures in place in the detention centre were focused on documenting information and events or reacting to events as they occurred rather than on taking steps to prevent violent incidents once a potential mental illness issue was identified.
[28] I agree that the record and events of this case have disclosed potential deficiencies in the police and detention centre procedures in place at the time for identifying and addressing the potential problems posed by a prisoner’s mental illness before a violent incident occurs. The evidence was that normally correctional staff would engage medical personnel for the psychiatric treatment of a detainee only after a violent episode had occurred. With the lens of hindsight, steps could have been taken (both by the police and by the detention centre staff) that may have prevented the tragic sequence of events that occurred in this case, such as sending the appellant for an early assessment, or keeping him fully segregated until his condition was fully understood and addressed. I earlier raised the desirability of specialized training for officers to assist them in dealing as effectively as possible with such prisoners.
[29] In the end, for the reasons discussed above, I find no error by the trial judge that would allow this court to set aside his findings that (1) the respondents did not breach their duties of care; and (2) in any event, the damages the appellant suffered were not caused by the action or inaction of the respondents.
CONCLUSION
[30] I would dismiss the appeal, but in the circumstances, without costs.
RELEASED: “SEP 01 2006” “RRM”
“K. Feldman J.A.”
“I agree R.R. McMurtry C.J.O.”
“I agree E.A. Cronk J.A.”
[^1]: Replaced by s. 17 of the Mental Health Act, R.S.O. 1990, c. M.7., s. 17, which provides:
- 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.