Her Majesty the Queen in Right of Ontario v. Phaneuf [Indexed as: Ontario v. Phaneuf]

104 O.R. (3d) 392

2010 ONCA 901

Court of Appeal for Ontario,

Doherty, R.P. Armstrong and MacFarland JJ.A.

December 24, 2010

Criminal law -- Mental disorder -- Assessment -- Plaintiff ordered assessed at psychiatric facility pursuant to s. 672.11 of Criminal Code and detained in hospital or detention centre during term of assessment order -- Plaintiff bringing proposed class action claiming that her rights under ss. 7 and 9 of Charter were infringed and that Ontario breached its fiduciary obligation to her when she was not transferred immediately from detention centre to hospital -- Claim disclosing no cause of action -- Code not requiring that accused persons who are ordered assessed in custody in hospital must be taken immediately to [page393] hospital -- Mere fact that plaintiff was detained in detention centre under lawful order pending transfer to hospital not giving rise to claim under s. 7 or s. 9 of Charter -- Crown not having fiduciary duty to plaintiff to act in her best interests in these circumstances -- Canadian Charter of Rights and Freedoms, ss. 7, 9 -- Criminal Code, R.S.C. 1985, c. C-46, s. 672.11.

The plaintiff was ordered assessed at a psychiatric facility pursuant to s. 672.11 of the Criminal Code and held in custody in that hospital or a detention centre during the term of the assessment order. Her transfer to the psychiatric facility from the detention centre where she was being held was delayed, but the assessment was completed within the 30-day time period set out in the assessment order. The plaintiff brought a proposed class action alleging that her rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms were violated when she was detained in a jail pending the availability of a bed in the psychiatric facility, that Ontario breached its fiduciary duty to her by detaining her in jail rather than in a hospital and that the Crown was negligent in failing to comply with an order issued in R. v. Hussein requiring the Ontario government to have sufficient hospital beds available at all times to permit the immediate transfer to the hospital for assessment of all persons ordered assessed in custody and in the hospital under s. 672.11. The action was certified as a class proceeding. The Crown's appeal from that order was granted and the action was dismissed on the basis that it did not disclose a cause of action. The plaintiff appealed.

Held, the appeal should be dismissed.

It was plain and obvious that the relevant provisions of the Criminal Code cannot be interpreted as requiring that accused persons who are ordered assessed in custody in a hospital must be taken immediately to that hospital and cannot be detained in a detention centre pending transfer to the hospital. The determination that the plaintiff was held in custody pursuant to lawful court orders made under a statutory power, the constitutionality of which was challenged, doomed her arguments that her incarceration in a detention centre violated s. 7 and/ or s. 9 of the Charter. The plaintiff's claim based on an alleged breach of fiduciary duty by the Crown was also doomed to failure. The Crown was obliged to implement the court orders in accordance with their terms and in a manner consistent with the relevant provisions of the Code. In doing so, its obligation was to act in the public interest. That obligation could not co-exist with a fiduciary obligation to the plaintiff to act in her best interests. The Crown was not negligent in failing to comply with Hussein. No order was ever taken out in that case. Reasons for judgment are not a judicial order.

APPEAL from the order of the Divisional Court, [2009] O.J. No. 5618 (Div. Ct.) dismissing the plaintiff's claim.

Cases referred toPhaneuf v. Ontario, 2007 CanLII 38426 (ON SC), [2007] O.J. No. 3526, 48 C.P.C. (6th) 33, 285 D.L.R. (4th) 727, 2007 CarswellOnt 5881 (S.C.J.); R. v. Hussein, 2004 CanLII 36057 (ON SC), [2004] O.J. No. 4594, [2004] O.T.C. 996, 191 C.C.C. (3d) 113, 26 C.R. (6th) 368, 123 C.R.R. (2d) 360, 65 W.C.B. (2d) 660 (S.C.J.); R. v. Rosete, [2006] O.J. No. 1608, 2006 ONCJ 141, 69 W.C.B. (2d) 383, consd Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 9, 24(1) Class Proceedings Act, 1992, S.O. 1992, c. 6 [as am.] Criminal Code, R.S.C. 1985, c. C-46, Part XX.1 [as am.], ss. 672.1 [as am.], 672.11 [as am.], 672.13 [as am.], 672.14 [as am.], 672.15 [as am.], 672.16 [as am.], (1)(b), (c), 672.17 [as am.] [page394]

Joseph Obagi and Elizabeth Quigley, for plaintiff (appellant). Elaine Atkinson and Lise Favreau, for defendant (respondent). Louis Sokolov and Ryan Clements, for intervenor CLA.

BY THE COURT: -- @7 I

[1] This is an appeal brought with leave from the order of the Divisional Court dismissing the appellant's claim on the basis that it did not disclose a cause of action. The Divisional Court's reasons are reported at [2009] O.J. No. 5618 (Div. Ct.).

[2] The Divisional Court had allowed an appeal brought with leave from the order of Charbonneau J. (the motion judge) certifying the action as a class action under the Class Proceedings Act, 1992, S.O. 1992, c. 6 and directing that the appellant be the representative plaintiff. The reasons of Charbonneau J. are reported at 2007 CanLII 38426 (ON SC), [2007] O.J. No. 3526, 48 C.P.C. (6th) 33 (S.C.J.).

[3] At the end of counsel for the appellant's oral submissions, the court indicated that the appeal would be dismissed with reasons to follow. Those reasons are set out below. @7 II

[4] The appellant was arrested on November 1, 2005. On November 2, 2005, a justice of the Ontario Court of Justice ordered the appellant assessed pursuant to s. 672.11 [of the Criminal Code, R.S.C. 1985, c. C-46]. He directed that the assessment take place at the psychiatric facility in Ottawa and that the appellant be held in custody in that hospital or a detention centre during the term of the assessment order. The appellant was held in custody in the detention centre until November 17, when a hospital bed became available and she was transferred to the hospital for the psychiatric assessment. The transfer was delayed in part because the appellant wanted to be assessed by a French-speaking psychiatrist. The assessment was completed within the 30-day time period set out in the assessment order of November 2.

[5] The appellant brings this action on her own behalf and on behalf of other persons also ordered assessed pursuant to s. 672.11 and detained in a jail pending the availability of a bed in the hospital where the assessment was to be conducted. [page395]

[6] The details of the factual background and the pleadings are set out in the reasons of Charbonneau J. and the reasons of the Divisional Court. We do not propose to repeat them.

[7] Counsel for the appellant submits that the statement of claim reveals three viable claims. He submits that the appellant's rights under s. 7 and s. 9 of the Canadian Charter of Rights and Freedoms were violated when she was detained in a jail pending the availability of a bed in the hospital where the assessment under s. 672.11 of the Criminal Code was to be conducted. Counsel submits that these Charter violations give rise to a damage remedy under s. 24(1) of the Charter.

[8] Counsel further submits that the detention in the jail rather than in a hospital is a breach of the fiduciary duty owed by Ontario to the appellant. Counsel submits that the appellant, by virtue of her mental condition, was a particularly vulnerable person and as she was under the control of the respondent while in custody, the respondent owed her a fiduciary duty.

[9] Finally, counsel submits that the Crown was negligent in failing to comply with the order of Justice Desmarais issued in R. v. Hussein, 2004 CanLII 36057 (ON SC), [2004] O.J. No. 4594, [2004] O.T.C. 996 (S.C.J.) in November 2004. Counsel submits that in Hussein, Desmarais J. ordered the Ontario government to have sufficient hospital beds available at all times to permit the immediate transfer to the hospital for assessment of all persons ordered assessed in custody and in the hospital under s. 672.11.

[10] There were other claims set out in the statement of claim that did not survive the initial motion before Charbonneau J. The appellant no longer advances those claims.

[11] In oral argument, counsel acknowledged that each of the claims now being advanced depends on the existence of a duty on the Crown to place the appellant in the hospital where her assessment was to be performed immediately rather than to detain her in a jail pending the availability of a bed at the hospital. Counsel submits that this duty can be found by implication in the language of the relevant sections of the Criminal Code, or as an expression of the Crown's fiduciary duty owed to the appellant, or as a manifestation of the Crown's obligation to implement the judicial order made by Desmarais J. Counsel emphasizes that this is not the time or place to decide the merits of any of these claims and that he need only show that it is not "plain and obvious" that the claims cannot succeed.

[12] Counsel also submits that this action does not target the conduct of those Crown servants who implemented the specific orders made in respect of the appellant's assessment, but is aimed at those unnamed Crown officials whose funding decisions have [page396] left the persons responsible for the implementation of assessment orders made under s. 672.11 incapable of fulfilling their obligations under the Criminal Code.

[13] Underfunding is not a cause of action. Before the claim can proceed, the appellant must have an arguable personal cause of action against identifiable defendants. Funding or institutional shortcomings in the procedures in place for enforcing assessment orders do not in their own right provide the basis for a lawsuit. @7 III The Criminal Code Provisions

[14] Assessment orders made under s. 672.11 are governed by Part XX.I. Section 672.13 sets out the contents of an assessment order. The assessment order must indicate the person to conduct the assessment or the hospital where the assessment is to be conducted. The order must also state whether the person is to be held in custody while the assessment order is in force. By operation of the definition of hospital in s. 672.1, a person can be in custody while in one of the appropriately designated hospitals.

[15] There is nothing in s. 672.13 limiting custody to custody in a hospital. Nor does the form provided for assessment orders contain any such limitation. The orders in this case provided for the appellant's custody in the designated hospital or the named detention centre.

[16] Assessment orders are time limited. Generally speaking, they are in force for no more than 30 days. In addition, a person must be returned to the court forthwith after the assessment is completed: Criminal Code, ss. 672.14, 672.15 and 672.17. Taken together, the sections clearly indicate Parliament's intention that assessments ordered under s. 672.11 should be completed with dispatch.

[17] Section 672.16 speaks directly to the question of custody during the tenure of an assessment order. Nothing in the section limits either the normal meaning of the word "custody" or the place where an accused may be held in custody. As is evident from the grounds upon which persons can be held in custody, custody may be warranted for reasons other than the need to place the person in custody for the purposes of the assessment. The observation in R. v. Rosete, [2006] O.J. No. 1608, 2006 ONCJ 141, at para. 9, that custody during the currency of the assessment order can only be justified for the purpose of effecting the assessment is inconsistent with the language of s. 672.16 and is, with respect, in error. Section 672.16(1)(b) and (c) [page397] expressly contemplate that custody can be justified during the assessment period on grounds that are unrelated to the carrying out of the assessment itself.

[18] Section 672.16 does not limit custody to the hospital where the assessment occurs. It speaks to custody during the time period that the assessment order is in effect. Accused persons who are assessed will not necessarily be confined in the hospital for that entire period of the assessment order. Practically speaking, there will inevitably be some time needed to move the accused from a detention centre to the hospital. In addition, there will often be some time after the assessment is completed, but before the person is returned to court where detention in the hospital would be unnecessary and perhaps inappropriate. Consequently, orders made under s. 672.11 will almost inevitably provide for detention in the designated hospital and a detention centre. There is, however, nothing to prevent a judge in a specific case where it is reasonable to do so to make an order that an accused be taken directly to the hospital. Judges can also order detention in a specific place pending transfer to the hospital in an appropriate case. The Criminal Code provides ample flexibility to allow judges to fashion orders that are appropriate to the specific circumstances.

[19] We are satisfied that it is "plain and obvious" that the relevant provisions of the Criminal Code cannot be interpreted as requiring that accused who are ordered assessed in custody in a hospital must be taken immediately to that hospital and cannot be detained in a detention centre pending transfer to the hospital. To the extent that R. v. Rosete, supra, and Hussein are read as holding that the Criminal Code requires immediate transfer to a hospital, those cases are wrongly decided.

[20] Our interpretation of the relevant provisions of the Criminal Code is consistent with the interpretation given by the motion judge and the Divisional Court. Notwithstanding that the motion judge certified the action as a class proceeding, he concluded that the orders under which the appellant was held in custody in the detention centre were lawful orders made pursuant to the relevant provisions of the Criminal Code. In finding the orders to be lawful, the motion judge, of necessity, rejected the appellant's interpretation of the relevant Criminal Code provisions. While counsel for the appellant purported to accept the finding of the motion judge that the detention was lawful, his argument with respect to the proper interpretation of the Criminal Code indirectly attacks that finding. For the reasons set out above, we agree with the motion judge and the Divisional [page398] Court that the appellant's detention in the detention centre was lawful.

[21] The determination that the appellant was held in custody pursuant to lawful court orders made under a statutory power, the constitutionality of which is unchallenged, dooms the appellant's arguments that her incarceration in a detention centre violated s. 7 and/or s. 9 of the Charter. That is not to say that, in a given case, the specific circumstances of an accused's incarceration pending assessment could not give rise to a Charter claim. In our view, however, it is plain and obvious that the mere fact that the appellant was detained in the detention centre under lawful orders pending transfer to a hospital cannot give rise to a Charter claim under s. 7 or s. 9. The Fiduciary Duty Claim

[22] This claim cannot possibly succeed. The Crown's duties to the appellant and to the public are circumscribed by the terms of the orders made in respect of the appellant's custody and the relevant provisions of the Criminal Code. The Crown was obliged to implement the court orders in accordance with their terms and in a manner consistent with the relevant provisions of the Criminal Code. In doing so, its obligation was to act in the public interest. That obligation could not possibly co- exist with a fiduciary obligation to the appellant to act in her best interests to the point of disregarding or compromising the Crown's obligation to act within the terms of the court orders and the provisions of the Criminal Code. The Failure to Implement a Judicial Order

[23] Counsel for the appellant refers to the reasons of Desmarais J. in R. v. Hussein and submits that they constitute an order requiring the Crown to have available adequate resources to permit the immediate transfer to custody in a hospital of all persons ordered assessed in a hospital. There are passages in the reasons in Hussein that might bear that reading. Other passages suggest a much narrower determination by Desmarais J.

[24] The fundamental problem with this claim, however, is that there is no order in Hussein. No order was ever taken out. Reasons for judgment are not a judicial order. One cannot extract a meaning from a part of the reasons for judgment and declare it to be a judicial order binding on the Crown. It is particularly inappropriate to equate to parts of reasons for judgment with a "judicial order" where the meaning to be taken from the reasons as a whole is unclear, and the meaning relied on as constituting the "judicial order" is not found expressly in the [page399] reasons, but is a matter of inference from some of the language used in the reasons.

[25] The difficulty with the appellant's argument where there is no actual order in existence is evident in the appellant's pleadings. In para. 12 of her claim, she describes the order allegedly made by Desmarais J. as requiring the Ontario government:

To ensure that there are a sufficient number of secure beds available in Ontario to comply with the provisions of the Criminal Code.

[26] A judicial order in the terms described above would not assist the appellant in establishing an arguable cause of action. On our interpretation of the relevant provisions of the Criminal Code, the appellant has not pled any facts that could support the claim that her detention was contrary to the provisions of the Criminal Code, much less that it was contrary to the Criminal Code because there were insufficient resources available to make compliance with the Code possible. @7 IV

[27] The claim was properly struck as failing to disclose a cause of action. As indicated at the conclusion of oral argument, the appeal is dismissed without costs. @7 V

Postscript

[28] These reasons should not be taken as condoning the warehousing in detention centres of persons who are apparently mentally ill and have been ordered assessed in a hospital. There can be no doubt that the incarceration of mentally ill persons in a jail setting risks further deterioration of their mental state and potentially places them at real risk of physical harm.

[29] Judges in the Ontario Court of Justice must regularly deal with the difficult problem of accommodating persons in need of in-custody hospital assessments. As the facts of this case demonstrate, those judges are acutely aware that the available resources will not always match the immediate needs of those requiring in-custody hospital assessments. Judges routinely make inquiries as to the availability of bed space before making assessment orders and do their best to minimize the time that an accused must wait in a detention centre for a hospital bed. In doing so, judges must bear in mind the terms of s. 672.16. If detention of the accused is justified only for the purpose of assessment and a bed is not readily available, the accused should not be ordered held in custody. In that circumstance, a [page400] judge can order the accused released on bail and defer the making of an assessment order until a bed is available. The judge can also make it clear to the Crown that if an in-custody assessment in the hospital is necessary, there will be no assessment ordered until a bed is available and the case will not proceed without that assessment. The Crown, of course, has the constitutional obligation to bring accused to trial within a reasonable time.

[30] Much more often, judges of the Ontario Court of Justice are faced with the situation where the accused's detention is justified on public safety grounds as well as on assessment grounds. In that situation, releasing the accused is not an option. If a judge is told that there will be some delay in making a bed available, the judge will be required to make an order that contemplates incarceration of the accused in a detention centre before he is transferred to the hospital. In those circumstances, the judge may inquire into the location of the proposed detention and the circumstances of that detention. The judge can, where appropriate, make specific orders with respect to the place and circumstances of incarceration. The judge can also monitor the availability of space in the hospital by requiring, as was done in this case, that the accused be brought back within a few days of the initial order for a "bed check". There may also come a point where an order directing transfer to the hospital is an appropriate exercise of the judge's discretion.

[31] The process described above is far from perfect. It is, however, consistent with the provisions of the Criminal Code and responsive to the reality faced by judges who are asked to make in-custody hospital assessment orders when available resources cannot immediately accommodate those orders.

[32] Finally, nothing in these reasons should be taken as excluding the possibility of a claim based on a detention that is not consistent with the terms of the applicable judicial order, or reflects an inordinate and unreasonable delay in placing an accused into a hospital setting for assessment, or is based on allegations relating to the specific conditions in which a mentally ill accused was detained pending transfer to the hospital.

Appeal dismissed.