Gligorevic v. McMaster, 2012 ONCA 115

Gligorevic v. McMaster; McCullough, Intervenor [Indexed as: Gligorevic v. McMaster]

109 O.R. (3d) 321

2012 ONCA 115

Court of Appeal for Ontario,

Laskin, Cronk and Blair JJ.A.

February 21, 2012

Administrative law -- Boards and tribunals -- Consent and Capacity Board -- Counsel -- Patient seeking adjournment of 11 days so his Serbian-speaking counsel could be present -- Board accepting doctor's position that decision regarding treatment required as quickly as possible -- Board adjourning for five days and appointing non-Serbian-speaking counsel -- Patient meeting with appointed counsel and stating did not want appointed counsel to act and wishing representation by his own counsel -- Appointed counsel failing to tell Board of patient's instruction that not wishing her to act -- Hearing proceeding over accused's objections and finding of incapacity made -- Accused appealing to Superior Court arguing appointed counsel was ineffective -- Superior Court finding hearing fair but failing to consider whether appointed counsel had authority to act -- Claim of ineffective assistance of counsel being available on appeal from treatment capacity decision of Consent and Capacity Board -- Ineffective assistance argument may be framed as Charter violation or as cause of miscarriage of justice -- Court rejecting argument that Counsel's performance in proceedings before Board attracting lower and less deferential level of scrutiny than counsel's performance in criminal proceedings on basis that persons with mental health issues particularly vulnerable -- Appointed counsel having no authority to act given patient's clear instructions -- Board not aware of patient's instructions to appointed counsel and believing she was representing patient at hearing -- Miscarriage of justice resulting despite apparent reliability of finding by Board -- Had Board known of patient's instructions Board could have adjourned hearing, appointed amicus curiae or permitted self-representation -- Appeal allowed and new hearing ordered.

Professions -- Barristers and solicitors -- Serbian-speaking patient appearing before Consent and Capacity Board -- Patient seeking adjournment for 11 days to enable his Serbian-speaking counsel to be present -- Treating psychiatrist's counsel opposing adjournment based on concern that important treatment be commenced as quickly as possible -- Consent and Capacity Board granting brief adjournment and appointing non-Serbian- speaking counsel -- Appointed counsel failing to advise Board that patient advised her wished his Serbian counsel to act, and did not wish appointed counsel to act -- Patient indicating at hearing wished his own counsel to be present -- Hearing proceeding and Board finding patient incapable of consenting to treatment -- Patient's appeal to Superior Court based on alleged incompetence of appointed counsel dismissed -- Treatment capacity hearings involving patient's fundamental human rights and patients entitled to effective assistance of counsel -- Appointed counsel received unequivocal instructions from patient that did not want her to represent him -- Appointed counsel having no authority to act on patient's behalf and Board not aware of this due to counsel's failure to disclose patient's [page322] clear instructions -- Miscarriage of justice resulting even though hearing itself based on reliable evidence and no evidence reached wrong decision -- Had Board known appointed counsel not authorized to act for patient may have reconsidered adjournment decision to permit patient's Serbian-speaking counsel to be present, appointed amicus curiae or permitted patient to represent himself -- Appeal allowed and new hearing ordered.

The applicant was found not criminally responsible on account of mental disorder at his criminal trial on charges of breaking and entering and arson. After he refused antipsychotic medication for treatment of his schizophrenia, he was found incapable with respect to treatment. The applicant applied to the Consent and Capacity Board for review of that finding. He was a native Serbian speaker and listed Z, a Serbian-speaking lawyer, as his counsel. At the commencement of the Board hearing, the applicant sought an 11-day adjournment until Z would be available. The Board adjourned the hearing for five days and directed the Public Guardian and Trustee (the "PGT") to arrange legal representation for the applicant. Less than 24 hours before the scheduled resumption of the hearing, the PGT appointed a lawyer ("PGT counsel") to represent the applicant. PGT counsel did not speak or understand Serbian. When she met with the applicant, he told her that he did not need or want her services as he had his own lawyer. PGT counsel did not inform the Board that the applicant had declined her services and had provided no instructions concerning the conduct of the hearing. Her request for a further adjournment was denied. The Board confirmed the incapacity finding. The applicant appealed to the Superior Court of Justice, arguing that the assistance of counsel at the review hearing was ineffective. The appeal was dismissed. The applicant appealed.

Held, the appeal should be allowed.

An argument of ineffective assistance of counsel may be raised as a ground of appeal from a treatment capacity decision of the Consent and Capacity Board. The argument may be framed as a violation of s. 7 of the Canadian Charter of Rights and Freedoms or as the cause of a miscarriage of justice. Where a claim of ineffective assistance is raised, the appellant must demonstrate (1) where the claim is based on contested facts, the facts that underpin the claim; (2) the incompetence of the assistance provided; and (3) that the ineffective assistance caused a miscarriage of justice. There is no principled reason to adopt a lower, and less deferential, standard for the scrutiny of counsel's performance in proceedings before the Board than otherwise applies in the assessment of ineffective assistance claims.

PGT counsel's failure to inform the Board that the applicant had rejected her services caused the Board to proceed on a fundamental misapprehension of the facts regarding whether the applicant was represented by counsel at the hearing and resulted in a miscarriage of justice by depriving the applicant of the appearance of adjudicative fairness. PGT counsel's conduct was not reasonable in light of her appointment by the PGT pursuant to a Board order. In the face of the applicant's express and consistent rejection of representation by the PGT appointee, PGT counsel could not proceed to conduct the hearing. The effect of the Board order directing the PGT to appoint counsel was exhausted once PGT counsel was appointed and the applicant rejected her services. A new capacity hearing was required.

APPEAL from the judgment of Low J. of the Superior Court of Justice dated November 26, 2010 affirming the decision of the Consent and Capacity Board dated September 29, 2005.

Cases referred to R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 203 O.A.C. 56, 202 C.C.C. (3d) 60, 34 C.R. (6th) 271, 67 W.C.B. (2d) 790 (C.A.); R. v. B. (G.D.), [2000] 1 S.C.R. 520, [2000] S.C.J. No. 22, 2000 SCC 22, 184 D.L.R. (4th) 577, 253 N.R. 201, [2000] 8 W.W.R. 193, J.E. 2000-919, 81 Alta. L.R. (3d) 1, 261 A.R. 1, 143 C.C.C. (3d) 289, 32 C.R. (5th) 207, 45 W.C.B. (2d) 567; [page323] R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883, 85 O.A.C. 186, 102 C.C.C. (3d) 35, 44 C.R. (4th) 364, 28 W.C.B. (2d) 471 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 347]; R. v. White (1997), 1997 CanLII 2426 (ON CA), 32 O.R. (3d) 722, [1997] O.J. No. 961, 99 O.A.C. 1, 114 C.C.C. (3d) 225, 43 C.R.R. (2d) 1, 34 W.C.B. (2d) 110 (C.A.), apld In re Mental Health of F. (K.G.), 2001 MT 140, 306 Mont. 1, 29 P.3d 485 (2001), distd Other cases referred to Cavalier v. Ramshaw, [2010] O.J. No. 4192, 2010 ONSC 5402; Country Pork Ltd. v. Ashfield (Township) (2002), 2002 CanLII 41578 (ON CA), 60 O.R. (3d) 529, [2002] O.J. No. 2975, 162 O.A.C. 223, 31 M.P.L.R. (3d) 1, 9 R.P.R. (4th) 182, 115 A.C.W.S. (3d) 883 (C.A.); Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; Fendelet v. Dohey, [2007] O.J. No. 2519, 2007 ONCA 475, 158 A.C.W.S. (3d) 626; FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007), 85 O.R. (3d) 561, [2007] O.J. No. 2297, 2007 ONCA 425, 46 C.P.C. (6th) 23, 158 A.C.W.S. (3d) 792; Giecewicz v. Hastings, [2007] O.J. No. 4969, 2007 ONCA 890, 162 A.C.W.S. (3d) 1037, 232 O.A.C. 39, 288 D.L.R. (4th) 587 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 97]; Gligorevic (Re), [2005] O.R.B.D. No. 2086 (Rev. Bd.); Gligorevic (Re), [2008] O.R.B.D. No. 101 (Rev. Bd.); Gligorevic (Re), [2011] O.R.B.D. No. 722 (Rev. Bd.); Hillier v. Milojevic, [2010] O.J. No. 159, 2010 ONSC 435; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; L. (H.) v. Canada (Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24, 2005 SCC 25, 251 D.L.R. (4th) 604, 333 N.R. 1, [2005] 8 W.W.R. 1, J.E. 2005-845, [2005] R.R.A. 275, 262 Sask. R. 1, 24 Admin. L.R. (4th) 1, 29 C.C.L.T. (3d) 1, 8 C.P.C. (6th) 199, 138 A.C.W.S. (3d) 852; Malette v. Shulman (1990), 1990 CanLII 6868 (ON CA), 72 O.R. (2d) 417, [1990] O.J. No. 450, 67 D.L.R. (4th) 321, 37 O.A.C. 281, 2 C.C.L.T. (2d) 1, 20 A.C.W.S. (3d) 301 (C.A.); Parast v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 844, 2006 FC 660, 153 A.C.W.S. (3d) 1210; R. v. B. (L.C.) (1996), 1996 CanLII 937 (ON CA), 27 O.R. (3d) 686, [1996] O.J. No. 283, 88 O.A.C. 81, 104 C.C.C. (3d) 353, 46 C.R. (4th) 368, 29 W.C.B. (2d) 492 (C.A.); R. v. DiPalma, 2002 CanLII 53217 (ON CA), [2002] O.J. No. 2684, [2005] 2 C.T.C. 132 (C.A.); R. v. Dunbar, [2003] B.C.J. No. 2767, 2003 BCCA 667, 191 B.C.A.C. 223; R. v. G. (D.M.) (2011), 105 O.R. (3d) 481, [2011] O.J. No. 1966, 2011 ONCA 343, 281 O.A.C. 85, 84 C.R. (6th) 420, 275 C.C.C. (3d) 295, 97 W.C.B. (2d) 151; R. v. Imona-Russel (2011), 104 O.R. (3d) 721, [2011] O.J. No. 1792, 2011 ONCA 303, 234 C.R.R. (2d) 157, 277 O.A.C. 264, 270 C.C.C. (3d) 256, 95 W.C.B. (2d) 124, 86 C.R. (6th) 407; R. v. LePage, 2006 CanLII 37775 (ON CA), [2006] O.J. No. 4486, 217 O.A.C. 82, 214 C.C.C. (3d) 105, 71 W.C.B. (2d) 748 (C.A.); R. v. Runnalls (2011), 106 O.R. (3d) 291, [2011] O.J. No. 2121, 2011 ONCA 364; Robles v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 520, 2003 FCT 374, 2 Admin. L.R. (4th) 315, 122 A.C.W.S. (3d) 19 (F.C.T.D.); Shirvan v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1864, 2005 FC 1509, 143 A.C.W.S. (3d) 1098; Starson v. Swayze, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, 2003 SCC 32, 225 D.L.R. (4th) 385, 304 N.R. 326, J.E. 2003-1132, 173 O.A.C. 210, 1 Admin. L.R. (4th) 1, 122 A.C.W.S. (3d) 938; Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal (2005), 2005 CanLII 24217 (ON CA), 76 O.R. (3d) 321, [2005] O.J. No. 2817, 200 O.A.C. 209, 36 Admin. L.R. (4th) 212, 141 A.C.W.S. (3d) 157 (C.A.) [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 428]; [page324] Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Teganya v. Canada (Minister of Citizenship and Immigration), [2011] F.C.J. No. 430, 2011 FC 336, 386 F.T.R. 160; W. (D.) v. White, 2004 CanLII 22543 (ON CA), [2004] O.J. No. 3441, 189 O.A.C. 256, 133 A.C.W.S. (3d) 217 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 486]; Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201, 44 B.L.R. (3d) 165, 132 A.C.W.S. (3d) 1046 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 11(d), 15(1) Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6(1)(b) [as am.], 134(1), (6) Criminal Code, R.S.C. 1985, c. C-46, ss. 650(3), 672.5(8) Good Government Act, 2009, S.O. 2009, c. 33, Sch. 18, s. 10(4) Health Care Consent Act, 1996, S.O. 1990, c. 2, Sch. A, ss. 4(1), (2), 10(1), 18(3), 32(1), 80(1), (10), 81(1) [as am.], (a) [as am.], (b) Authorities referred to Procedural Protocol Re Allegations of Incompetence of Trial Counsel in Criminal Cases

Zeljko Gligorevic, appearing in person. Mercedes Perez and Karen Steward, as amicus curiae. Janice E. Blackburn and Ioana Bala, for respondent. Heidi Rubin, for intervenor.

The judgment of the court was delivered by

CRONK J.: -- I. Introduction

[1] The appellant, Zeljko Gligorevic, was detained at the Centre for Addiction and Mental Health (the "Hospital") in Toronto by order of the Ontario Review Board (the "ORB") following a verdict of not criminally responsible on account of mental disorder ("NCR") at his criminal trial on charges of breaking and entering and arson. After Mr. Gligorevic refused antipsychotic medication recommended for treatment of his schizophrenia, a Hospital physician found him incapable with respect to treatment. At a subsequent review hearing, the Consent and Capacity Board (the "Board") confirmed this incapacity finding.

[2] Mr. Gligorevic appealed the Board's decision to the Superior Court of Justice. He argued that the assistance of counsel at the review hearing was ineffective, thereby causing a miscarriage of justice by denying him adjudicative fairness, by yielding a treatment incapacity ruling that was unreliable, and by [page325] violating his s. 7 and, in the alternative, s. 15(1) Canadian Charter of Rights and Freedoms rights. He also maintained that the Board erred in confirming that he was incapable by relying on a concession of incapacity by counsel appointed to represent him at the hearing. The Superior Court justice dismissed the appeal.

[3] Mr. Gligorevic further appeals. For the reasons that follow, I would allow the appeal.

II. Statutory Test for Treatment Capacity

[4] The issues on appeal arise in the context of a patient's legal right to determine his or her own medical treatment. In Ontario, by operation of s. 10(1) of the Health Care Consent Act, 1996, S.O. 1990, c. 2, Sch. A (the "Act"), a health practitioner is precluded from administering a proposed treatment to a patient, and is required to take reasonable steps to ensure that the treatment is not administered, unless consent to the treatment is first obtained (1) from the patient, where the patient is capable; or (2) from the patient's substitute decision-maker, where the patient is incapable.

[5] Section 4(1) of the Act establishes two criteria for capacity. To be "capable" with respect to treatment, a person must be able "to understand the information that is relevant to making a decision about the treatment" and "to appreciate the reasonably foreseeable consequences of a decision or lack of decision". Section 4(2) provides that a person is presumed to be capable with respect to treatment. This presumption of capacity is displaced only if one or both of the s. 4(1) criteria for capacity are not met.

[6] In Starson v. Swayze, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, 2003 SCC 32, at para. 78, Major J., writing for the majority, explained the two criteria for capacity in this fashion:

First, a person must be able to understand the information that is relevant to making a treatment decision. This requires the cognitive ability to process, retain and understand the relevant information . . . Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one. This requires the patient to be able to apply the relevant information to his or her circumstances, and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

[7] In this case, as I will discuss, the Board rested its incapacity finding on the appreciation criterion for capacity (the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision regarding treatment). In Starson, Major J. emphasized two points concerning this part of the statutory test for capacity. First, at para. 79, he confirmed that a patient need not agree with the diagnosis of his or her attending physician in order to be able to apply the information relevant to a [page326] treatment decision to his or her own circumstances. However, if it is established that the patient in fact has a mental "condition", the patient must be able "to recognize the possibility that he is affected by that condition".

[8] Second, Major J. explained, at para. 80, that while the Act requires a patient to have "the ability to appreciate the consequences of a [treatment] decision", it does not require "actual appreciation of those consequences" (emphasis in original). Thus, if the patient has an appreciation of the parameters of the treatment decision at issue (the nature and purpose of the proposed treatment, the foreseeable benefits and risks of treatment, the alternative courses of action available and the expected consequences of not having the treatment), he or she has the ability to appreciate the decision made, even if the patient disagrees with his or her physician's treatment recommendation.

[9] Against the backdrop of this statutory test for treatment capacity, I turn to the facts relevant to the disposition of this appeal.

III. Facts

[10] Mr. Gligorevic immigrated to Canada from Yugoslavia with his family in 1999. He is approximately 46 years old and Serbian is his native language. Although he has some skills in the English language, they appear to be limited.

[11] On arrival in Canada, Mr. Gligorevic worked at a variety of jobs. He had no criminal record and, apparently, no documented history of mental illness. In 2004, he was charged with breaking and entering and arson, underwent a pre-trial psychiatric assessment at the Hospital and was found fit to stand trial. On November 29, 2004, a verdict of NCR was entered in respect of both charges. [See Note 1 below]

[12] After a hearing, the ORB found that Mr. Gligorevic posed a significant threat to the safety of the public. It ordered him detained at the minimum secure unit of the Hospital and prohibited him from having any contact or communication with his wife, their children and the arson victim and his immediate family members. Mr. Gligorevic remained in detention at the Hospital at the time of the Board capacity hearing. [page327]

(1) Diagnosis and treatment

[13] At the Hospital, Mr. Gligorevic was initially diagnosed with delusional disorder, mixed type, with symptoms of grandiose, jealous and persecutory delusions. His diagnosis was later revised to schizophrenia, treatment with antipsychotic medication was prescribed and his transfer to a secure observation and treatment unit at the Hospital was ordered.

[14] Initially, Mr. Gligorevic consented to treatment with antipsychotic medication. Contemporaneous clinical observations of his progress indicated that while his overall functioning and behaviour improved with antipsychotic medication, his symptoms of ongoing psychosis, including delusions, continued. In June 2005, Mr. Gligorevic withdrew his consent, claiming that the medication was not helping him and that he was not suffering from a mental disorder.

[15] On August 16, 2005, a Hospital physician found Mr. Gligorevic incapable with respect to treatment with antipsychotic medication. Thereafter, the Hospital obtained substitute consent from Mr. Gligorevic's mother to administer the medication to Mr. Gligorevic.

[16] Mr. Gligorevic, who continued to oppose this form of treatment, applied under s. 32(1) of the Act for review of his incapacity finding by the Board. In his application, he listed Dragi Zekavica, a Serbian-speaking lawyer who had represented him before the ORB, as his counsel. The filing of this application precluded the administration of antipsychotic medication pending the final disposition of the application and any appeal therefrom, absent emergency circumstances: s. 18(3) of the Act.

(2) Appointment of counsel

[17] The Board capacity hearing commenced on Friday, September 23, 2005 in the presence of a Serbian translator and Mr. Gligorevic's treating psychiatrist, the respondent Dr. Jeffry McMaster. Mr. Gligorevic was self-represented.

[18] At the outset, Mr. Gligorevic told the Board that he had a lawyer (Mr. Zekavica) and that he wished him to be present at the hearing. The Board chair recognized "the need for counsel", describing it as "quite important", and indicated the Board's willingness to adjourn the hearing to the following week to permit Mr. Gligorevic's lawyer to be present.

[19] Dr. McMaster's counsel informed the Board of her understanding that Mr. Zekavica could be available on October 4, 2005 to conduct the review hearing. She also led evidence from a Hospital social worker to the effect that, contrary to the terms of his [page328] ORB disposition, Mr. Gligorevic had attempted to contact his "victims" by telephone "such that police have become involved yet again". She expressed the concern that "the longer that this matter is held over . . . the victims are at risk of further contact from [Mr. Gligorevic]" and submitted that an adjournment until October 4 was "too long". She requested, instead, that the Board appoint counsel for Mr. Gligorevic.

[20] The Board adjourned the hearing for five days, until Wednesday, September 28, 2005. Under the authority of s. 81(1) of the Act, it also directed the Public Guardian and Trustee (the "PGT") to arrange legal representation for Mr. Gligorevic so that the hearing could proceed on September 28, "with the Patient's counsel or the appointed counsel". As in force at the time of the hearing, s. 81(1) read as follows:

81(1) If a person who is or may be incapable with respect to a treatment . . . is a party to a proceeding before the Board and does not have legal representation, (a) the Board may direct the [PGT] or the Children's Lawyer to arrange for legal representation to be provided for the person; and (b) the person shall be deemed to have capacity to retain and instruct counsel. [See Note 2 below]

[21] On September 27, 2005, less than 24 hours before the scheduled resumption of the hearing, the PGT appointed a Toronto lawyer with experience in mental health proceedings to represent Mr. Gligorevic at the Board capacity hearing ("PGT counsel"). The PGT's directions to appointed counsel are of particular significance. I will return to the issue of these directions when I consider the Superior Court justice's assessment of Mr. Gligorevic's ineffective assistance claim.

[22] Following her appointment, PGT counsel promptly attended at the Hospital and met with Mr. Gligorevic. PGT counsel does not speak or understand Serbian and a Serbian-speaking translator was not present at the meeting. In her later evidence before the Superior Court, PGT counsel testified that Mr. Gligorevic did not wish to communicate with her and provided her with no instructions at their meeting. Instead, Mr. Gligorevic told PGT counsel, in English, that he had his own Serbian-speaking lawyer (Mr. Zekavica) and that he did not need or want her services. PGT counsel responded that [page329] she would attend the hearing the following day, in the event that Mr. Gligorevic's lawyer was not present. PGT counsel then commenced a review of Mr. Gligorevic's clinical file and spent several hours preparing for the hearing.

(3) Resumption of capacity hearing

[23] The hearing resumed as scheduled on September 28. PGT counsel, Dr. McMaster and his counsel, and Mr. Gligorevic were in attendance, as was a Serbian-speaking translator. Mr. Zekavica was not present.

[24] At the start of the hearing, the Board chair introduced the members of the Board and counsel. In doing so, he described PGT counsel as Mr. Gligorevic's counsel. PGT counsel made no comment. In particular, she did not inform the Board that Mr. Gligorevic had declined her services and had provided no instructions concerning the conduct of the hearing.

[25] The Board chair then explained the nature of the hearing. When he again referred to PGT counsel as Mr. Gligorevic's lawyer, Mr. Gligorevic interrupted, stating that Mr. Zekavica was his lawyer and that he could not attend the hearing that day due to an eye operation. The Board chair indicated that PGT counsel had been appointed as his lawyer, but Mr. Gligorevic stated: "I would like to keep in touch with my lawyer because he's familiar with my case. [PGT counsel] is not familiar with my whole situation." Again, PGT counsel made no comment.

[26] Shortly thereafter, the Board chair suggested that PGT counsel speak privately with "[her] client" and the Board recessed briefly for this purpose. On resumption of the hearing, PGT counsel requested a further adjournment. She informed the Board that (1) she had been contacted only the day before and had not had much time to prepare; (2) Mr. Zekavica spoke Mr. Gligorevic's language and had represented him before the ORB; (3) according to information from the interpreter, Mr. Zekavica is well known to the Serbian community and, in fact, had some difficulty with his eye as Mr. Gligorevic claimed; and (4) she would be available, as "presumably" would Mr. Zekavica, for the hearing the following week. PGT counsel then said, "I'm going to leave it in the hands of the Board. I'm available right now, that's not a problem."

[27] Dr. McMaster's counsel opposed the adjournment request, primarily on the basis that Mr. Gligorevic had been untreated [page330] since July 2005. [See Note 3 below] In response to questioning by the Board, Dr. McMaster indicated that, although it was not an emergency, he wished to start treatment as soon as possible since, in the Hospital's view, it appeared that Mr. Gligorevic's delusions were having an impact on his behaviour -- the placing of unwanted and prohibited telephone calls to others. Dr. McMaster also said that the longer Mr. Gligorevic's psychosis remained untreated, "the lower the chances of achieving the best possible effect".

[28] The Board denied the adjournment, stating, "everything has been done in order to try to accommodate Mr. Gligorevic as much as we possibly can" and "our feeling is that he will be adequately represented today by [PGT counsel]".

[29] The hearing proceeded. Dr. McMaster testified and various Hospital documents concerning Mr. Gligorevic were admitted. In his testimony, Dr. McMaster confirmed that Mr. Gligorevic was able to understand information relevant to "his disorder and treatment decisions". However, Dr. McMaster also offered the opinion that Mr. Gligorevic was unable to apply this information to his own circumstances and to appreciate the consequences of his treatment decisions or lack of decisions due to his mental disorder, specifically his delusional belief systems and his lack of insight into his mental disorder. This was evidence that the appreciation criterion for capacity under s. 4(1) of the Act was not met.

[30] Amicus accept that during cross-examination of Dr. McMaster, PGT counsel obtained several admissions that were arguably helpful to Mr. Gligorevic's position. These included Dr. McMaster's acknowledgment that he had explained to Mr. Gligorevic, with the assistance of a Serbian-speaking translator, the positive effects of the antipsychotic medication and the anticipated consequences if Mr. Gligorevic continued to refuse such treatment. However, Dr. McMaster also said that while Mr. Gligorevic understood this information, he did not think that "it [had] any relevance whatsoever to his situation".

[31] Mr. Gligorevic also testified. He denied that he suffered from any mental disorder or that it was necessary for him to take antipsychotic medication to address his condition. He maintained that he was at the Hospital because his lawyer had sent him there for an assessment. [page331]

(4) Board decision

[32] In its reasons dated November 3, 2005, the Board reviewed the evidence of Mr. Gligorevic's mental disorder, including his history of presenting in March 2005, "as being 'extremely psychotic with bizarre persecutory delusions and auditory hallucinations'", and his course at the Hospital. It also referenced Dr. McMaster's testimony that Mr. Gligorevic had "tolerated antipsychotic medication earlier in the year with good results" and his condition would again improve on resumption of this medication.

[33] The Board then summarized the parties' submissions. With respect to PGT counsel's submissions, the Board stated in part:

[PGT counsel] submitted that [Mr. Gligorevic] denied being mentally ill but that he understood the risks and benefits of the antipsychotic medication. She emphasized that because he lacked insight into his illness, he was unable to determine how the taking of antipsychotic medication would apply to himself.

[34] The Board next considered the applicable legal principles and undertook an analysis of the evidence concerning Mr. Gligorevic's treatment capacity. It accepted Dr. McMaster's evidence that Mr. Gligorevic was unable to appreciate the reasonably foreseeable consequences of a treatment decision or lack of decision due to his "fixed false belief that he was not mentally ill" and his belief that there was no reason to take antipsychotic medication. In the Board's view, Dr. McMaster's testimony was "clear, cogent and compelling".

[35] The Board concluded that the "prerequisites for incapacity with respect to psychiatric treatment were met at the time of the Hearing" and that "[a]ll of the evidence points to [Mr. Gligorevic] being unable to see the relevance of his taking antipsychotic medication in terms of himself and his own situation". Accordingly, the Board confirmed that Mr. Gligorevic was incapable with respect to treatment with antipsychotic medication.

(5) Superior Court decision

[36] Mr. Gligorevic appealed the Board's decision to the Superior Court of Justice with the assistance of the patient advocate at the Hospital. By subsequent order of the Superior Court, counsel was appointed for Mr. Gligorevic and directions were provided for the conduct of the appeal based on this court's Procedural Protocol Re Allegations of Incompetence of Trial Counsel [page332] in Criminal Cases (the "Protocol"). [See Note 4 below] When Mr. Gligorevic later delivered a notice of intention to act in person, amicus was appointed to assist the court. PGT counsel was also granted leave to intervene as an added party on the appeal.

[37] In accordance with the court-ordered directions for the appeal and as contemplated by the Protocol, the parties filed fresh evidence in affidavit form concerning Mr. Gligorevic's ineffective assistance of counsel claim. Mr. Gligorevic's brief affidavit (five short paragraphs) consisted mainly of a denial that he had ever instructed PGT counsel "to concede before the Board that [he] was incapable of making [his] own treatment decisions regarding antipsychotic medication".

[38] PGT counsel also filed an affidavit on which she was cross-examined by amicus. In her affidavit, she swore that (1) there was "overwhelming" evidence at the time of the hearing "that [Mr. Gligorevic] is mentally ill, that he suffers from serious delusions and that he does not understand that he is ill"; (2) in her opinion, there was no "meaningful evidence" that could have been adduced to the contrary; (3) the evidence at the hearing also disclosed that Mr. Gligorevic did not believe that he was suffering from a mental illness; (4) Mr. Gligorevic's only instructions to her consisted of his indication that he wished to be represented by his criminal counsel and "bald assertions" that he was not mentally ill and that the "alleged need for treatment 'did not apply' to him"; (5) she adduced evidence before the Board that Mr. Gligorevic understood the risks and benefits of the proposed antipsychotic medication; (6) she made no concessions at the hearing on Mr. Gligorevic's behalf; and (7) she did not argue to the Board that Mr. Gligorevic did not suffer from a mental illness because, in her opinion, to do so would have been a breach of her professional obligations in light of the evidence before the Board.

[39] On cross-examination, PGT counsel also stated that she was "overwhelmed" and "placed in an extremely difficult position" when the Board refused her adjournment request because she did not feel that she had sufficient time to prepare for the hearing and she "would have liked to have been able to meet with [Mr. Gligorevic] with the services of an interpreter and spend a great deal more time with him before going ahead with the hearing". She said that she did her best to prepare for the [page333] hearing in accordance with her mandate from the PGT, notwithstanding the limited time available to her.

[40] The Superior Court justice held that the Board hearing was not unfair, there was no evidence of a miscarriage of justice, the presumption of PGT counsel's competence had not been rebutted and the Board had not relied on a concession of incapacity by PGT counsel. Accordingly, she rejected Mr. Gligorevic's ineffective assistance claim. She did not address his ss. 7 and 15(1) Charter claims.

(6) Mr. Gligorevic's current detention

[41] As a result of this protracted litigation, Mr. Gligorevic has received no treatment with antipsychotic medication since June 2005. In early December 2005, the ORB ordered his detention at the medium-secure unit of the Hospital: Gligorevic (Re), [2005] O.R.B.D. No. 2086 (Rev. Bd.). Subsequently, in 2008, the ORB directed Mr. Gligorevic's transfer to the Waypoint Centre for Mental Health Care in Penetanguishene: Gligorevic (Re), [2008] O.R.B.D. No. 101 (Rev. Bd.). At the time of this appeal, he continued to be detained at that facility by further order of the ORB: Gligorevic (Re), [2011] O.R.B.D. No. 722 (Rev. Bd.).

IV. Issues

[42] There are four issues: (1) What standards of review apply to the Board's and the Superior Court justice's decisions? (2) Is an ineffective assistance claim available on appeal from a Board capacity decision? (3) If the answer to question (2) is yes, what test applies to determine such claims? (4) Did PGT counsel provide ineffective assistance and thereby cause a miscarriage of justice?

V. Analysis

(1) Standards of review

[43] The standard of review applicable to the Board's capacity decision is uncontroversial. The issue before the Board -- whether Mr. Gligorevic was capable of making his own decision regarding treatment with antipsychotic medication -- required the Board to apply the evidence before it to the statutory test for capacity set out in s. 4(1) of the Act. In Starson, at [page334] paras. 84-88, the Supreme Court held that this question of mixed fact and law is reviewable on a standard of reasonableness. See, also, Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9; Giecewicz v. Hastings, [2007] O.J. No. 4969, 2007 ONCA 890, 288 D.L.R. (4th) 587, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 97. There is no suggestion that the Board erred in its interpretation of the statutory test for capacity.

[44] In contrast, the appeal to the Superior Court involved an allegation that PGT counsel's assistance was ineffective. The determination of this issue required the Superior Court justice to consider the test for ineffective assistance of counsel and to apply that test to the facts of this case as established by the written record before her. This, too, is a question of mixed fact and law. However, it attracts the deferential standard of palpable and overriding error, unless the Superior Court justice made some extricable error in principle with respect to her appreciation of the test or its application, in which case the error may amount to an error of law that is reviewable on the correctness standard. Further, where hearing fairness is fatally compromised, standard of review considerations assume less significance. See Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 37; Country Pork Ltd. v. Ashfield (Township) (2002), 2002 CanLII 41578 (ON CA), 60 O.R. (3d) 529, [2002] O.J. No. 2975 (C.A.), at para. 41; Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765, 186 O.A.C. 201 (C.A.), at paras. 290-93, 296-97; L. (H.) v. Canada (Attorney General), [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24, 2005 SCC 25, at paras. 72-75; FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007), 85 O.R. (3d) 561, [2007] O.J. No. 2297, 2007 ONCA 425, at paras. 45-46; Fendelet v. Dohey, [2007] O.J. No. 2519, 2007 ONCA 475, at para. 4.

(2) Availability of ineffective assistance claim

[45] A party to a proceeding before the Board has a statutory right of appeal to the Superior Court on a question of law or fact or both: s. 80(1) of the Act. Under s. 80(10) of the Act, the Superior Court enjoys a wide remedial jurisdiction on a s. 80(1) appeal. It may exercise all the powers of the Board, substitute its opinion for that of a health practitioner or the Board (amongst others), or refer the matter back to the Board, with directions, for rehearing in whole or in part.

[46] Amicus submit that an ineffective assistance claim may be advanced as a ground of appeal from a Board capacity ruling for two reasons. First, they submit that the issue of ineffective [page335] assistance engages a question of law within the meaning of s. 80(1) of the Act. Second, relying principally on this court's decision in R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883, 102 C.C.C. (3d) 35 (C.A.), leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 347, amicus argue that the court has authority under the Charter to entertain an ineffective assistance claim on a s. 80(1) appeal. In Joanisse, Doherty J.A. indicated, at pp. 57-58 C.C.C., that an argument in a criminal appeal of ineffective representation at trial "may be framed either in terms of a denial of Charter rights or as a miscarriage of justice. On either approach, the appellant must show ineffective representation which had the effect of rendering the trial unfair. Absent that showing, there is neither a Charter breach nor a miscarriage of justice."

[47] Dr. McMaster accepts that the Superior Court's broad jurisdiction under ss. 80(1) and 80(10) of the Act encompasses the ability to consider ineffective assistance claims on appeal from a Board capacity decision. Further, as I understood his argument, he also accepts that the Charter may be invoked in a proper case to support an ineffective assistance claim on a s. 80(1) appeal.

[48] However, Dr. McMaster submits that, in this case, it is unnecessary to determine the ineffective assistance claim within the framework of the Charter since the main remedy sought -- a new capacity hearing before the Board -- may be granted under the Act. Further, a Charter challenge based on an argument of ineffective assistance must be directed at those governmental authorities who are responsible for providing persons found incapable with respect to treatment with legal representation. Dr. McMaster contends that, as this was not his responsibility, Mr. Gligorevic's appeal was not properly constituted as a Charter-based claim.

[49] I make three preliminary observations. First, in my view, it is unnecessary to address Dr. McMaster's Charter-based argument. During oral argument, amicus focused on the claim that the ineffective assistance alleged here occasioned a miscarriage of justice. In my view, the jurisdiction of the courts to intervene to prevent a miscarriage of justice is properly invoked in this case.

[50] Second, ss. 80(1) and 80(10) of the Act are concerned with appeals to the Superior Court from Board decisions. They do not apply to appeals to this court and, hence, cannot ground this court's jurisdiction to entertain an ineffective assistance claim on a mental health-related appeal. The decision at issue before this court is that of the Superior Court justice on [page336] Mr. Gligorevic's appeal of first instance. Her decision was a final order from which an appeal lies to this court under s. 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the "CJA"). Section 6(1)(b) places no limitation on the grounds that may be advanced on appeal from a decision of a judge of the Superior Court: Waxman, at para. 290. In addition, s. 134(1) of the CJA gives the appellate court wide remedial powers. Under that provision, on appeal to this court, the court may (1) make any order or decision that ought to or could have been made by the court or tribunal appealed from; (2) order a new trial; or (3) make any other order or decision that is considered just. Further, under s. 134(6), a new trial may be directed where "some substantial wrong or miscarriage of justice has occurred".

[51] Third, the issue of the availability of an ineffective assistance claim as a ground of appeal from a Board capacity ruling is a matter of first impression for this court. I am unaware of any case, and counsel were unable to point to any authority, in which an ineffective assistance of counsel claim was advanced as a ground of appeal in the mental health law domain.

[52] The right to advance an ineffective assistance claim on a criminal appeal is well established. In R. v. B. (G.D.), [2000] 1 S.C.R. 520, [2000] S.C.J. No. 22, 2000 SCC 22, the Supreme Court confirmed that the right to effective assistance of counsel extends to all accused persons. Justice Major, writing for the court, explained, at para. 24: "In Canada that right is seen as a principle of fundamental justice. It is derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada and ss. 7 and 11(d) of the [Charter]." See, also, R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348, 202 C.C.C. (3d) 60 (C.A.), at para. 118; Joanisse, at pp. 56-58 C.C.C. The effective assistance of counsel is an important aspect of an accused's right to make full answer and defence and right to a fair trial: R. v. B. (L.C.) (1996), 1996 CanLII 937 (ON CA), 27 O.R. (3d) 686, [1996] O.J. No. 283 (C.A.), at para. 52. As a result, ineffective assistance claims are encountered frequently as a ground for a new trial in appeals from conviction in criminal cases.

[53] In contrast, ineffective assistance claims are rare in civil appeals. As this court observed in W. (D.) v. White, 2004 CanLII 22543 (ON CA), [2004] O.J. No. 3441, 189 O.A.C. 256 (C.A.), at para. 51, leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 486, this is not surprising since the law affords other remedies for a losing litigant in a civil case if ineffective assistance at trial can be established, most notably, the right to sue for damages arising from solicitor negligence. [page337]

[54] Nonetheless, this court has left open the possibility of an ineffective assistance argument as a ground of appeal in a civil case, on an exceptional basis, especially where the interests of vulnerable people are engaged. In W. (D.), Catzman J.A. of this court stated, at para. 55:

. . . I would not be prepared to close the door to the viability of ineffective assistance of counsel as a ground for a new trial in a civil action. But, also like Grange J.A. [in Dominion Readers' Service Ltd. v. Brant (1982), 1982 CanLII 1771 (ON CA), 41 O.R. (2d) 1 (Ont. C.A.)], I would limit the availability of that ground of appeal to the rarest of cases, such as (and these are by way of example only) cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability. (Emphasis added)

[55] Ineffective assistance has also been advanced as a ground for judicial review of administrative action in the immigration and refugee protection law context: see Teganya v. Canada (Minister of Citizenship and Immigration), [2011] F.C.J. No. 430, 2011 FC 336, 386 F.T.R. 160; Parast v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 844, 2006 FC 660, 153 A.C.W.S. (3d) 1210; Shirvan v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1864, 2005 FC 1509, 143 A.C.W.S. (3d) 1098; Robles v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 520, 2003 FCT 374, 122 A.C.W.S. (3d) 19 (F.C.T.D.).

[56] B. (G.D.) holds that the right to effective assistance of counsel is a constitutionally protected principle of fundamental justice, at least in the criminal law. This recognizes the essential importance of effective assistance of counsel in adversarial proceedings. In B. (G.D.), at para. 25, Major J. cited with approval the following description of the value of effective assistance provided by Doherty J.A. in Joanisse, at p. 57 C.C.C.:

The importance of effective assistance of counsel at trial is obvious. We place our trust in the adversarial process to determine the truth of criminal allegations. The adversarial process operates on the premise that the truth of a criminal allegation is best determined by "partisan advocacy on both sides of the case": U.S. v. Cronic, 104 S. Ct. 2039 (1984), per Stevens J. at p. 2045. Effective representation by counsel makes the product of the adversarial process more reliable by providing an accused with the assistance of a professional trained in the skills needed during the conduct of trial. The skilled advocate can test the case advanced by the prosecution, as well as marshal and advance the case on behalf of the defence. We further rely on a variety of procedural safeguards to maintain the requisite level of adjudicative fairness in that adversarial process. Effective assistance by counsel also enhances the adjudicative fairness of the process in that it provides to an accused a champion who has the same skills as the prosecutor and who can use those skills to ensure that the accused receives the full benefit of the panoply of procedural protections available to an accused. [page338]

Where counsel fails to provide effective representation, the fairness of the trial, measured both by reference to the reliability of the verdict and the adjudicative fairness of the process used to arrive at the verdict, suffers. In some cases the result will be a miscarriage of justice.

[57] In my opinion, the same observations apply here. Joanisse concerned effective assistance at a criminal trial, where the liberty rights of an accused are directly implicated. However, the need for effective assistance is no less serious in the mental health context, where medical treatment decisions are at issue. In my view, this conclusion finds support in the s. 7 Charter guarantee of the right to life, liberty and security of the person and at common law.

[58] At common law, a patient's right of self-determination with respect to medical treatment is recognized and protected, absent emergency circumstances. This right led to the development of the doctrine of informed consent as a critical means of protecting a patient's right to control his or her own medical treatment. For example, in Malette v. Shulman (1990), 1990 CanLII 6868 (ON CA), 72 O.R. (2d) 417, [1990] O.J. No. 450 (C.A.), at pp. 423-24 O.R., this court stated:

Patients have the decisive role in the medical decision- making process. . . . . .

[A patient's] right of self-determination is recognized and protected by the law. As Justice Cardozo proclaimed in his classic statement: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." . . . . .

A competent adult is generally entitled to reject a specific treatment or all treatment, or to select an alternate form of treatment, even if the decision may entail risks as serious as death or may appear mistaken in the eyes of the medical profession or of the community. Regardless of the doctor's opinion, it is the patient who has the final say on whether to undergo the treatment. (Citations omitted)

[59] The common law right of self-determination concerning medical treatment is premised on the "competency" of the patient to understand and make treatment decisions. In Ontario, the right of involuntary patients to self-determination with respect to medical treatment has been codified by the presumption of capacity set out in s. 4(2) of the Act. It is further protected by the prohibition under s. 10(1) of the Act against medical treatment without consent.

[60] In my opinion, as with an accused whose liberty is at risk in a criminal proceeding, a treatment capacity hearing [page339] implicates a patient's fundamental human rights. In a very real sense, an incapacity finding engages a patient's liberty, dignity and right of self-determination with respect to medical treatment. The onus at a Board capacity hearing is on the health practitioner asserting incapacity to demonstrate incapacity on the requisite civil standard of proof by means of strong and unequivocal evidence: Starson, at para. 77; Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal (2005), 2005 CanLII 24217 (ON CA), 76 O.R. (3d) 321, [2005] O.J. No. 2817 (C.A.), at para. 79, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 428. In that sense, where a patient contests his or her physician's finding of incapacity before the Board, the resulting capacity review hearing must be viewed as an adversarial, adjudicative proceeding where fundamental human rights are engaged.

[61] Seen in this context, the effective assistance of counsel at a Board capacity hearing is no less important than at a criminal trial. Adapting Doherty J.A.'s reasoning in Joanisse, at p. 57 C.C.C., to the mental health context, effective assistance by counsel at such hearings enhances the adjudicative fairness of the process. It ensures that a patient who has been found incapable by his or her physician has a champion who has the same skills as counsel for the health care practitioner who can use those skills to ensure that the patient receives the full benefit of procedural protections available to the patient. Moreover, effective assistance ensures that the case for incapacity is thoroughly and skilfully tested and evidence tending to support capacity is advanced on behalf of the patient.

[62] The argument is expressed this way by amicus. They submit that a patient's right to refuse unwanted medical treatment is not "self-executing". In other words, the right is meaningless unless a patient, found incapable with respect to treatment by his or her physician, is able to effectively assert that right. Amicus maintain that without the availability of effective assistance of counsel who is prepared to undertake fearless advocacy for the allegedly incapable patient at a Board capacity hearing, the right of self- determination in respect of medical treatment becomes illusory.

[63] I agree. Involuntary patients, especially NCR patients, are among the most vulnerable persons in the justice system. The effective assistance of counsel at a Board capacity hearing ensures that a patient's right of self-determination with respect to treatment is respected and not forfeited without proper evidence of incapacity in accordance with the Act. This can only enhance the fairness of a Board capacity hearing, measured both by the adjudicative fairness of the process used [page340] to arrive at a capacity determination and by the reliability of the determination.

[64] It follows, in my view, that where it is established that counsel at a Board capacity hearing failed to provide effective assistance, thereby occasioning a miscarriage of justice, a patient may appeal an incapacity finding by the Board on the basis of that failure.

[65] To conclude, I am persuaded that an argument of ineffective assistance of counsel may be raised as a ground of appeal from a Board treatment capacity decision. The Superior Court's jurisdiction to consider such an allegation is anchored in its wide authority under ss. 80(1) and 80(10) of the Act. This court's jurisdiction to do so derives from s. 6(1)(b) of the CJA, which permits appellate review of any final order by a Superior Court justice, and its authority under s. 134(1) and (6) of the CJA. In either forum, in my opinion, an ineffective assistance argument may be framed as a Charter violation or as the cause of a miscarriage of justice.

(3) Test for ineffective assistance claims in mental health cases

[66] In Canada, the test for establishing ineffective assistance has developed in the criminal law context with reference to the decision of the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland holds that the inquiry regarding counsel's conduct contains both performance and prejudice components. Citing Strickland, the Supreme Court held in B. (G.D.), at para. 26, that for an appeal to succeed on this ground it must be established that counsel's acts or omissions constituted incompetence and, further, that a miscarriage of justice resulted. However, in the absence of a miscarriage of justice, "the question of the competence of counsel is usually a matter of professional ethics and is not a question for the appellate courts to consider": B. (G.D.), at paras. 5 and 26.

[67] When a claim of ineffective assistance is raised, the appellant must demonstrate (1) where the claim is based on contested facts, the facts that underpin the claim; (2) the incompetence of the assistance provided (the performance component); and (3) that the ineffective assistance caused a miscarriage of justice (the prejudice component): Archer, at paras. 119-20. See, also, R. v. G. (D.M.) (2011), 105 O.R. (3d) 481, [2011] O.J. No. 1966, 2011 ONCA 343, at para. 100; Joanisse, at p. 59 C.C.C.; R. v. DiPalma, 2002 CanLII 53217 (ON CA), [2002] O.J. No. 2684, [2005] 2 C.T.C. 132 (C.A.), at para. 36. [page341]

[68] With respect to the second requirement, a showing of incompetence, Doherty J.A. elaborated in Archer, at para. 119:

Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment . . . The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": [B. (G.D.), at para. 27].

See, also, Joanisse, at pp. 60-61 C.C.C.; R. v. White (1997), 1997 CanLII 2426 (ON CA), 32 O.R. (3d) 722, [1997] O.J. No. 961 (C.A.), at pp. 744-45 O.R.

[69] Amicus urge this court to adopt a modified standard for assessing the incompetency of counsel in the mental health context. They argue that "the unique circumstances of persons with mental disorder[s] appearing before the Board" justify a less deferential approach to review of counsel's performance than that applicable in the criminal law context. As a result, they contend, the strong presumption of the competency of counsel, stressed in B. (G.D.), Archer, Joanisse and White, should be "more flexibly applied" on appeals from Board treatment capacity decisions.

[70] I do not accept this argument. There is no principled reason, in my view, to adopt a lower, and less deferential, standard for the scrutiny of counsel's performance in proceedings before the Board than otherwise applies in the assessment of ineffective assistance claims.

[71] As detailed in their factum, amicus submit that persons suffering from mental disorders and facing the risk of a treatment incapacity ruling belong to "a marginalized, vulnerable group", are exposed to capacity assessments by their health care providers and the Board at moments of "personal crisis", and are frequently in no position "to assess the effectiveness of [their] own counsel" or "to act upon any departure from an acceptable standard".

[72] The difficulty with this submission is that many of the factors identified by amicus may also apply to an accused who is caught up in the criminal justice system. Like mental health patients, those facing criminal prosecution are often detained or subject while on bail to circumstances of significant liberty restriction and experience considerable confusion about their legal rights. The liberty, dignity and autonomy rights of an accused are no less robust than those of a mental health patient.

[73] More important, amicus' argument implies that, by reason of mental disorder alone, mental health patients are unable to understand the legal process or instruct or communicate with counsel. I do not accept this proposition. It is inconsistent with [page342] the approach to the assessment of the capacity of mental health patients accepted by Canadian courts (see, e.g., Starson) and is also at odds with the presumption of capacity to retain and instruct counsel declared by the legislature in s. 81(1)(b) of the Act.

[74] Further, as Dr. McMaster's counsel points out, there is no basis for assuming that mental health counsel, as a group, are less competent than other classes of counsel. On the contrary, many counsel who act in the mental health law arena in Ontario have significant accumulated expertise with mental health law issues generally, and with the Board in particular, and enjoy highly specialized legal practices.

[75] Amicus rely heavily on In re Mental Health of F. (K.G.), 306 Mont. 1, 29 P.3d 485 (2001), a decision of the Montana Supreme Court, in support of their argument for a lower incompetency threshold for mental health counsel. This reliance is misplaced. The Montana Supreme Court itself recognized in F. (K.G.), at para. 50, that the standard for effective assistance of counsel articulated in that case was based on Montana's "unique constitutional and statutory framework" for the determination of the substantive and procedural rights of mental health patients. The Montana legal framework has no counterpart in Ontario. On this ground alone, F. (K.G.) is distinguishable.

[76] But there is more. The approach to the assessment of the effectiveness of assistance outlined in F. (K.G.) involves the review of a list of anticipated steps to be taken by counsel in order to provide adequate representation for a mental health client. This "check-list" approach to the assessment of counsel's competency has been rejected in Canada, for sound practical and policy reasons. As emphasized in B. (G.D.), at para. 27, and again in Archer, at para. 119, the applicable test in this jurisdiction for the scrutiny of the reasonableness of counsel's conduct proceeds on a "strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance" (emphasis added). In Joanisse, at p. 61 C.C.C., Doherty J.A. cautioned that "[a]n approach which tests counsel's performance against a list of specific 'do's and don'ts' would introduce a false sense of certainty into the assessment of incompetency claims. The situations which may give rise to a claim of incompetence are infinitely variable." See, also, White, at p. 745 O.R.; R. v. Dunbar, [2003] B.C.J. No. 2767, 2003 BCCA 667, 191 B.C.A.C. 223, at paras. 27-29.

[77] Thus, in Canada, the reasonableness of counsel's performance is not assessed against a predetermined catalogue of conduct; rather, it is a fact-specific inquiry that must take [page343] account of the particular circumstances and context of the case from the point in time when counsel made the decisions challenged on appeal: Joanisse, at p. 61 C.C.C.; Dunbar, at para. 28.

[78] Accordingly, I would reject amicus' proposed modified test for addressing the performance component of an ineffective assistance claim on appeal from a Board treatment capacity decision. The governing test is that laid down in B. (G.D.), Archer, Joanisse and White.

(4) Ineffective assistance allegation

[79] Amicus argue before this court, as they did before the Superior Court justice, that a new Board capacity hearing should be ordered because the ineffective assistance provided by PGT counsel caused a miscarriage of justice. They allege numerous areas of incompetence in connection with PGT counsel's dealings with Mr. Gligorevic -- before, during and after the Board capacity hearing.

[80] It is unnecessary for the disposition of this appeal to address the entire constellation of amicus' complaints of ineffective assistance. Two particular complaints require individual consideration: (1) the assertion that PGT counsel failed to obtain instructions from Mr. Gligorevic and to inform the Board of her lack of instructions (the "instructions complaint"); and (2) the claim that PGT counsel, without instructions, conceded in her closing submission to the Board that Mr. Gligorevic was incapable with respect to treatment with antipsychotic medication (the "concession complaint").

(a) Instructions complaint

[81] There are two branches to the instructions complaint. Amicus argue that PGT counsel's failure to obtain instructions from Mr. Gligorevic regarding the hearing, coupled with her failure to inform the Board that she lacked such instructions, resulted in a miscarriage of justice (1) by depriving Mr. Gligorevic of the appearance of adjudicative fairness; and (2) by yielding an unreliable incapacity finding by the Board. On both grounds, they maintain, the Superior Court justice erred by concluding that there was no evidence of a miscarriage of justice in this case. I agree with the first branch of this argument.

[82] Where, as here, an allegation of ineffective assistance is made on appeal, the court is obliged to consider first whether counsel's alleged incompetence resulted in a miscarriage of justice. This approach focuses the court's attention on the ultimate purpose of the appellate inquiry -- the determination of whether a miscarriage of justice occurred -- rather than on the [page344] "grading" of counsel's performance or conduct: B. (G.D.), at para. 35; Archer, at para. 121; Dunbar, at paras. 24-25; DiPalma, at para. 36; Joanisse, at p. 62 C.C.C.

[83] B. (G.D.) instructs that miscarriages of justice in relation to ineffective assistance claims may take various forms. Justice Major indicated, at para. 28: "In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised." In Archer, at para. 120, Doherty J.A. put it this way: "A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict." See, also, G. (D.M.), at para. 103. For this reason, close attention must be paid to the essential character of the conduct said to constitute incompetence: "The nature of the incompetence demonstrated will, in large measure, dictate the kind of inquiry required to determine the effect of that incompetence on the fairness of the trial": Joanisse, at p. 62 C.C.C.

[84] In Joanisse, at pp. 62-64 C.C.C., Doherty J.A. identified two general categories of ineffective assistance claims. The first category involves allegations of "an actual or constructive denial of the assistance of counsel". This may, but need not, involve impugned conduct that permeates counsel's entire participation in the proceeding at issue.

[85] In other cases, the alleged ineffective assistance concerns specific decisions made or actions taken or omitted by counsel. In this second category, the incompetency allegation rests on the contention that "the assistance given was so deficient that it was ineffective" and the effect of counsel's conduct on the fairness of the trial is measured "by reference to the impact of the error or errors on the reliability of the result": Joanisse, at p. 63 C.C.C. This requires an appellant to demonstrate that if counsel had performed in a competent fashion, there is a reasonable probability that the outcome could have been different: Archer, at para. 120; B. (G.D.), at pp. 298-99 C.C.C.

[86] The instructions complaint falls within the first category of cases. The essence of the complaint is that PGT counsel's conduct caused the Board to unknowingly proceed on the erroneous assumption that PGT counsel was in a position to represent Mr. Gligorevic's interests at the hearing when, in fact, she was not. Thus, it is said, by reason of PGT counsel's conduct and unbeknownst to the Board, Mr. Gligorevic was without the benefit of counsel at the Board capacity hearing.

[87] This complaint has no bearing on the reliability of the Board's incapacity finding. Rather, the alleged ineffective [page345] assistance implicates the fairness of the process by which that finding was reached. Based on Dr. McMaster's uncontradicted opinion evidence and the medical documents filed with the Board, there was a firm evidentiary foundation for the Board's conclusion that Mr. Gligorevic did not meet the appreciation component of the test for capacity under s. 4(1) of the Act due to his mental disorder. Further, as the Superior Court justice held, there is no evidence in this case of any reasonable probability of a different substantive outcome on the question of Mr. Gligorevic's treatment capacity had PGT counsel's conduct been different. Accordingly, on this record, the Board's incapacity finding cannot be said to be unreliable.

[88] That, however, does not end the matter: "A reliable verdict may still be the product of a miscarriage of justice if the process through which that verdict was reached was unfair" (citations omitted): Joanisse, at p. 62 C.C.C. As I will explain, I conclude that a miscarriage of justice did occur in this case because the Board, by reason of PGT counsel's conduct, proceeded on a fundamental misapprehension of the facts regarding whether Mr. Gligorevic was represented by counsel at the hearing. On this basis alone, a new Board capacity hearing is required.

[89] First, I do not accept amicus' or PGT counsel's characterization of the facts underlying the instructions complaint. Contrary to their contentions, PGT counsel was not without instructions from Mr. Gligorevic. Nor did the Superior Court justice make this finding. The record establishes that PGT counsel sought and obtained Mr. Gligorevic's instructions. Those instructions were clear and straightforward. Mr. Gligorevic rejected PGT counsel's services and, in effect, directed that she was not to act on his behalf.

[90] Recall that in her affidavit filed in the Superior Court, PGT counsel deposed that Mr. Gligorevic "told me that he did not want my services, since he had his own lawyer". On cross-examination, she testified that Mr. Gligorevic "just did not want to communicate with me", that he told her that he had his own lawyer, that she had no instructions from him concerning the conduct of the hearing, and that even after the Board denied her adjournment request, it was clear that Mr. Gligorevic wanted another lawyer. Indeed, at one point during her cross-examination, when asked whether, at any point, she had explained the process before the Board to Mr. Gligorevic, PGT counsel succinctly stated: "He didn't want me. He didn't want me. He dismissed me. I could do nothing." [page346]

[91] This evidence, in my opinion, established that PGT counsel, in fact, received instructions from Mr. Gligorevic. Mr. Gligorevic instructed her that he did not need or wish her services, that he had his own Serbian-speaking lawyer, and he "dismissed" her. Consequently, PGT counsel had no authority from Mr. Gligorevic to represent him before the Board.

[92] The Superior Court justice concluded that the transcript of the Board proceeding did not disclose an unfair hearing, reasoning in part, "Counsel appointed for the Appellant cross- examined and obtained certain admissions supportive of the Appellant's position. Audi alteram partem was abided by."

[93] However, the Superior Court justice's reasons do not demonstrate that she turned her mind to whether PGT counsel had authority to represent Mr. Gligorevic at the hearing. In my view, in light of the fresh evidence before her, the Superior Court justice was obliged to do so. In particular, the Superior Court justice's reasons suggest that she failed to consider the conflict between Mr. Gligorevic's rejection of PGT counsel's representation and her appointment by the PGT. Nor, based on her reasons, does it appear that the Superior Court justice questioned the hearing fairness implications of the Board's ignorance of any uncertainty in PGT counsel's authority to act for Mr. Gligorevic. With respect, this, too, was an error.

[94] And this is where the problem lies. At no time did PGT counsel have authority from Mr. Gligorevic to act for him before the Board. Moreover, PGT counsel failed to inform the Board of any difficulty, conflict or uncertainty in her authority to represent Mr. Gligorevic at the hearing. On the contrary, in her submissions to the Board concerning her adjournment request, PGT counsel implied precisely the opposite by telling the Board, notwithstanding Mr. Gligorevic's instructions, "I'm available right now, that's not a problem." The Board accepted and relied on this statement when, in denying the requested adjournment, it said, "our feeling is that he will be adequately represented today by [PGT counsel]". Recall, as well, that in his own remarks at the hearing, the Board chair emphasized the need for and the importance of counsel for Mr. Gligorevic.

[95] I do not suggest any bad faith by PGT counsel. Far from it. I accept that her actions throughout were well intentioned. Nonetheless, she had no authority from Mr. Gligorevic to act on his behalf. This was exacerbated by her comments to the Board and her failure to disclose that Mr. Gligorevic had rejected her services, which left the Board with the impression that she was ready, willing and able to represent Mr. Gligorevic at the hearing. This was incorrect. [page347]

[96] While PGT counsel may have been ready and willing to participate on Mr. Gligorevic's behalf, she was not able to do so -- her authority to act had been denied by Mr. Gligorevic. In the result, the entire hearing was conducted by the Board under the mistaken assumption that Mr. Gligorevic was represented by counsel when, in reality, he was not. In the particular circumstances of this case, this was a miscarriage of justice.

[97] Was PGT counsel's conduct reasonable, given her appointment by the PGT pursuant to a Board order? In my view, it was not.

[98] At the time of PGT counsel's appointment, the PGT provided a standard form information bulletin dated April 6, 2003 to counsel appointed to provide representation for persons alleged to be incapable in proceedings under the Act. The Bulletin describes the role of the appointed lawyer, "when the client will not or cannot give instructions", as follows:

The lawyer should attempt to determine the client's wishes and directions through third party sources such as medical practitioners, family members, caregivers and friends of the client. If the client's wishes or directions in the past or at present have been expressed to others in a clear and consistent manner, then the evidence should be presented in Court or to the Board.

The lawyer must not become a substitute decision maker for the client in the litigation: that is, the lawyer cannot consent to the proposed action or treatment even if it appears to be in the best interests of the client. The lawyer must ensure that the evidentiary and procedural requirements are tested and met, even where no instructions, wishes or directions at all can be obtained from the client. (Emphasis added)

[99] It is said that, in light of the provisions of the bulletin, PGT counsel was obliged to proceed to test the "evidentiary and procedural requirements" at the hearing notwithstanding Mr. Gligorevic's opposition to her participation and his refusal of her services. I disagree.

[100] The PGT's involvement in providing legal representation in proceedings under the Act for persons alleged to be incapable is a laudable service to the administration of justice. Undoubtedly, the provision of such representation greatly assists both affected patients and the Board in most cases. But guidelines or directions to counsel from the PGT cannot override a patient's express wishes, especially in light of the presumption of capacity to retain and instruct counsel set out in s. 81(1)(b) of the Act.

[101] This is not a case where the patient would not or could not give instructions by reason of a mental disorder. This is a case where the patient expressly and consistently rejected representation by the PGT appointee. In the face of that [page348] rejection, PGT counsel could not simply proceed, ostensibly as Mr. Gligorevic's counsel and against his wishes, to conduct the hearing. The effect of the Board order directing the PGT to appoint counsel was exhausted once PGT counsel was appointed and Mr. Gligorevic rejected her services.

[102] In these circumstances, what action was reasonably necessary? In my view, at a minimum, it was incumbent on PGT counsel to inform the Board that her retainer had been denied by Mr. Gligorevic and, consequently, that she had no authority from him to represent his interests or provide him with assistance at the Board capacity hearing. Had this information been disclosed, the Board's consideration of PGT counsel's adjournment request may well have been different. In any event, such disclosure would have ensured that the Board was under no misapprehension regarding PGT counsel's role.

[103] Further, in my view, PGT counsel was obliged to withdraw from further participation as appointed counsel for Mr. Gligorevic at the capacity hearing. The Superior Court justice considered, and rejected, this course of action, stating: "I am not satisfied in any case that it would have been responsible for counsel having been appointed by the PGT under the Board's order, to have withdrawn and thus abandoned the Appellant." With respect, I disagree.

[104] It is not a question of "abandonment". PGT counsel had no authority to act from Mr. Gligorevic. Quite the opposite. It is important to remember that PGT counsel was appointed as Mr. Gligorevic's counsel, not as a friend of the court. For this reason, the bulletin is replete with references to the appointee's "client".

[105] Under s. 81(1)(b) of the Act, Mr. Gligorevic was deemed capable for the purpose of retaining and instructing counsel. That deemed capacity necessarily extended to the decision to refuse to retain counsel. The bulletin recognizes, correctly, that it was not open to counsel to speculate on and to proceed according to her personal conception of Mr. Gligorevic's best interests. [See Note 5 below]

[106] Moreover, PGT counsel's withdrawal need not have frustrated the conduct of the capacity hearing. It was open to the Board to adjourn the hearing, as PGT counsel requested, until Mr. Zekavica was available. It is regrettable that this did not occur. On the information before the Board, only a short [page349] additional adjournment would have been required. Alternatively, it may have been open to the Board to appoint amicus to assist it or Mr. Gligorevic at the Board capacity hearing pursuant to the Board's authority to manage its own process, in order to protect the fairness of the hearing and the proper administration of justice. [See Note 6 below] In any event, Mr. Gligorevic was entitled to act in person at the capacity hearing, as he elected to do on his appeal to the Superior Court, and the Board was empowered to proceed on that basis.

[107] None of these options was pursued. Instead, the Board proceeded in the mistaken belief that Mr. Gligorevic had the benefit of counsel. It is impossible to be certain what action the Board would have taken had the true facts been disclosed to it although, as I have said, I think it probable that such disclosure would have altered the Board's ruling on PGT counsel's adjournment request. But, in the end, this is irrelevant. The critical point is that, on the facts underlying the instructions complaint, Mr. Gligorevic was not represented by counsel at the hearing, the Board erroneously thought that he was so represented and, as a result, the adjudicative process by which the Board's ruling was achieved cannot be said to have been fair. A new Board capacity hearing is therefore necessary.

[108] In light of this conclusion, it is technically unnecessary to address amicus' other complaints of ineffective assistance. However, I think it important to also comment briefly on the concession complaint. [page350]

(b) Concession complaint

[109] PGT counsel's impugned closing submission, in its entirety, was as follows:

I'll just make a summary of my client's position. When asked why he was here, of course he said he was found NCR, he indicates that it was an agreement made by -- with him with his lawyer, and perhaps his fate would be better if he came to the hospital here and the criminal charges would be perhaps decreased or whatever. Anyway, it was an agreement. That's his explanation of why he's here. He does not think he has a mental illness and he does of course understand the benefits -- the explanation of the benefits and the risks of taking the medication. It's just the doctor kept repeating that he understands all that, but he just doesn't understand how it applies to himself. So he just doesn't want to apply it to himself, I guess again is the lack of insight. But otherwise, he seems positive if he returns to his country things will be okay. So those are just the observations. The written material speaks for itself and the testimony. (Emphasis added)

[110] In the Superior Court justice's view, "Counsel's statement in closing submissions that the Appellant did not have insight into his illness was a correct reflection of the psychiatric evidence and the Appellant's own evidence." I see no error in this finding. Dr. McMaster expressly testified that Mr. Gligorevic lacked insight into his mental disorder and Mr. Gligorevic's own denial of any mental disorder during his testimony was confirmatory of this expert evidence.

[111] I also think it unclear whether PGT counsel actually conceded Mr. Gligorevic's incapacity. In her closing submission, immediately after her remarks concerning Mr. Gligorevic's lack of understanding and insight as to how information relevant to treatment with antipsychotic medication applied to himself, PGT counsel stated: "So those are just the observations. The written material speaks for itself and the testimony" (emphasis added). These comments can be read as suggesting that PGT counsel was simply outlining her understanding of the evidence before the Board.

[112] I accept that this submission by PGT counsel was unfortunate. It would, perhaps, have been preferable had she avoided highlighting the adverse aspects of Dr. McMaster's opinion evidence in her closing submission. But that is a matter of advocacy and professional judgment -- not capitulation.

[113] More important, the Board's sole reference to PGT counsel's closing submission appears in its recitation of counsels' positions. Situated as it is in the Board's reasons, there is no basis on which to conclude that the Board's reference to PGT counsel's closing submission indicates that its incapacity finding [page351] was driven by her comments. This is confirmed, in my view, by the Board's ensuing analysis of Mr. Gligorevic's treatment capacity. In the analysis section of its reasons, the Board refers only to the evidence it regarded as compelling, eventually concluding that "all of the evidence" pointed to incapacity. I therefore agree with the Superior Court justice's conclusion that, "[w]hile [the Board] observed the remark made by Counsel in her closing, the Board's analysis rests on the evidence before it."

VI. Disposition

[114] For the reasons given, I would allow the appeal, set aside the Board's incapacity decision and remit the matter to the Board for a new capacity review hearing. Given that Mr. Gligorevic has remained untreated for several years due to this litigation, I would expect that the new capacity review hearing will be scheduled as soon as possible. Finally, in light of the novelty of the issues raised on appeal and their significance to the administration of justice, I would award no costs of the appeal.

Appeal allowed.

Notes

Note 1: After his NCR verdict, additional charges were laid against Mr. Gligorevic arising from his alleged assault of his wife in 2002. These additional charges remained outstanding at the time of the Board capacity hearing.

Note 2: In 2009, s. 81(1)(a) was amended to read: "the Board may direct Legal Aid Ontario to arrange for legal representation to be provided for the person": Good Government Act, 2009, S.O. 2009, c. 33, Sch. 18, s. 10(4).

Note 3: Dr. McMaster's counsel later clarified on the record that Mr. Gligorevic had been untreated since June 2005.

Note 4: The Protocol, established in 2000, provides guidelines for the perfection of criminal appeals involving allegations of ineffective assistance of counsel.

Note 5: Starson, at paras. 91, 92 and 112, makes the related point that the Board itself is unable to proceed solely on the basis of its view of a patient's best interests.

Note 6: Since the question of the Board's jurisdiction to appoint amicus was not in issue on this appeal, the matter was not fully argued before this court. We were informed by counsel, however, of an apparently recent Board practice to appoint amicus in appropriate cases. This court has considered the Charter-based and non-Charter-based jurisdiction of the courts to appoint amicus: see R. v. Imona-Russel (2011), 104 O.R. (3d) 721, [2011] O.J. No. 1792, 2011 ONCA 303. The authority of the ORB to appoint amicus pursuant to s. 672.5(8) of the Criminal Code, R.S.C. 1985, c. C-46 was addressed in R. v. LePage, 2006 CanLII 37775 (ON CA), [2006] O.J. No. 4486, 217 O.A.C. 82 (C.A.) and R. v. Runnalls (2011), 106 O.R. (3d) 291, [2011] O.J. No. 2121, 2011 ONCA 364. As I noted earlier in these reasons, amicus was appointed by court order to assist on Mr. Gligorevic's appeal to the Superior Court. It is not uncommon for amicus to be appointed for such purposes on appeals to the Superior Court from the Board: see Hillier v. Milojevic, [2010] O.J. No. 159, 2010 ONSC 435; Cavalier v. Ramshaw, [2010] O.J. No. 4192, 2010 ONSC 5402.