COURT OF APPEAL FOR ONTARIO

CITATION: P.S. v. Ontario, 2014 ONCA 160

DATE: 20140228

DOCKET: M43397/M43413/M43422 (C57256)

Laskin J.A. (in Chambers)

BETWEEN

P.S.

Applicant (Appellant)

and

Her Majesty the Queen in Right of Ontario, Centre for Addiction and Mental Health, Royal Ottawa Health Care Group, St. Joseph’s Health Care, London, Attorney General for Ontario and Waypoint Centre for Mental Health Care

Respondents (Respondents in Appeal)

Karen R. Spector, for the moving party the Mental Health Legal Committee

David Morritt and Eric Morgan, for the moving party the Canadian Civil Liberties Association

Mercedes Perez and Karen Steward, for the appellant P.S.

Hart Schwartz and Joshua Hunter, for the respondents Her Majesty the Queen in Right of Ontario and the Attorney General for Ontario

Susan Adam Metzler and Kathryn Frelick, for the respondent Waypoint Centre for Mental Health Care

Heard: February 7, 2014

Laskin J.A.:

[1] The Canadian Civil Liberties Association (“CCLA”) and the Mental Health Legal Committee (“MHLC”) seek leave to intervene as friends of the court in a forthcoming appeal, P.S. v. Ontario. The appellant, Mr. S., supports the motions to intervene. The respondents, Her Majesty the Queen in Right of Ontario, the Attorney General of Ontario and the Waypoint Centre for Mental Health Care, oppose them. For the following reasons, I grant the motions.

FACTS

[2] Mr. S. has been detained as an involuntary patient at Waypoint under the Mental Health Act, R.S.O. 1990 c. M.7 (“MHA”), since 1996. In 2007, he brought an application for habeas corpus seeking a declaration that Waypoint had breached his rights under ss. 7, 9, 10(a), 12 and 15(1) of the Charter, and seeking remedies for those infringements under s. 24(1). In 2011, Mr. S. filed an amended notice of application seeking a declaration that the involuntary detention and review provisions in ss. 20(1), 20(3), 20(4), 20(5), 34, 39(1), 41(1), 41(2) and 41(3) of the MHA are inconsistent with ss. 7, 9, 12 and 15(1) of the Charter and are of no force and effect.

[3] In 2013, the application was dismissed, except for a finding that Mr. S.’s section 15(1) equality right was infringed by Waypoint’s predecessor institution, the Mental Health Centre Penetanguishene: P.S. v. Ontario, 2013 ONSC 2970.

[4] Mr. S. appeals that decision. His appeal has been perfected but has not been scheduled. Mr. S. has asked that the appeal be heard by a five-judge panel so that the court may revisit its decision in Starnaman v. Penetanguishene Mental Health Centre (1995), 1995 CanLII 1518 (ON CA), 24 O.R. (3d) 701, motion to extend time in which to apply for leave dismissed, [1996] S.C.C.A. No. 129. In that case, the court held that the involuntary detention scheme in the MHA does not infringe ss. 7 or 12 of the Charter. In the decision under appeal, the application judge cited Starnaman as having “answered conclusively” that the MHA does not infringe the Charter and that it complies with the procedural component of the principles of fundamental justice: at para. 43.

THE MOTIONS

(1) The test for intervention as a friend of the court

[5] Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194,permits a non-party to intervene as a friend of the court “for the purpose of rendering assistance to the court by way of argument.” The test for intervention is set out in the familiar words of Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164, at p. 167:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

[6] In a Charter case, the proposed intervener usually has to establish at least one of three criteria: it has a real, substantial and identifiable interest in the subject matter of the proceedings; it has an important perspective distinct from the immediate parties; or it is a well-recognized group with a special expertise and a broadly identifiable membership base: Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2.

[7] On these motions, the respondents acknowledge that the proposed interveners meet at least one of these criteria. However they submit that the proposed interveners both fail to meet the final prong of the test set out in Peel: the CCLA will not make a useful contribution because its arguments are duplicative of the appellant’s; and the MHLC would cause injustice because it proposes to raise a new issue not raised before the application judge.

(2) The CCLA’s motion

[8] The CCLA submits, and the respondents acknowledge, that it has specific expertise on several of the issues raised on this appeal: ss. 7, 9, 12 and 15 of the Charter; the intersection between different Charter rights; the application of the Charter in various contexts; and the treatment and accommodation of mentally ill people.

[9] If granted leave to intervene, the CCLA proposes to make three submissions. First, the MHA violates ss. 7 and 9 of the Charter because it lacks sufficient safeguards, oversight and opportunities to review a person’s involuntary detention. Second, a failure to accommodate pre-lingual deafness (as alleged in Mr. S.’s case) violates ss. 7, 9, 12 and 15. Third, the Charter applies to non-governmental mental health facilities and the government cannot evade its Charter obligations by divesting or outsourcing its functions to a corporation such as Waypoint.

[10] The respondents counter that the CCLA will not make a useful contribution to the appeal because its proposed submissions duplicate Mr. S.’s (on the issue of the alleged Charter breaches) or else are not contested (on the issues of whether the Charter applies to Waypoint and whether it has a duty to accommodate Mr. S.’s disability).

[11] I am satisfied that the CCLA will make a useful contribution to the court’s understanding of the issues and therefore should be granted leave to intervene as a friend of the court. As a national organization concerned with the protection of civil liberties generally, the CCLA can offer its views on the systemic implications of the outcome of the case. This is a perspective that is not otherwise reflected in the appellant’s submissions. I note that at para. 51 of his reasons, the application judge held:

The Applicant asserts that the very fact that he has been housed in a maximum security facility for sixteen years is proof that the MHA is not designed to handle long term detainees. This argument overlooks the more fundamental question of how other long term detainees have fared under the same scheme. The Applicant’s experience of long term detention under the MHA is relevant to the court but, in the absence of other comparable cases, only limited use should be made of it within the framework of a s. 52 analysis.

[12] I am also satisfied that there are live issues between the parties about the extent to which the Charter applies to Waypoint and about the measures it must take to accommodate Mr. S.

[13] Although I agree that the potential exists for some overlap between the CCLA’s arguments and those of Mr. S., Mr. Morritt has undertaken to ensure that his submissions will not be repetitive. That undertaking should be sufficient to alleviate Ontario’s concerns about the CCLA’s intervention.

(3) The MHLC’s motion

[14] Like the CCLA, the MHLC has both a substantial interest and special expertise in the issues raised on this appeal.

[15] The MHLC’s proposed submissions focus on what it says is a “legislative gap” that arises as a result of the Consent and Capacity Board’s inability to supervise the terms of an involuntary patient’s detention under the MHA. The MHLC submits that, under the current regime, people such as Mr. S. have no recourse to challenge the terms of their involuntary detention other than though the lengthy, complex and expensive process of a habeas corpus application in the Superior Court. This, the MHLC submits, poses significant barriers to access to justice – yet access to justice is “essential for compliance with the Rule of Law and Canada’s international law commitments.”

[16] The MHLC submits that the legislative gap can be cured in one of two ways: (i) by conferring s. 24(1) Charter jurisdiction on the Board, in accordance with the decision in R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765; or (ii) by striking down the challenged provisions of the MHA so that the Act can be amended to provide the Board with the necessary powers of oversight.

[17] The respondents oppose the MHLC’s intervention for two reasons. First, they submit that the MHLC proposes to raise issues that were not raised in the court below. They say that nowhere in Mr. S.’s lengthy factum on the application did he raise the issues of whether the Board should be granted s. 24(1) jurisdiction or whether the rule of law and Canada’s international law commitments require access to an administrative tribunal rather than the ordinary courts. Second, Ontario submits that it would be prejudiced if the MHLC were permitted to raise those issues for the first time on appeal because it might have chosen to lead evidence on these issues if they had arisen on the habeas corpus application.

[18] I draw a distinction between the MHLC’s arguments about the potential s. 24(1) jurisdiction of the Board, and about the rule of law and Canada’s international commitments. I agree with counsel for the MHLC that the rule of law and Canada’s international commitments are not new, stand-alone issues but rather are interpretive tools to inform the court’s analysis of the principles of fundamental justice: see R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at paras. 35-39; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at paras. 50-52; and Ruth Sullivan, Statutory Interpretation, 2d ed. (Toronto: Irwin Law, 2007), at pp. 34-35, 238-44. Submissions on these interpretive tools provide the sort of distinct perspective that makes intervention worthwhile for the court.

[19] Whether the MHLC should be permitted to argue that the Consent and Capacity Board has s. 24(1) jurisdiction is a more difficult question. On my reading of the materials, Mr. S. did not take the position that the Board has, or should be deemed to have, the power to grant remedies under s. 24(1). On the contrary, the crux of Mr. S.’s argument both before the application judge and on appeal is that the MHA scheme is unconstitutional precisely because the Board’s jurisdiction is limited to affirming or rescinding a person’s involuntary status (and since 2010, ordering a transfer to a different facility); it has no power to supervise the terms of the person’s detention with a view to maximizing the person’s liberty. It appears to be implicit in his argument that the Board also lacks the power to grant s. 24(1) remedies for individual breaches of the Charter.

[20] Viewed in this way, I am not persuaded that the MHLC’s submissions on the Board’s potential s. 24(1) jurisdiction raise a new issue. Rather, those submissions arise logically out of the issues already squarely before the court on the appeal. Mr. S.’s primary submission is – and has consistently been – that the involuntary detention and review scheme created by the MHA is wholly inadequate to address the needs of long-term involuntary detainees like himself. To analyse that submission, the court will have to consider the scheme as a whole. That may include a consideration of any remedial powers the Board does or does not have to redress Charter breaches.

[21] This is not a case like Bedford v. Canada (A.G.), 2011 ONCA 209, 231 C.R.R. (2d) 113, in which the proposed interveners sought to argue not just that Canada’s prostitution laws violate ss. 2(b) and 7 of the Charter, as the applicants had successfully argued below, but also that the laws violate s. 15. In dismissing the motion to intervene, O’Connor A.C.J.O. noted, at para. 6, that the proposed intervention “does not merely raise an alternative legal argument in relation to the ss. 7 and 2(b) issues but rather raises an entirely new ground on which to challenge the legislation.”

[22] In my view, the MHLC’s submissions on s. 24(1) are in the nature of an “alternative legal argument” that relate to issues raised and decided on the habeas corpus application.

[23] I am also not persuaded that the respondents would suffer any injustice if the MHLC is permitted to intervene. The MHLC submits that, in the light of Conway, the question whether the Board has s. 24(1) jurisdiction is strictly a matter of legal argument and will not require the parties to call any new evidence. I am inclined to agree.

[24] In Conway, the Supreme Court set out a two-part inquiry to determine whether an administrative tribunal can grant s. 24(1) remedies, at paras. 81-82:

[T]he first question is whether the administrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter — and Charter remedies — when resolving the matters properly before it.

Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerning legislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant considerations in discerning legislative intent will include those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function. [Citation omitted.]

[25] The Attorney General submits it might have chosen to lead evidence on the legislative history of the Board to establish that the legislature intended it to hold hearings concerning specific narrow legal issues in a very short time frame. In my view, these arguments go to the Board’s “statutory mandate, structure and function”, all of which can presumably be gleaned from an examination of the statute itself and relevant case law. At this stage, I do not anticipate a need for the parties to add to the record to address the Conway inquiry. However, if Ontario believes it is necessary to file fresh evidence, I will remain seized of the file and will case manage this or other issues that arise.

CONCLUSION

[26] The CCLA and MHLC are granted leave to intervene. They shall accept the record as it stands, subject to any further order of the court. They may each file a factum of not more than 20 double-spaced pages, to be filed by March 28, 2014. They will each be allocated 20 minutes for oral argument.

[27] The respondents are directed to file their factums by May 30, 2014.

“John Laskin J.A.”

February 27, 2014