P.S. v. Her Majesty the Queen in Right of Ontario et al.

[Indexed as: S. (P.) v. Ontario]

Ontario Reports

Court of Appeal for Ontario,

Weiler, Laskin, Sharpe, Gillese and van Rensburg JJ.A.

December 23, 2014

123 O.R. (3d) 651 | 2014 ONCA 900

Case Summary

Charter of Rights and Freedoms — Equality rights — Disability — Deaf applicant committed involuntarily under Mental Health Act and detained in maximum security hospital for 19 years — Applicant's rights under s. 15(1) of Charter being unjustifiably violated by failure to provide him with adequate interpretation services — Canadian Charter of Rights and Freedoms, s. 15(1) — Mental Health Act, R.S.O. 1990, c. M.7.

Charter of Rights and Freedoms — Fundamental justice — Liberty — Mental illness — Involuntary committal provisions of Mental Health Act unjustifiably violating s. 7 of Charter when applied to long-term detainees as Act does not give Consent and Capacity Board authority to ensure that long-term detainee's liberty is restricted no more than is necessary to deal with detainee's risk to public — Appropriate remedy being to limit duration of committals under Act to approximately six months by declaring words "or subsequent" in s. 20(4)(b)(iii) to be of no force or effect — Canadian Charter of Rights and Freedoms, s. 7 — Mental Health Act, R.S.O. 1990, c. M.7, s. 20(4)(b)(iii).

Mental health — Involuntary committal — Involuntary committal provisions of Mental Health Act unjustifiably violating s. 7 of Charter when applied to long-term detainees as Act does not give Consent and Capacity Board authority to ensure that long-term detainee's liberty is restricted no more than is necessary to deal with detainee's risk to public — Appropriate remedy being to limit duration of committals under Act to approximately six months by declaring words "or subsequent" in s. 20(4)(b)(iii) to be of no force or effect — Canadian Charter of Rights and Freedoms, s. 7 — Mental Health Act, R.S.O. 1990, c. M.7, s. 20(4)(b)(iii). [page652]

The applicant suffered from pre-lingual deafness, had limited English language skills and had difficulty communicating with others. In 1996, on the day he was to be released from the penitentiary after serving a sentence for sexual assault, the applicant was committed involuntarily under the Mental Health Act. He was detained in a maximum security facility, the Oak Ridge division of Penetanguishene Mental Health Centre ("PMHC"). In 2008, PMHC was divested from the province and became a public hospital corporation, Waypoint. The Consent and Capacity Board ("CCB"), which held regular reviews of the applicant's detention, repeatedly affirmed that the applicant continued to meet the criteria for involuntary detention, but that he did not belong in a maximum security facility. No medium security facility was willing to accept the applicant, and the CCB did not have the authority under the Act to order a patient transferred to another psychiatric facility until the Act was amended in 2010 to grant it that authority. The applicant applied for a declaration that the involuntary detention and review provisions of the Act violate ss. 7, 9, 12 and 15(1) of the Canadian Charter of Rights and Freedoms. The application was dismissed. The applicant appealed.

Held, the appeal should be allowed.

Where an individual is not being detained for punishment following conviction, but rather is detained simply because he or she poses a risk to public safety, the Charter's guarantee of fundamental justice requires that there be a fair procedure to ensure, on a regular and ongoing basis, that (1) the risk to public safety continues; and (2) the individual's liberty is being restricted no more than is necessary to deal with that risk. The limited powers conferred on the CCB do not meet that constitutional standard. The Act fails to provide the CCB with the tools necessary to ensure that the liberty interests of long-term involuntary patients are restricted no more than is necessary to deal with the risk they pose and that appropriate steps are being taken towards their eventual reintegration into the community. Specifically, the CCB lacks the jurisdiction to supervise the security level, privileges, therapy and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees' liberty interests. The statutory scheme is not saved by the transfer provision enacted in 2010. That provision is a blunt tool, dealing only with transferring a long-term patient from one psychiatric facility to another. This falls well short of a general authority to ensure that the liberty interest of the patient is adequately protected. The violation of s. 7 is not justified under s. 1 of the Charter. The appropriate remedy for the s. 7 violation is to limit the duration of committals under the Act to approximately six months by declaring the words "or subsequent" in s. 20(4)(b)(iii) to be of no force or effect. The declaration of invalidity is suspended for 12 months.

The Charter applied to Waypoint, as well as to PMHC, despite the fact that Waypoint was a private hospital, as Waypoint was the body that exercised the coercive power of the state to detain individuals certified as involuntary patients under the Act. The province cannot contract out of its Charter responsibilities by delegating statutory powers to a private entity. Deafness is a disability that triggers the protection of s. 15(1) of the Charter. The applicant's rights under s. 15(1) were violated by the failure to provide him with adequate interpretation services. The violation was not justified under s. 1 of the Charter. The appropriate remedy was an order declaring that the applicant's rights under s. 15(1) were violated and setting out in general terms the nature and extent of his entitlement under s. 15(1), namely, that Ontario and Waypoint were required to provide the necessary and appropriate communication services that would ensure that the applicant's basic and fundamental personal needs as a detainee were fully understood and addressed, and that the applicant was able to communicate effectively to access the therapeutic, treatment and other programs offered to hearing detainees. [page653]

Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9, 2007 SCC 9, 276 D.L.R. (4th) 594, 358 N.R. 1, J.E. 2007-455, 54 Admin. L.R. (4th) 1, 44 C.R. (6th) 1, 152 C.R.R. (2d) 17, 59 Imm. L.R. (3d) 1, EYB 2007-114995, 154 A.C.W.S. (3d) 363; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, 151 D.L.R. (4th) 577, 218 N.R. 161, [1998] 1 W.W.R. 50, 96 B.C.A.C. 81, 38 B.C.L.R. (3d) 1, 46 C.R.R. (2d) 189, 74 A.C.W.S. (3d) 41; Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, 237 D.L.R. (4th) 1, 318 N.R. 73, J.E. 2004-737, 185 O.A.C. 201, 16 Admin. L.R. (4th) 1, 182 C.C.C. (3d) 193, 19 C.R. (6th) 1, 116 C.R.R. (2d) 304, 129 A.C.W.S. (3d) 711, 60 W.C.B. (2d) 98; R. v. Demers, [2004] 2 S.C.R. 489, [2004] S.C.J. No. 43, 2004 SCC 46, 240 D.L.R. (4th) 629, 323 N.R. 201, J.E. 2004-1375, 185 C.C.C. (3d) 257, 20 C.R. (6th) 241, 120 C.R.R. (2d) 327, 61 W.C.B. (2d) 550; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 2002 SCC 1, 208 D.L.R. (4th) 1, 281 N.R. 1, J.E. 2002-161, 37 Admin. L.R. (3d) 159, 90 C.R.R. (2d) 1, 18 Imm. L.R. (3d) 1, 110 A.C.W.S. (3d) 1104; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381, apld

Starnaman v. Penetanguishene Mental Health Centre (1995), 24 O.R. (3d) 701, [1995] O.J. No. 2130, 83 O.A.C. 95, 100 C.C.C. (3d) 190, 56 A.C.W.S. (3d) 588, 27 W.C.B. (2d) 534 (C.A.), affg [1994] O.J. No. 1958 (Gen. Div.) [Motion to extend time for leave to appeal dismissed [1996] S.C.C.A. No. 129], distd

R. v. Conception, [2014] S.C.J. No. 60, 2014 SCC 60, 13 C.R. (7th) 317, 462 N.R. 315, 378 D.L.R. (4th) 255, 2014EXP-3040, J.E. 2014-1738, EYB 2014-242683, 322 O.A.C. 199, 316 C.C.C. (3d) 182, 116 W.C.B. (2d) 393, consd

Other cases referred to

B. (C.) v. Sawadsky (2006), 82 O.R. (3d) 661, [2006] O.J. No. 4050, 216 O.A.C. 105, 147 C.R.R. (2d) 1, 29 E.T.R. (3d) 14, 152 A.C.W.S. (3d) 162 (C.A.), affg [2005] O.J. No. 3682, 2005 CarswellOnt 4870 (S.C.J.) [Leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 479]; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, [1993] S.C.J. No. 38, 101 D.L.R. (4th) 654, 150 N.R. 241, J.E. 93-663, 10 Admin. L.R. (2d) 1, 20 C.R. (4th) 34, 14 C.R.R. (2d) 1, 18 Imm. L.R. (2d) 245, 39 A.C.W.S. (3d) 501; Greater Vancouver Transportation Authority v. Canadian Federation of Students -- British Columbia Component, [2009] 2 S.C.R. 295, [2009] S.C.J. No. 31, 2009 SCC 31, 192 C.R.R. (2d) 336, 309 D.L.R. (4th) 277, 272 B.C.A.C. 29, [2009] 8 W.W.R. 385, 93 B.C.L.R. (4th) 1, EYB 2009-161351, J.E. 2009-1320, 389 N.R. 98, 179 A.C.W.S. (3d) 98; 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; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, [2000] S.C.J. No. 66, 2000 SCC 69, 193 D.L.R. (4th) 193, 263 N.R. 203, [2001] 2 W.W.R. 1, J.E. 2001-49, 145 B.C.A.C. 1, 83 B.C.L.R. (3d) 1, 28 Admin. L.R. (3d) 1, 150 C.C.C. (3d) 1, 38 C.R. (5th) 209, 79 C.R.R. (2d) 189, 5 T.T.R. (2d) 161, REJB 2000-21529, 101 A.C.W.S. (3d) 732, 48 W.C.B. (2d) 76; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, 264 D.L.R. (4th) 10, 346 N.R. 1, J.E. 2006-620, 222 B.C.A.C. 1, 46 Admin. L.R. (4th) 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, EYB 2006-102437, 68 W.C.B. (2d) 722; Ontario (Attorney General) v. Patient, [2005] O.J. No. 631, 250 D.L.R. (4th) 697, 194 O.A.C. 331, 31 Admin. L.R. (4th) 227, 131 C.R.R. (2d) 65, 137 A.C.W.S. (3d) 230 (Div. Ct.); Pinet v. St. Thomas Psychiatric Hospital, [2004] 1 S.C.R. 528, [2003] S.C.J. No. 66, 2004 SCC 21, 237 D.L.R. (4th) 23, 317 N.R. 365, J.E. 2004-736, 185 O.A.C. 8, 182 C.C.C. (3d) 214, 19 C.R. (6th) 21, 60 W.C.B. (2d) 99; [page654] R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22, 75 C.R. (6th) 201, 320 D.L.R. (4th) 25, 255 C.C.C. (3d) 506, 402 N.R. 255, 263 O.A.C. 61, 211 C.R.R. (2d) 326, 2010EXP-1926, J.E. 2010-1051, EYB 2010-175167, 1 Admin. L.R. (5th) 163, 88 W.C.B. (2d) 441; R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 228 C.C.C. (3d) 385, EYB 2008-130228, [2008] 5 W.W.R. 387, J.E. 2008-514, 371 N.R. 231, 290 D.L.R. (4th) 17, 425 A.R. 79, 54 C.R. (6th) 197, 87 Alta. L.R. (4th) 203, 168 C.R.R. (2d) 34, 78 W.C.B. (2d) 303; R. v. Gibbons (2010), 100 O.R. (3d) 248, [2010] O.J. No. 342, 2010 ONCA 77, 251 C.C.C. (3d) 460, 258 O.A.C. 182, 73 C.R. (6th) 23; R. v. Kobzar (2012), 110 O.R. (3d) 670, [2012] O.J. No. 2179, 2012 ONCA 326, 259 C.R.R. (2d) 263, 292 O.A.C. 83, 284 C.C.C. (3d) 330, 93 C.R. (6th) 405, 101 W.C.B. (2d) 534; R. v. Morales, [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, 144 N.R. 176, J.E. 92-1761, 51 Q.A.C. 161, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74, 12 C.R.R. (2d) 31, EYB 1992-67825, 17 W.C.B. (2d) 580; R. v. Roach, [2009] O.J. No. 662, 2009 ONCA 156, 246 O.A.C. 96, 185 C.R.R. (2d) 333; R. v. Swain, [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 125 N.R. 1, J.E. 91-765, 47 O.A.C. 81, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582; Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, J.E. 86-99, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343; Sahin v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1534, [1995] 1 F.C. 214, 85 F.T.R. 99, 24 C.R.R. (2d) 276, 30 Imm. L.R. (2d) 33, 50 A.C.W.S. (3d) 1278 (T.D.); Schachter v. Canada, [1992] 2 S.C.R. 679, [1992] S.C.J. No. 68, 93 D.L.R. (4th) 1, 139 N.R. 1, J.E. 92-1054, 92 CLLC Â14,036 at 12221, 10 C.R.R. (2d) 1, 34 A.C.W.S. (3d) 1090; Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., [2011] 2 S.C.R. 175, [2011] S.C.J. No. 23, 2011 SCC 23, 306 B.C.A.C. 1, 82 C.C.L.T. (3d) 1, 416 N.R. 1, EYB 2011-190358, [2011] 7 W.W.R. 1, 2011EXP-1577, J.E. 2011-871, 331 D.L.R. (4th) 1, 18 B.C.L.R. (5th) 1, 5 R.P.R. (5th) 1, 81 B.L.R. (4th) 1; Steele v. Mountain Institution (Warden), [1990] 2 S.C.R. 1385, [1990] S.C.J. No. 111, 121 N.R. 198, [1990] 6 W.W.R. 673, J.E. 90-1595, 51 B.C.L.R. (2d) 1, 60 C.C.C. (3d) 1, 80 C.R. (3d) 257, 2 C.R.R. (2d) 304, 11 W.C.B. (2d) 347; United States of America v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, EYB 2006-107828, 69 W.C.B. (2d) 711

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 10(a), 12, 15, (1), 24(1)

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52(1)

Criminal Code, R.S.C. 1970, c. C-34, s. 542(2)

Criminal Code, R.S.C. 1985, c. C-46, Part XX.1 [as am.], ss. 672.54, 672.62

Hospital Insurance Act, R.S.B.C. 1996, c. 204

Human Rights Code, R.S.O. 1990, c. H.19 [as am.]

Immigration and Refugee Protection Act, S.C. 2001, c. 27 [as am.]

Mental Health Act, R.S.O. 1990, c. M.7 [as am.], ss. 15 [as am.], (1) [as am.], (5) [as am.], 20(1) [as am.], (3), (4), (b)(iii), (5) [as am.], 33.1, 34, 38(1), (2), (3), 39(1) [as am.], (4) [as am.], 39.1, 39.2, (1), (2), (9), (10), 41(1), (2), (3)

Authorities referred to

Brown, Donald J.M., Civil Appeals, looseleaf, vol. 2 (Toronto: Carswell, April 2014)

Hannah-Suarez, Andres, "Psychiatric Gating of Sexual Offenders under Ontario's Mental Health Act: Illegality, Charter Conflicts and Abuse of Process" (2005), 37 Ottawa L. Rev. 71 [page655]

Henry, Yukimi, "Psychiatric Gating: Questioning the Civil Committal of Convicted Sex Offenders" (2001), 59 U.T. Fac. L. Rev. 229

Roach, Kent, Constitutional Remedies in Canada, 2nd ed., looseleaf (Aurora, Ont.: Canada Law Book, 2013)

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012)

APPEAL from the judgment of J.R. McCarthy J., [2013] O.J. No. 2432, 2013 ONSC 2970 (S.C.J.) dismissing an application for Charter remedies.

Mercedes Perez and Karen A. Steward, for appellant.

Susan Adam Metzler and Kathryn M. Frelick, for Waypoint Centre for Mental Health Care.

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

Karen R. Spector, for intervenor Mental Health Legal Committee.

David S. Morritt and Eric Morgan, for intervenor Canadian Civil Liberties Association.

The judgment of the court was delivered by

[1] SHARPE J.A.: — This appeal concerns the constitutional validity of the provisions of the Mental Health Act, R.S.O. 1990, c. M.7 ("MHA"), providing for involuntary committal, as those provisions apply to long-term detainees. The appellant's involuntary committal began in 1996, on the day he was to be released from the penitentiary after serving a sentence for sexual assault. His committal has lasted for 19 years and there is no apparent end in sight. The appellant contends that the MHA fails to provide an adequate procedural process to protect his right to liberty guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.

[2] This appeal also concerns the appellant's claim that he has been denied his constitutional right to equality guaranteed by s. 15 of the Charter. The appellant is deaf and asserts that he has not received the level of interpretation required to meet his treatment, rehabilitative and other needs during his 19 years of confinement.

[3] For the following reasons, I conclude that the provisions of the MHA dealing with involuntary committal violate s. 7 of the Charter by allowing for indeterminate detention without adequate procedural protection of the liberty interests of long-term patients. I also conclude that the appellant has not been provided with adequate interpretation services and that his right to equality, guaranteed under s. 15(1) of the Charter, has been violated. [page656]

Facts

(1) The appellant

[4] The appellant, who is referred to as P.S. pursuant to the order of Marchand J., dated February 6, 2008, is 56 years old. He suffers from pre-lingual deafness, which means he lost his ability to hear before learning to speak or understand language. He has limited English language skills and has difficulty communicating with others. These communication challenges have given rise to problems in relation to his treatment as a long-term involuntary patient.

[5] The appellant had a very difficult childhood. He was the victim of physical and sexual abuse at the hands of close relatives. He was placed in a succession of foster homes beginning at age three.

[6] Although the appellant is of normal intelligence and was enrolled in a school for deaf children until he was a teenager, he developed only limited sign language skills. He communicates using a version of Signed English and has some facility with the more commonly used American Sign Language ("ASL"). He was absent from school for long periods due to behavioural difficulties, psychiatric hospitalizations and encounters with police.

[7] The appellant was convicted of several sexual offences involving children in the 1980s. In 1992, he was sentenced to 45 months in prison for sexually assaulting a 12-year-old boy in the washroom of a Y.M.C.A. The appellant received no therapy or counselling during his prison term.

(2) The MHA committal and detention

[8] In January 1996, a psychiatrist at the Kingston Penitentiary completed a Form 1 application for an assessment under s. 15 of the MHA to determine if the appellant met the statutory criteria for civil detention. The MHA allows for civil detention in a psychiatric facility of individuals who suffer from a mental disorder likely to result in serious bodily harm to themselves or to others. The day before the expiry of his sentence, the appellant was transferred from the Kingston Penitentiary to the Oak Ridge division of Penetanguishene Mental Health Centre ("PMHC") for an assessment. The attending physician found that the appellant met the statutory criteria for involuntary detention based on a diagnosis of pedophilia-paraphilia. The appellant has been detained at Oak Ridge, a maximum security facility, ever since.

[9] Since the beginning of his detention, the appellant's doctors have unanimously determined that while he poses a risk to [page657] public safety, he does not require detention in a maximum security facility. However, no medium security psychiatric hospital in Ontario has been willing to accept him as an inpatient. The appellant has had limited access to interpreters throughout his 19-year confinement.

[10] In December 2008, PMHC was divested from the Province of Ontario and became a public hospital corporation. In 2011, PMHC changed its name to Waypoint Centre for Mental Health Care ("Waypoint"). For convenience, I will refer to the institution during the entire post-divestment period as Waypoint. The maximum security wing where the appellant lives is still called Oak Ridge.

[11] Pursuant to the MHA, the Consent and Capacity Board ("CCB") has reviewed the appellant's detention on a regular basis. The CCB has repeatedly affirmed that the appellant continues to meet the criteria for involuntary detention, but does not belong in a maximum security facility. The CCB has exhorted his treatment team to transfer him to a less secure facility and ensure that he receive proper sign language interpretation.

Statutory Framework

[12] Involuntary detention under the MHA is initiated by a Form 1 application for psychiatric assessment. The physician who completes the Form 1 must have reasonable cause to believe the patient is suffering from a mental disorder of a nature or quality that will likely result in serious bodily harm to the patient or another (s. 15(1)). The Form 1 authorizes detention, restraint and examination in a psychiatric facility for up to 72 hours (s. 15(5)).

[13] Following the Form 1 assessment, an attending physician can involuntarily admit the patient under a Form 3 if the physician is of the opinion that the patient continues to meet the statutory criteria for civil committal, and the patient is not suitable for admission as an informal or voluntary patient (s. 20(1), (5)).

[14] A Form 3 provides legal authority to detain, restrain, observe and examine the patient for not more than two weeks. Prior to the expiry of the Form 3, the physician can issue a Form 4 certificate of renewal if the criteria for involuntary admission continue to be met. The first Form 4 authorizes detention for one additional month. A second Form 4 authorizes detention for an additional two months. Subsequent Form 4s authorize detention for an additional three months (s. 20(4)).

[15] A physician who completes a Form 3 or Form 4 must promptly give the patient written notice of the reasons for the [page658] detention, and must inform the patient of the right to a review before the CCB and the right to retain and instruct counsel without delay (s. 38(1) and (2)). The physician must also give notice to a "rights adviser", who is required to meet with the patient to explain the significance of the certificate and the right to have it reviewed by the CCB (s. 38(1) and (3)).

[16] An involuntary patient may challenge his or her initial detention, and any subsequent renewal, before the CCB (s. 39(1)). On the completion of a fourth certificate of renewal, and on the completion of every fourth certificate of renewal thereafter, the patient is deemed to have applied for a review if he or she has not already done so (s. 39(4)).

[17] The CCB has jurisdiction to make one of two orders following a review of the patient's involuntary detention: it "may" confirm the patient's status as an involuntary patient if it determines that the statutory prerequisites were met at the time of the hearing, or it "shall" rescind the certificate if it determines that the statutory prerequisites were not met at the time of the hearing (s. 41(1), (2) and (3)).

[18] In 2010, the MHA was amended to grant the CCB an additional power: the CCB may now order an involuntary patient to be transferred to another psychiatric facility on the application of the patient or of the person in charge of the facility where the patient is detained. An application for a transfer may be made after the completion of a fourth certificate of renewal and every fourth certificate of renewal thereafter (s. 39.2(1) and (2)). The CCB cannot transfer a patient without the patient's consent (s. 39.2(9)). The decision to order a transfer is based on several criteria which cumulatively amount to a "best interests" assessment (s. 39.2(10)).

The Application

[19] In October 2007, after it became apparent that a transfer to a medium security facility would not be forthcoming, the appellant brought an application for habeas corpus and a declaration that PMHC had breached his rights under ss. 7, 9, 10(a), 12 and 15(1) of the Charter. He argued that PMHC failed to provide assessment and treatment opportunities appropriate to his needs as a deaf individual, which prevented him from making any clinical improvement. The appellant claimed that PMHC's conduct effectively condemned him to indefinite detention in a "prison of silence".

[20] He sought remedies under s. 24(1) [of the Charter], including a new risk assessment performed by a clinician experienced in evaluating deaf individuals; an interim order that he be provided [page659] with ASL interpretation for the purposes of that assessment; and subject to the results of that assessment, an order that he be transferred to a less secure facility for "treatment commensurate with his mental health and linguistic needs and directed toward his reintegration into the community". He also sought an order that if he remained in a psychiatric facility, he be provided with consistent social, recreational, vocational and educational opportunities in ASL as well as regular interpretation services to facilitate communication with his caregivers.

[21] In addition to naming PMHC in his application, the appellant named the medium security facilities that had refused to accept him as an inpatient: St. Joseph's Health Care, London; the Centre for Addiction and Mental Health ("CAMH"); and the Royal Ottawa Health Care Group.

[22] In February 2008, Marchand J. granted the motion of those hospitals to strike the application against them. He held that there was no basis for finding that they had participated in depriving the appellant of the rights he claimed under the Charter.

[23] The appellant appealed Marchand J.'s order to this court. The appeal was heard in June 2008 before O'Connor A.C.J.O. and Moldaver and MacFarland JJ.A. The appeal was allowed on terms agreed to by the parties (the "bifurcation order"). The application was to proceed, first, against the Crown and the Attorney General of Ontario ("Ontario"), "through to a determination of whether a Charter breach has occurred and a determination of the service and security needs of the appellant". Subsequent to this determination, the appellant would notify proposed service providers who would then be added to the application on consent to address the issue of remedy.

[24] In 2011, the appellant filed an amended notice of application seeking a declaration that the involuntary detention and review provisions of the MHA (specifically, ss. 20(1), (3), (4), (5), 34, 39(1), 41(1), (2), and (3)) are inconsistent with ss. 7, 9, 12 and 15(1) of the Charter, and are of no force and effect under s. 52(1) of the Constitution Act, 1982. These impugned provisions are attached as Appendix A to these reasons.

[25] The appellant argues that the MHA is unconstitutional when applied to long-term detainees because it lacks an appropriate review procedure that would ensure their liberty is restricted as minimally as possible. This claim rests on the limited extent of the CCB's jurisdiction. As I have noted, until 2010, the CCB could only affirm or rescind an individual's involuntary status. Since 2010, the CCB has had the authority to order a patient's transfer to another psychiatric facility after the [page660] completion of a fourth certificate of renewal, and on the completion of every fourth certificate of renewal thereafter. However, the CCB still lacks the authority to impose conditions on a patient's detention in order to ensure that the patient's residual liberty interest and rehabilitative prospects are protected.

[26] On the application, the appellant led evidence, accepted by Ontario, of the most recent provincial statistics on involuntary detention under the MHA, dating from 2009-2010. Those statistics indicate that 34 per cent of patients involuntarily committed under the MHA were in hospital for less than a week, 80 per cent for less than a month and 98 per cent for less than six months. Using these statistics as a point of reference, I consider "long-term" detention to be periods of detention lasting longer than approximately six months.

Decision of the Application Judge

[27] The application judge held that the MHA contains a complete code for reviewing decisions made under that statute and therefore determined that the court should decline to exercise its habeas corpus jurisdiction.

[28] He held that the Charter applies to Waypoint, but only to the extent that it is exercising its duties and obligations under the MHA. In the application judge's view, this meant that, by virtue of s. 15(1) of the Charter, the appellant has a right to deaf-appropriate services for "significant therapeutic services and interaction", but not for other purposes (at para. 32).

[29] The application judge concluded, at para. 43, that this court's decision in Starnaman v. Penetanguishene Mental Health Centre (1995), 24 O.R. (3d) 701, [1995] O.J. No. 2130 (C.A.) "conclusively" determined that the MHA does not offend ss. 7, 9, or 12 of the Charter and that the MHA "complies completely with the procedural component of the principles of fundamental justice". He found that the appellant's liberty was curtailed with "just cause": the appellant was initially admitted as an involuntary patient pursuant to a constitutionally valid scheme, and subsequent renewals of his involuntary status occurred by operation of the same valid legislative scheme.

[30] The application judge found that the appellant did not suffer a s. 7 infringement prior to the 2010 amendments. While Oak Ridge, a maximum security facility, was "excessive for his security needs", the appellant "enjoyed freedoms and privileges that were uncommon in a maximum security facility, many of which were tailored to his individual circumstances, including his own security needs and unique disability" (at para. 69). [page661]

[31] Though Oak Ridge may not have been the "ideal" setting for the appellant because of its security level and the limited deaf-appropriate services available, the application judge concluded that it provided a safe and secure environment with some ASL support. The appellant enjoyed access to recreational, vocational and social activities, as well as supervised community access: "At worst, he was in an inappropriate facility for his particular needs and given his security risk" (at para. 72). The application judge further found that the appellant may actually enjoy a higher degree of liberty at Oak Ridge than he would receive at a medium security facility.

[32] The application judge rejected the appellant's contention that his detention in a maximum security facility after 2010 continued to violate his rights given the new transfer provision in the MHA.

[33] With respect to the appellant's claim that he was denied deaf-appropriate services, the application judge found that there was no evidence contradicting the diagnoses of pedophilia or psychosis and no clinical opinion that the diagnoses would have been different had deaf-appropriate services accompanied the treatment or the assessments. It followed, held the application judge, that there was no evidence that the failure to accommodate the appellant's disability prolonged his detention contrary to s. 7 of the Charter.

[34] Similarly, there was no evidence that his needs were neglected as a result of complacency or budgetary considerations, or that the appellant has simply languished at Oak Ridge. On the contrary, the application judge found that the evidentiary record was "replete with treatments and opportunities" afforded to the appellant, often complemented with deaf-appropriate services (at para. 76).

[35] The application judge rejected the appellant's contention that he had been a victim of warehousing and that his time at Oak Ridge had amounted to a "prison of silence".

[36] The application judge also dismissed the appellant's claims under ss. 9 and 12 of the Charter. The appellant was not arbitrarily detained and his treatment did not constitute cruel and unusual punishment.

[37] As for the s. 15(1) claim, the application judge stated that the appellant's communication needs were never straightforward and effective communication was always a challenge. However, the application judge did find that PMHC infringed the appellant's s. 15(1) rights by not providing him with effective communication during a number of specific significant therapeutic interactions. He added that the s. 15(1) infringement was [page662] "not intentional" and "did not arise out of bad faith or neglect" (at para. 100).

[38] The application judge found that the violations of the appellant's equality rights all occurred before Oak Ridge was divested from the province to Waypoint in 2008. As he found only historical breaches of the appellant's Charter rights, the application judge found it unnecessary to determine the appellant's service and security needs as contemplated by the bifurcation order.

Fresh Evidence Motion

[39] The appellant moves to introduce as fresh evidence the August 6, 2013 decision and the August 9, 2013 reasons of the CCB dismissing his application to review his status on the ground that he is no longer an "involuntary" patient. The appellant also seeks to introduce correspondence relating to the CCB decision.

[40] The background to the fresh evidence motion is that in July 2012, Waypoint allowed the appellant's Form 4 to lapse and he thereby became a "voluntary" patient. However, according to the appellant, he was treated as voluntary but certifiable, so that if he tried to leave Oak Ridge, he would be immediately certified as an involuntary patient. The appellant argues that fresh evidence should be admitted to give the court a complete account of his situation at Oak Ridge.

[41] Ontario resists the fresh evidence motion on the ground that the appellant explicitly agreed to proceed before the application judge on the basis that he was an involuntary patient. When the issue of his current status was raised at first instance, the appellant's counsel declined the application judge's offer of an adjournment to amend the notice of application to pursue that issue.

Issues

[42] This appeal raises the following issues:

(1) Should the fresh evidence be admitted?

(2) Did the application judge err in rejecting the appellant's claim that the involuntary detention provisions of the MHA violate the constitutional standard mandated by s. 7 of the Charter when applied to long-term detainees?

(3) Did the application judge err with respect to the appellant's claim that his s. 15 rights were violated?

(4) Did the application judge err in declining to exercise his habeas corpus jurisdiction? [page663]

(5) Did the application judge misinterpret this court's 2008 bifurcation order by failing to determine the appellant's service and security needs?

(6) If the appellant's Charter rights were violated, what is the appropriate remedy?

[43] I note that while the appellant asserted claims under ss. 9, 10(a) and 12 of the Charter, the focus of this appeal was on ss. 7 and 15. As I am able to dispose of the appeal on the basis of ss. 7 and 15, I do not find it necessary to consider ss. 9, 10(a) or 12.

[44] The Canadian Civil Liberties Association, intervenor, essentially supports the position of the appellant.

[45] The other intervenor, the Mental Health Legal Committee, contends that the CCB's inability to supervise the terms of a person's involuntary detention creates a "legislative gap" when the scheme is applied to long-term detainees. The Mental Health Legal Committee submits that this problem can be remedied either by striking down the impugned provisions under s. 52(1) of the Constitution Act, 1982 or by conferring s. 24(1) [of the Charter] jurisdiction on the CCB in accordance with R. v. Conway, [2010] 1 S.C.R. 765, [2010] S.C.J. No. 22, 2010 SCC 22.

Analysis

Issue 1: Should the fresh evidence be admitted?

[46] With one qualification, I would dismiss the fresh evidence motion. As I have noted, the fresh evidence concerns the current status of the appellant as a voluntary patient, his last certification having lapsed in July 2012. The appellant seeks to adduce the fresh evidence so that the scope of this appeal can be expanded to include consideration of his voluntary status. The main relevance of this appears to be that as a voluntary patient, the appellant cannot resort to the power conferred on the CCB in 2010 to order his transfer to another psychiatric facility. The appellant contends that his current status puts him in legal limbo. As a voluntary patient, he cannot apply to the CCB for a review of his situation, but if he were to attempt to leave Waypoint he would be immediately certified as an involuntary patient.

[47] The parties jointly submitted an agreed statement of facts which stipulates, "for the purposes of this application [the appellant] should be treated as if he were currently an involuntary patient". When the appellant's counsel raised the issue of "voluntary but certifiable" for the first time in closing submissions, the application judge indicated that the issue was not identified in the notice of application or in the record. He offered [page664] the appellant an adjournment so that counsel could amend the notice of application and lead the further evidence necessary for the application judge to consider the issue. Counsel declined that offer and agreed to proceed on the basis of the agreed statement of facts.

[48] I agree with Ontario's submission that the appellant should not be permitted to raise this new issue on appeal. An appellate court will only entertain a fresh issue on appeal where the opposing party would not be prejudiced, where the interests of justice require the new argument to be heard and where the court would have a sufficient evidentiary record to entertain the issue: see Donald J.M. Brown, Q.C., Civil Appeals, looseleaf, vol. 2 (Toronto: Carswell, April 2014), at para. 10:4210; R. v. Gibbons (2010), 100 O.R. (3d) 248, [2010] O.J. No. 342, 2010 ONCA 77; R. v. Roach, [2009] O.J. No. 662, 2009 ONCA 156, 246 O.A.C. 96.

[49] In my view, the fresh evidence application must be dismissed on the ground that this issue was explicitly raised before the application judge and the appellant made a clear and unequivocal decision to proceed on the basis that he was an involuntary patient. It would be unfair to the respondents to introduce on appeal a new issue that was expressly abandoned at first instance with the result that the parties introduced no corresponding evidence or argument. This court would lack the necessary evidentiary foundation to consider the issue. Finally, given my determination of the issues that are properly before the court, the interests of justice do not require that the new argument be heard.

[50] While I would not accept the appellant's invitation to deal with this new issue on appeal, I consider it appropriate for this court to take note of the CCB's decision dated August 9, 2013. The CCB's decision is a matter of record between the parties and while I would not allow the appellant to add any new issue as a consequence of that decision, it is in my view proper for this court to have a full account of the CCB's treatment of the appellant.

Issue 2: Did the application judge err in rejecting the appellant's claim that the involuntary detention provisions of the MHA violate the constitutional standard mandated by s. 7 of the Charter when applied to long-term detainees?

(1) Decisions of the CCB

[51] I begin my analysis of the s. 7 Charter issue with a review of the CCB decisions regarding the appellant's committal. These [page665] decisions also bear upon the s. 15(1) issue. The CCB has considered the appellant's case on a regular basis. Its decisions provide a more or less contemporaneous chronicle of his situation at Oak Ridge. The findings and conclusions of the CCB were made following contested hearings at which both the appellant and the hospital were present and able to lead evidence and make argument. In my view, they provide compelling evidence of the procedural inadequacy of the MHA, particularly on the facts of this case. The CCB decisions are also relevant to the s. 15(1) claim as they chronicle the problems encountered by the appellant in accessing appropriate interpretation services.

[52] The CCB consistently found that the appellant met the test for certification under the MHA. He suffers from a mental disorder and unless detained in a psychiatric facility, the disorder would likely result in serious bodily harm to another person. It also appears from the CCB decisions that the appellant has been a difficult patient to treat. He has at times refused treatment and the services of some interpreters. He has revealed a lack of understanding of his disorder and the wrongful nature of his conduct. On the other hand, it is also clear from the CCB's decisions that these difficulties were to a significant degree the product of his inability to communicate without sign language interpretation. As observed by the CCB, he was not provided with the signing assistance he needed for significant periods of time.

[53] The other consistent themes running through the CCB's decisions are that the appellant's therapeutic and rehabilitative needs are not being met, he does not require a maximum security facility and it would be in his interest to be transferred to another facility or even into a community setting. However, the CCB continuously recognized that its jurisdiction was limited to the issue of whether or not the appellant was certifiable, and that accordingly it had no authority to order that the appellant be detained under less restrictive circumstances.

[54] In a decision dated April 24, 1996, the CCB accepted the evidence of Dr. Cameron, who had recertified the appellant as an involuntary patient, that the appellant "does not require the maximum security of this particular facility". The CCB also noted that Dr. Cameron was prepared to recommend transferring the appellant to another facility and commented:

[I]t might well be in the best interest of all concerned that the patient be transferred to the St. Thomas Psychiatric Hospital while remaining under certificate under the Mental Health Act, provided that all services needed regarding the patient, in particular with respect to his deafness, are in place. [page666]

[55] However, the CCB added that it had "no jurisdiction to order a transfer of any persons to any facilities" and that its "mandate with respect to certification is solely to look at whether the person remains certifiable under the Mental Health Act".

[56] In a decision dated August 19, 1996, the CCB again highlighted Dr. Cameron's opinion that the appellant did not require maximum security and could be better dealt with at St. Thomas. However, that hospital had not accepted him. The CCB observed that the appellant had been "gated" on the very last day of his penitentiary sentence, and that this "in itself is a disturbing situation for anyone anticipating release to the community, and in particular for someone who is deaf and does not have the advantage of someone signing appropriately for him so that he might attempt to understand what has happened to him". The CCB concluded that the appellant met the test for certification but added:

The Board members also accept the Doctor's evidence that the patient does not require detention in a facility such as [Oak Ridge], and the Board members would recommend transfer of this particular individual to a medium secure facility if the treatment is available in such a hospital. Not only would this assist with later placement in the community, but also would be more cost-effective than a maximum secure setting for an individual who doesn't need it. It may in fact compensate for the extra costs which will be required in order to provide this particular individual with testing and therapy which is meaningful that is with the assistance of those who can communicate with the patient.

[57] The CCB emphasized the need for qualified signers to assist with conducting assessments and providing treatment. The CCB added that it found the assistance of the interpreter at the hearing "most helpful" and observed, "perhaps if translators had been made available to the patient at other points during his life, he would not be labeled as brain damaged or exhibiting psychotic symptoms". Despite these observations, a comprehensive assessment of the appellant in the presence of ASL interpreters did not occur until 2008, more than 12 years later.

[58] In October 1998, the CCB highlighted Dr. Hector's testimony that "the patient continues to have no insight into his illness or into the fact that it is against the law to have sex with children or adolescents" and "the situation is complicated by the fact that there is a communication problem at this facility, there being no monies available for a signer and no volunteers in the area capable and/or available to provide such assistance" (emphasis added).

[59] In its February 17, 1999 decision, the CCB again upheld the appellant's certification but made several observations as to [page667] the inadequacy of the circumstances of the appellant's detention at PMHC. The CCB noted:

Dr. Hector indicated that he believed the patient would be willing to participate in a treatment program, that he would be a good candidate for such a program, however there was no hope of the patient getting any of the required treatment at Oak Ridge.

[60] The CCB observed that no attempt had been made to employ the services of an interpreter because those services were deemed to be too expensive and that "no treatment was currently being offered and there was no immediate prospect of any treatment or program being offered at Oak Ridge". The CCB noted that St. Thomas continued to refuse to accept the appellant but added, "clearly the type of treatment, which the patient would benefit from, was readily available at other Psychiatric Hospitals in Ontario and it was not available at Oak Ridge".

[61] The CCB acknowledged that the appellant had been held for more than three years at Oak Ridge and that the certifying doctor "candidly concedes that the patient is simply being 'warehoused'". The certifying doctor further stated that "the Oak Ridge facility was totally inappropriate for a patient such as [the appellant] because the facility did not have any reintegration services, which could even begin to make arrangements for the release of a patient into a structured facility in the community". Once again, the CCB noted the limits on its jurisdiction, but expressed serious concerns regarding the appellant's situation and PMHC's failure to provide him with adequate signing assistance.

[62] One member of the CCB would have rescinded the certificate because the certifying doctor had not personally examined the appellant and had not met the burden of proving that his anti-social behaviour was the result of mental disorder. The dissenting member added:

This patient has in effect been given a "life sentence" which is not permitted by the Mental Health Act. No proper consideration has been given to whether or not it is necessary to keep the patient in the custody of a psychiatric facility. Oak Ridge has not made any attempt at preparing a discharge plan at any time since the patient was admitted three years ago.

[63] While the majority upheld the certificate, it found that the likelihood the appellant would cause serious bodily harm to children unless he remained in the custody of a psychiatric facility was

[A]s a result of the failure by Oak Ridge to:

i. effectively use an interpreter;

ii. reassess; [page668]

iii. implement a treatment and/or exchange program;

iv. formulate a discharge plan

(Emphasis added)

[64] In its February 29, 2000 decision, the CCB affirmed the certification but concluded with the observation that the appellant "does not require maximum secure surroundings and that his treatment needs could be met in a less secure facility". The CCB found it "disturbing that due to whatever administrative difficulties there are, he remains at this facility" and commented that "the administrative transferring and programme issues need to be addressed, not just for this particular patient but for others in a similar situation".

[65] In a decision dated September 12, 2002, the CCB confirmed the appellant's involuntary status. It noted that the appellant had difficulty following the interpreters at the hearing and suggested that a native (i.e., deaf) interpreter might be of assistance.

[66] In its January 8, 2003 decision, the CCB observed that the appellant seemed more willing to participate in treatment programs than he had in the past. It is significant that this change in attitude appears to have resulted from the presence of a native interpreter at the hearing. The appellant's behaviour at the facility was described as "exemplary" and the CCB once again expressed hope that the appellant would be transferred to a less secure setting, "as he does not require maximum security nor does it appear he ever required same".

[67] In a decision dated November 21, 2003, the board noted that the appellant had not received any therapeutic programming to date and observed that this did not appear to be due to lack of effort on the part of the staff and the institution, "but rather a lack of personnel with the proper communication skills to cope with a person who is disadvantaged due to a hearing and speech impediment". The CCB observed that the problem appeared to have been rectified by recent involvement of a deaf interpreter, and that Dr. Fleming had reported a turning point. The CCB concluded that the appellant's involuntary status should be revoked. Although he continued to pose a risk to society, the CCB found that he could be trusted to remain in the hospital to receive treatment. The appellant failed to do so and was recertified.

[68] Further progress was observed in the CCB's March 7, 2006 decision. The appellant was accepting antipsychotic medication as well as medication to reduce his sex drive, although he continued to lack insight into the wrongfulness of his interest in [page669] sex with children. His treating physician indicated that she was attempting to have him transferred to St. Thomas, where facilities better suited to his needs were available. The CCB concluded that the test for certification was made out but again urged that efforts be made to transfer him to a more suitable setting, particularly in light of the treating physician's opinion that if transferred and given the appropriate treatment, "there was a real expectation that [the appellant] would eventually be discharged from that psychiatric facility".

[69] In its January 10, 2007 decision, the CCB observed that a plan was in place, supported by the appellant and his treatment team, to transfer him to a less secure hospital with the hope of an eventual transfer to the community on a community treatment order. The CCB concluded that the test for certification was met, but once again observed that the appellant did not require a maximum security facility, though he continued to lack insight into his condition and the inappropriateness of his sexual preferences. The CCB considered exercising its discretionary power to rescind the certificate even where the prerequisites for certification had been met but declined to do so. It commented on the efforts being made to place the appellant at CAMH or the Royal Ottawa Hospital and encouraged those institutions "to seriously consider accepting this individual . . . who cannot be appropriately directly re-integrated into the community from a maximum facility and most importantly does not require a maximum secure facility for others' safety".

[70] In a decision dated August 8, 2008, the CCB stated that it was "not pleased that no less secure facility was willing to accept [the appellant] to date". Several months later, in a decision dated December 7, 2008, the CCB noted its opinion that the appellant had "waited a very long time to be transferred to a less secure facility" and agreed that it was "time to consider fresh options for [the appellant ]".

[71] In its August 24, 2009 and April 29, 2010 decisions, the CCB again confirmed the appellant's involuntary status, again observed progress on the part of the appellant, but again noted that satisfactory arrangements were not in place to permit his transfer. At the 2009 hearing, Dr. Ramshaw, the certifying psychiatrist, testified that the appellant did not require maximum security and was ready for a community placement, provided an appropriate structure was in place to ensure the safety of the public and the appellant's well-being.

[72] In 2010, Dr. Ramshaw testified that the only barrier to transferring the appellant, this time to the Bob Rumball Association for the Deaf ("BRAD"), was funding approval. The CCB [page670] observed that amendments to the MHA would soon give it the power to order a transfer. While the CCB still lacked the power to order a transfer at the date of the April 2010 hearing, and could not have ordered a transfer to BRAD since this institution is not a designated psychiatric facility under the MHA, it stated: "[W]e can endorse [the transfer] without reservation."

[73] The issue of a transfer to BRAD was again before the CCB in its decision of February 20, 2011. The CCB noted, with considerable regret, that although supported by the appellant's treating physician, the transfer to BRAD had been "stymied" as "it turned out that the [the appellant] had too high an IQ to qualify". The CCB agreed with the submission that "a transfer to a facility with programming for the hearing impaired would start [the appellant] on an intensive course in life, not one that occurred only in fits and starts such as at Oak Ridge".

[74] This brings me to the final decision of the CCB dated August 9, 2013. The appellant's status as an involuntary patient lapsed when his certification was not renewed in July 2012. The appellant took the position that if he were to attempt to leave Waypoint, he would be immediately certified and returned to the status of an involuntary patient. Therefore, the appellant submitted that the CCB should deal with his application, either as a voluntary or involuntary patient. The CCB dismissed the appellant's application on the basis that its jurisdiction was limited to considering the issue of certification of involuntary patients.

(2) Procedural protection mandated by s. 7 of the Charter

[75] Section 7 of the Charter states:

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

[76] As the appellant alleges a breach of s. 7, he bears the onus of demonstrating on a balance of probabilities that the MHA involuntary committal provisions interfere with or limit his right to life, liberty or security of the person, and that the interference or limitation is not in accordance with the principles of fundamental justice.

[77] There is no question that the appellant has demonstrated an interference with his right to liberty. The contentious issue on this appeal is whether the deprivation of liberty under the MHA comports with the principles of fundamental justice.

[78] It is well established that s. 7 guarantees individuals facing detention the right to a fair process. Even where detention is justified for reasons of public security or safety, s. 7 mandates [page671] procedural protections that provide for a fair hearing by an independent and impartial arbiter: see Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9, 2007 SCC 9, at para. 29; United States v. Ferras, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, at para. 14. As this court recently stated in R. v. Kobzar (2012), 110 O.R. (3d) 670, [2012] O.J. No. 2179, 2012 ONCA 326, at para. 57, "[t]he state cannot detain people for significant periods of time without providing them with a fair procedural process".

[79] The procedural requirements mandated by the principles of fundamental justice depend upon the context: Charkaoui, at para. 20. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, [2002] S.C.J. No. 3, 2002 SCC 1, the Supreme Court affirmed, at para. 118, that "[t]he greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter". In Charkaoui, at para. 25, the Supreme Court reiterated its statement in Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, [1993] S.C.J. No. 38, at p. 1077 S.C.R., that "factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts".

[80] The appellant is being detained in a psychiatric hospital because he suffers from a mental disorder that poses a risk to the public. His situation closely resembles that faced by those who are detained after being found unfit to stand trial or not criminally responsible on account of mental disorder ("NCR"). This brings his involuntary committal into the category of "close or analogous to criminal proceedings", where greater judicial vigilance is required.

[81] On several occasions, the Supreme Court has considered the constitutionality of Criminal Code provisions dealing with the detention of individuals deemed NCR or unfit to stand trial. These cases establish legal principles that are applicable to the appellant's challenge to the MHA.

[82] R. v. Swain, [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32 involved a challenge to the long-standing Criminal Code provision that permitted an "insane" accused to be detained in the place and manner directed "until the pleasure of the lieutenant governor of the province is known": R.S.C. 1970, c. C-34, s. 542(2). The regime did not provide for any hearing and afforded no procedural safeguards. By virtue of its failure to provide for procedural fairness, the Supreme Court held that the impugned Criminal Code provision failed to comply with the [page672] principles of fundamental justice. Accordingly, the provision was struck down as a violation of s. 7 of the Charter.

[83] In response to Swain, Parliament enacted Part XX.1 of the Criminal Code, R.S.C. 1985, c. C-46. Among other changes, the newly enacted s. 672.54 stipulated that a review board's disposition must be the "least onerous and least restrictive". In Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, the Supreme Court considered whether this new scheme, specifically s. 672.54, complied with the principles of fundamental justice. At para. 71, the court identified "[t]he dual objectives of Part XX.1, and s. 672.54 in particular" as being, first, the protection of the public from an NCR accused "who poses a significant threat to public safety" and, second, "safeguarding the NCR accused's liberty to the maximum extent possible". The court carefully reviewed the various procedural safeguards Parliament had incorporated into the regime. It noted, at para. 47, that "s. 672.54 requires the court or Review Board to consider the need to protect the public from dangerous persons, together with the mental condition of the accused, his or her reintegration into society, and his or her other needs". The court observed, at para. 59, that the "flexible" scheme in Part XX.1 is "capable of taking into account the specific circumstances of the individual NCR accused", and the specialized review boards must "sensitively evaluat[e] all the relevant factors on an ongoing basis".

[84] The Supreme Court confirmed in Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, [2003] S.C.J. No. 67, 2004 SCC 20, at para. 53, that "Part. XX.1 of the Criminal Code survived the s. 7 Charter challenge in [Winko] only because at every step of the process consideration of the liberty interest of the NCR accused was built into the statutory framework" (emphasis added). Again in R. v. Demers, [2004] 2 S.C.R. 489, [2004] S.C.J. No. 43, 2004 SCC 46, the court affirmed, at para. 40, that the legislation withstood the challenge in Winko because "[i]n cases where a significant threat is established, Parliament has further stipulated that the least onerous and least restrictive disposition of the accused must be selected", thereby ensuring "that the NCR accused's liberty is impaired no more than is necessary to protect public safety". Similarly, in Pinet v. St. Thomas Psychiatric Hospital, [2004] 1 S.C.R. 528, [2003] S.C.J. No. 66, 2004 SCC 21, at para. 19, the court stated that "the liberty interest of an NCR accused should be a major preoccupation of the Review Board" (emphasis added).

[85] In Penetanguishene, at para. 24, the Supreme Court clarified that the standard of "least onerous and least restrictive" [page673] applies to conditions of detention or release as well as to the ultimate disposition. The court observed that "[t]he least restrictive regime" includes "not only the place or mode of detention but the conditions governing it". The court continued, "[t]he liberty interest of the NCR accused is not exhausted by the simple choice among absolute discharge, conditional discharge, or hospital detention on conditions". The conditions of detention or of a conditional discharge "can also have serious ramifications for his or her liberty interest".

[86] Significantly, the court found, at para. 40, that "in terms of the liberty interest, the 'disposition' and its 'conditions' cannot, as a practical matter, be isolated from one another". It noted, at para. 52, that "[t]he unnecessary 'trammelling' of liberty can often lie in the precise conditions attached to the order and not just in the general mode of detention. The devil, as is so often the case, lies in the details."

[87] The need for meaningful and detailed review of the conditions of confinement is not restricted to the mental health context. In Charkaoui, the Supreme Court considered a challenge to the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") that permitted the minister to issue certificates of inadmissibility. These certificates led to the detention of permanent residents or foreign nationals deemed a threat to national security. The court held, at para. 107:

[T]he s. 7 principles of fundamental justice . . . require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case.

[88] At para. 108, the court cited with approval Rothstein J.'s conclusion in Sahin v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1534, [1995] 1 F.C. 214 (T.D.), at pp. 231-32 F.C., that ongoing detention in the immigration context could be constitutional if it resulted from a judicial process that involved the weighing of several factors, including

[t]he availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc.

(Emphasis added)

[89] The court noted in Charkaoui, at para. 116, that "[s]tringent release conditions . . . seriously limit individual liberty. However, they are less severe than incarceration." Because the IRPA allowed judges to "consider terms and conditions that [page674] would neutralize the danger", "fashion conditions that would neutralize the risk of danger upon release" and, "if satisfied that the danger no longer exists or that it can be neutralized by conditions . . . order the release", the judicial review was considered sufficiently "robust" (at paras. 119-23). The certificate scheme was deemed constitutionally sufficient since the reviewing court was required to take into account alternatives to detention (at paras. 109-10).

[90] In Penetanguishene, the court stated, at para. 67, that review boards must also have regard for the other needs of the accused under s. 672.54, and "[a]t the forefront of these 'other needs' is the need for treatment". In Winko, the court held, at para. 41, that "[p]roviding opportunities [for the NCR accused] to receive treatment, not imposing punishment, is the just and appropriate response". See, also, Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, at paras. 40-41: "Review Boards must have the power to impose conditions which relate to those opportunities and to the provision and supervision of medical services", and "must have some supervisory power over the medical treatment of NCR accused persons who are detained in hospitals".

[91] Demers establishes that legislation that provides for detention without vesting the administrative body supervising the detention with adequate procedural powers will violate s. 7. In that case, the court considered the application of Part XX.1 of the Criminal Code to an accused who was permanently unfit to stand trial. As a result of his permanent condition, he faced indefinite appearances before the review board. The review board did not have the power to order psychiatric assessments to determine whether he continued to pose a risk to society. The court held, at para. 49, that "[f]or the Review Board to properly assess the individual, and to make or recommend an appropriate disposition to fit the given situation of an accused, it must have the authority to order a psychiatric evaluation". The court stated, at para. 52, that "[p]sychiatric evaluations are necessary to assess the mental condition of the permanently unfit accused in order to impose the least restrictive conditions, if any, on his or her liberty". It emphasized, at para. 55, the need for the review board to have the procedural tools necessary "to adapt a disposition to meet the permanently unfit accused's current circumstances". The lack of authority to order a psychiatric evaluation resulted in unfair treatment of a permanently unfit accused under Part XX.1, contrary to s. 7 of the Charter.

[92] In sum, the case law suggests that in the non-punitive detention context, s. 7 requires the body reviewing detention to [page675] have the procedures and powers necessary to render a decision that is minimally restrictive on liberty in light of the circumstances necessitating the detention.

(3) Starnaman v. Penetanguishene Mental Health Centre

[93] As I have noted, the application judge essentially disposed of the s. 7 argument on the ground that the issue had been conclusively determined by this court in Starnaman. This appeal was heard by a five-judge panel so that, if necessary, the decision in Starnaman could be reconsidered.

[94] Starnaman involved the "gating" of an inmate who had a long history of sexual offences against young girls. Just prior to the expiry of his two-year sentence for uttering threats, a psychiatrist at the Regional Treatment Centre in Kingston requested that the appellant be assessed under the MHA. The appellant was transferred to PMHC, where he was found to meet the statutory criteria for a certificate of involuntary admission based on a diagnosis of pedophilia. The certificate was renewed twice. Within approximately two months of the first certification, the appellant sought a review before the review board (the predecessor of the CCB). A majority of the board upheld the certificate and the subsequent renewals, and an appeal from that decision was dismissed: Starnaman v. Penetanguishene Mental Health Centre, [1994] O.J. No. 1958 (Gen. Div.).

[95] On appeal to this court, the appellant argued that (1) resort to the MHA just as his sentence was about to expire was an abuse of the civil commitment process and amounted to a de facto dangerous offender proceeding without the parallel safeguards and limitations of that process; (2) it was an abuse of process for the Kingston psychiatrist to request an assessment under the MHA based on criminal conduct for which the appellant had already been convicted and served his sentence; and (3) when used for long-term detainees, the MHA procedure is procedurally inadequate and contravenes s. 7 of the Charter.

[96] In a short, oral "by the court" decision, the panel (Finlayson, Doherty and Abella JJ.A.) dismissed the appeal. The court found no abuse of process as the MHA committal was dealt with entirely by mental health clinicians with no connection to the penal system, the record demonstrated that the PMHC staff had "acted with a view to implementing the provisions of the Mental Health Act as they interpreted them and for no oblique purpose" (at p. 705 O.R.), and there was no basis for the argument that the MHA committal had amounted to a disguised dangerous offender application. [page676]

[97] With respect to the broader s. 7 issue raised, the court carefully restricted its conclusion to the facts of the case. The court "specifically refrain[ed] from deciding whether a [Form 1] application can be made in circumstances where the conduct prior to incarceration provides the only basis for the application" (at p. 705 O.R.). Most important for the purposes of this appeal was the court's treatment of the procedural adequacy of the MHA involuntary committal provisions when applied to long-term detainees. The court stated, at pp. 705-706 O.R.:

The appellant contends that, while the procedure may be adequate for the purposes of short-term involuntary commitment, it is not adequate for longer-term commitments such as occurred in this case. We are not satisfied that the scheme set out in the Act is constitutionally deficient. While that is not to say that the necessary fairness standard may not be [b]reached in a particular case, we find no procedural unfairness in this record. The submissions based on s. 7 of the Charter must be rejected.

(Emphasis added)

[98] I find it impossible to read that brief passage as having conclusively determined that the MHA procedures must, in all cases, be deemed to meet the constitutional standard prescribed by s. 7 of the Charter. The court stated, at p. 704 O.R., that while there were "broader concerns referable to the role of the civil commitment process and its relationship to the criminal process", the case before it "can and should be disposed of only by reference to the specific issues raised herein; the broader questions cannot properly be addressed on this record". Dismissing a motion to extend the time to apply for leave to appeal to the Supreme Court, Cory J. agreed that the "broader question raised on the appeal could not be properly addressed on the record presented": [1996] S.C.C.A. No. 129.

[99] The panel in Starnaman was careful to restrict the reach of its holding to the facts of the case before it and explicitly left open the possibility that in other cases, the "necessary fairness standard" mandated by s. 7 could be breached. Here, we have the benefit of a very full record, including many decisions of the CCB that chronicle the appellant's lengthy history as an involuntary patient under the MHA. There was no such record in Starnaman.

[100] I note as well that the focus in Starnaman was on the issue of gating. That issue has attracted some critical attention in academic writing: see Yukimi Henry, "Psychiatric Gating: Questioning the Civil Committal of Convicted Sex Offenders" (2001), 59 U.T. Fac. L. Rev. 229; Andres Hannah-Suarez, "Psychiatric Gating of Sexual Offenders under Ontario's Mental Health Act: Illegality, Charter Conflicts and Abuse of Process" (2005), 37 Ottawa L. Rev. 71. [page677] However, the appellant has not squarely challenged the constitutionality of gating in this proceeding and accordingly I make no comment on that issue.

[101] When responding to the request for a five-judge panel to reconsider Starnaman, Ontario, supported by Waypoint, took the position that the central issue raised on this appeal was not governed by Starnaman. Ontario submitted that a reconsideration of Starnaman was not warranted because the appellant raises a "novel constitutional argument that was not considered or decided in Starnaman -- i.e. that the CCB should have the same broad powers to impose terms and conditions on a hospital detaining a psychiatric patient as the Ontario Review Board has when it deals with NCR offenders". Ontario submitted that this court never considered such an argument in Starnaman, and that the panel hearing this appeal would not be bound with respect to this new issue. I accept this submission.

[102] Finally, when considering the reach of Starnaman, it is significant to note that at the time it was decided, the extensive body of jurisprudence from the Supreme Court that I have considered above regarding the level of procedural fairness mandated by s. 7 had not yet been fully developed.

[103] I note that the application judge also referred to B. (C.) v. Sawadsky, [2005] O.J. No. 3682, 2005 CarswellOnt 4870 (S.C.J.), affd (2006), 82 O.R. (3d) 661, [2006] O.J. No. 4050 (C.A.), leave to appeal to S.C.C. refused [2006] S.C.C.A. No. 479, to support his holding that the MHA does not violate s. 7. However, that case dealt with a committal of short duration and did not address the issues raised in this appeal.

[104] I conclude, accordingly, that as the specific issue decided in Starnaman is not before us on this appeal and as Starnaman left open for future consideration the very issue that is before us, Starnaman is distinguishable and does not govern the case we have to decide.

[105] It follows that the application judge erred in law by ending his analysis at Starnaman and by failing to give full consideration to the legal arguments relating to the constitutionality of the involuntary committal provisions of the MHA.

(4) The application judge's factual findings in relation to s. 7

[106] The application judge paints a much rosier picture of the appellant's situation than one finds in the decisions of the CCB. While recognizing that the appellant did not belong in maximum security, the application judge found that the appellant was in fact accorded privileges not usually granted to maximum [page678] security patients and that considerable effort was made to meet his specific needs. Ontario and Waypoint rely on the application judge's finding, at para. 85, that the appellant "has been afforded the utmost liberty compatible with his situation".

[107] Ontario and Waypoint urge us to defer to the application judge's factual findings in concluding that there was no breach of s. 7.

[108] I am unable to accept that submission. In my view, the application judge's factual findings are infected by legal error and thereby invite appellate review.

[109] First, the application judge erroneously held that the s. 7 issue was conclusively determined by Starnaman. This legal error meant that he failed to consider the s. 7 issue from the perspective of the applicable legal principles relating to the constitutionally imposed requirements for procedural fairness. Rather than focusing on the inadequacies of the MHA, the application judge viewed the appellant's s. 7 argument solely as a challenge to the discretionary conduct of PMHC and Waypoint. This amounts to an "extricable error in principle" that permits appellate review: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 37. I find that the application judge's erroneous reasoning tainted his factual findings in relation to the issue of whether the inadequacy of the MHA infringed the appellant's liberty interest.

[110] Second, the application judge failed to consider the substantial record of CCB decisions in assessing the degree of procedural fairness accorded to the appellant and the extent to which his residual liberty interest was respected. The CCB decisions were before the application judge but are scarcely mentioned in his reasons. As I have said, these decisions provide a contemporaneous account and assessment of the appellant's situation at Oak Ridge. The application judge failed to grapple with the strong message conveyed by the CCB regarding unwarranted restrictions on the appellant's liberty. If the application judge disagreed with the findings and conclusions of the CCB, he had to offer a reasoned explanation for his disagreement. His failure to do so renders his own contrary factual findings vulnerable to appellate review: Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., [2011] 2 S.C.R. 175, [2011] S.C.J. No. 23, 2011 SCC 23, at para. 71.

(5) Does the MHA meet the s. 7 standard?

[111] I can see no reason why the standard applied by the Supreme Court to the detention of those found unfit to stand trial or NCR and to foreign nationals detained because they pose [page679] a risk to national security should not apply to a long-term involuntary patient detained under the MHA.

[112] The principle that emerges from the cases discussed above is that where an individual is not being detained for punishment following conviction, but rather is detained simply because he or she poses a risk to public safety, the Charter's guarantee of fundamental justice requires that there be a fair procedure to ensure, on a regular and ongoing basis, that

(1) the risk to public safety continues; and

(2) the individual's liberty is being restricted no more than is necessary to deal with that risk.

[113] It is also implicit that protection of the liberty interest requires appropriate steps to be taken to facilitate, to the extent possible, the individual's eventual reintegration into the community.

[114] In my view, the limited powers conferred upon the CCB fail to meet this constitutional standard. The constant refrain in the CCB's decisions involving the appellant is that detention in a maximum security facility is not necessary, that he is not receiving the treatment he needs and that he requires the services of an interpreter. It is painfully evident from the CCB's decisions and from the frustration expressed by its members that the MHA fails to provide the CCB with the tools necessary to ensure that the liberty interests of long-term involuntary patients are restricted no more that is necessary to deal with the risk they pose and that appropriate steps are being taken towards their eventual reintegration into the community.

[115] By failing to confer upon the CCB the necessary authority, the MHA fails to ensure, as required by Winko and Penetanguishene, that "at every step of the process consideration of the liberty interest of the [detained individual is] built into the statutory framework". Specifically, the CCB lacks the jurisdiction to supervise the security level, privileges, therapy and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees' liberty interests.

[116] Ontario submits that there is no constitutional requirement for the legislature to give tribunals any particular powers or jurisdiction and that the appellant has no right to insist upon a tribunal with powers modeled on those conferred by Part XX.1 of the Criminal Code on the Ontario Review Board. Ontario argues that the appellant is asserting a positive right that is not conferred by the constitution. [page680]

[117] This submission mischaracterizes the appellant's position and fails to account for the applicable constitutional principles and governing jurisprudence. The appellant is not asserting a claim for a positive right requiring the province to create a specific tribunal with particular powers. Rather, he is responding to the fact that he is being detained against his will under the MHA and he is asking Ontario to respect the constitutional requirements triggered by this state action. The legislature is entitled to take away the appellant's liberty to protect the public, but in doing so, it must respect the principles of fundamental justice. The long line of authority that I have just reviewed, starting with Swain, establishes that where an individual is detained because of a mental disorder likely to lead to public harm, the principles of fundamental justice mandate a minimum level of procedural protection.

[118] In a second and related submission, Ontario argues that where a patient wishes to challenge a committal on grounds that fall outside the powers of the CCB, there are alternate procedures available to fill any perceived gap. The patient can initiate proceedings in the Superior Court, resort to internal complaint procedures within the hospital, complain about doctors and nurses to the appropriate professional colleges or invoke the process established by the Human Rights Code, R.S.O. 1990, c. H.19 with respect to complaints about a failure to accommodate a disability.

[119] If we were to accept this submission, the appellant, a person who suffers from a mental disorder and a serious disability and who is held in a maximum security institution, would have to initiate proceedings in two or more different tribunals. This solution is fatally flawed; it is legally inadequate and practically unworkable. It would be prohibitively costly, very slow, seriously inconvenient and almost certainly ineffective.

[120] Even if he were somehow able to find a way to initiate these proceedings, none of the fora to which Ontario would send him would have the necessary expertise or the powers to deal with his situation in a comprehensive manner. I fail to see how this could possibly comply with the principle I have already cited from R. v. Kobzar, at para. 57: "The state cannot detain people for significant periods of time without providing them with a fair procedural process."

[121] After this appeal was argued, the Supreme Court released its decision in R. v. Conception, [2014] S.C.J. No. 60, 2014 SCC 60, upholding the right of a hospital to refuse to accept a patient found unfit to stand trial for treatment pursuant to s. 672.62 of the Criminal Code. We granted Ontario's [page681] request to permit the parties to file written submissions on Conception. In my view, Conception has little, if any, bearing on the issues presented in this appeal. Conception certainly does not detract from the long line of authority discussed above as to the need for ongoing supervisory review of the treatment of NCR accused and those found unfit to stand trial: see Mazzei, at paras. 40-41; and Penetanguishene, at para. 67. Nor does it stand for the proposition advanced by Ontario that by conferring discretion on health care professionals, a statute such as the MHA can somehow avoid the need for an effective review mechanism.

[122] I emphasize that in keeping with the focus of the appellant's constitutional challenge, my analysis is restricted to the situation of long-term detainees under the MHA, which I have defined as patients who are detained for longer than approximately six months.

(6) Is the MHA scheme saved by the transfer provision under s. 39.2?

[123] Ontario argues that whatever deficiencies may have existed under the MHA before 2010 have been resolved by the enactment of s. 39.2. As I explained above, this provision allows an involuntary patient (or an individual on his or her behalf) to apply to the CCB for a transfer to another psychiatric facility and gives the CCB the power to order such a transfer after the completion of a fourth certificate of renewal and every fourth certificate of renewal thereafter. As the appellant has made no application for a transfer and has refused to consent to such an application, the respondents argue that he cannot complain of his continued detention at Oak Ridge.

[124] The application judge agreed with that position and held, at para. 66:

In light of the new transfer provisions in the MHA, I am unable to accept that the Applicant's residual liberty is being denied to him. He needs merely to make an application under s. 39.2 to challenge any present restriction on his residual liberty by him being housed in a maximum security facility.

[125] The appellant takes the position that he should not be transferred to another psychiatric facility because his doctors have determined that he is ready for a community placement. He also contends that there is no psychiatric hospital in Ontario that can accommodate his concurrent disabilities of deafness and mental disorder. In my view, it is not possible to determine on this record whether or not the appellant's refusal to consent to a transfer was reasonable. Under the terms of the bifurcation [page682] order, resolution of the specific issue of how best to deal with the appellant's service and security needs is to be dealt with at the second phase of this litigation.

[126] At this stage, we are tasked with assessing the constitutional adequacy of the CCB's powers, including s. 39.2. In my view, the limited authority conferred by s. 39.2 fails to bring the MHA up to the applicable constitutional standard. Section 39.2 is a blunt tool. It only deals with transferring a long-term patient from one psychiatric facility to another. This falls well short of a general authority to ensure that the liberty interest of the patient is adequately protected. The CCB lacks the jurisdiction to order a long-term patient to be transferred to a different security level within a psychiatric facility, to transfer him or her to another hospital with conditions, or to increase privileges regarding community access. There is nothing in s. 39.2 of the MHA to give the CCB the authority to ensure that the long-term patient is moved towards reintegration into the community. There is no power to order conditions for gradual release or ongoing supervision.

[127] I agree with and adopt the submissions in the factum of the intervenor, the Mental Health Legal Committee, that the CCB's inability to tailor conditions of detention to meet the individualized circumstances of long-term patients "constitutes a statutory gap" that "can lead to overly restrictive, prolonged and indefinite detentions thereby rendering the impugned scheme overbroad" in relation to long-term patients (at para. 20). By limiting the power of the CCB to confirm, rescind or transfer, the MHA fails "to ensure that the conditions of a person's long-term detention are tailored to reflect the person's actual level of risk, moving towards their ultimate integration" (at para. 31). As articulated at para. 13 of the Canadian Civil Liberties Association's factum, the CCB lacks the required authority to "make orders regarding security, privileges, therapy and treatment, or access to and discharge into the community", including basic questions as to where and how a person is detained and how they are discharged into the community. While the MHA enables physicians to issue and renew community treatment orders (s. 33.1) and provides for review of such orders by the CCB (s. 39.1), the MHA does not give the CCB the power to issue a community treatment order as an alternative to detention for an individual certified as an involuntary patient.

[128] These gaps in the powers conferred on the CCB have directly affected the appellant. The appellant has never required maximum security. He may now be ready for some form of supervised community living. Though he continues to pose a risk [page683] to public safety, and managing that risk may require ongoing supervision, the CCB still lacks the authority to maintain the certification while ordering less restrictive supervisory conditions. It is virtually inevitable in such a case that the CCB will revert to the default position of ordering detention, in this case in maximum security, even where public safety could be assured with an order less intrusive upon the liberty of the patient.

[129] I conclude that the MHA lacks the procedural safeguards required by s. 7 to ensure adequate protection of a long-term patient's liberty interest.

(7) Section 1 of the Charter

[130] The Supreme Court stated in Suresh, at para. 78, quoting from Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486, at p. 518 S.C.R., that s. 7 violations will be saved by s. 1 only in "exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like". The court added in Charkaoui, at para. 66, that "violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under s. 1". There appears to be no case where the Supreme Court has held that a violation of s. 7 was justified under s. 1: Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012), at p. 289.

[131] Ontario makes reference to the argument that any breach of s. 7 could be justified as a reasonable limit pursuant to s. 1 of the Charter. No serious effort was made to sustain this argument and it must be rejected.

(8) Section 7: Conclusion

[132] I conclude, accordingly, that the appellant has established a breach of his s. 7 rights due to the inadequacy of the CCB's review powers, which fail to ensure adequate protection of the liberty interest of those detained as long-term involuntary patients under the MHA. This infringement is not saved by s. 1.

Issue 3: Did the application judge err with respect to the appellant's claim that his s. 15 rights were violated?

[133] Section 15(1) of the Charter provides:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [page684]

[134] Deafness is a physical disability that triggers the protection of s. 15(1): Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 55. The guarantee of equal protection and equal benefit of the law gives a deaf person, such as the appellant, the right to adequate interpretation services in order to access governmental services. In Eldridge, the Supreme Court held, at para. 78, that "discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public". The court also held, at para. 77, that to fulfill its s. 15(1) obligation to ensure equal benefit of the law, an entity acting in a governmental role "will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services".

[135] The appellant argues that during his time as an involuntary patient at Oak Ridge, he has not been provided with adequate interpretation services and that his s. 15(1) right to equality has thereby been denied.

[136] The application judge found violations of s. 15(1) on the following specific occasions where significant therapeutic interactions occurred in the absence of interpretation services: (i) the sexual preference assessment in February 1996; (ii) the psychological evaluation conducted on July 25, 1996; (iii) case conferences between 1996 and 1999; and (iv) 39 sessions of individualized sexual behavioural programming offered in 2006 and 2007. Ontario conceded that during the pre-divestment period, PMHC breached the appellant's s. 15(1) rights by failing to provide adequate interpretation services during these interactions. The application judge found no s. 15(1) violations attributable to Waypoint.

[137] The appellant argues that the application judge erred by limiting his s. 15(1) ruling to these limited interactions and contends that the nature and scope of the s. 15(1) violations were much more extensive.

[138] While I fully accept that the application judge's factual findings are entitled to deference on appeal, I have concluded that his findings in relation to s. 15(1) are vulnerable to appellate review for two reasons. First, he erred in law with respect to the nature and extent of the application of s. 15(1). Second, he failed to address or explain a significant volume of evidence indicating that the failure to provide the appellant with adequate interpretation services was more prevalent than the specific occasions he listed. As a result of these errors, it is my respectful view that he mischaracterized the extent and nature of the violations of the appellant's s. 15(1) rights. [page685]

(1) Legal errors

(a) Application of s. 15

[139] In my view, the trial judge erred in law by unduly narrowing the application of s. 15(1) of the Charter in both the pre- and post-divestment periods. Because his error stems primarily from a misapplication of the Eldridge test for Charter application to private entities, I begin with the post-divestment period.

[140] Post-divestment, the activities of Waypoint, a private entity, attract Charter scrutiny only to the extent that those activities may be described as "governmental" in nature. The test for determining the Charter's application to private entities is set out in Eldridge, at para. 44:

If the act is truly "governmental" in nature -- for example, the implementation of a specific statutory scheme or a government program -- the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.

[141] The issue in Eldridge was whether a private hospital was subject to Charter scrutiny in relation to its failure to provide sign language interpretation for a deaf patient. The court held that under the comprehensive medicare scheme of British Columbia's Hospital Insurance Act, R.S.B.C. 1996, c. 204, the legislature had delegated to the hospital a governmental activity, namely, the provision of medically necessary services. The hospital was therefore acting in a governmental role when it provided medically necessary services to the public. The court held that s. 15(1) entitled deaf patients to receive medically necessary services on a footing of equality and non-discrimination. This required the hospital to provide the means necessary to ensure "effective communication" in the provision of medically necessary services.

[142] Although Oak Ridge operated as a private hospital post-divestment, it remained the body that exercised the coercive power of the state to detain individuals certified as involuntary patients under the MHA. The MHA does not specify precisely how a detaining hospital is to deliver services to detainees, but the statutory scheme vests the hospital with the authority to play a governmental role in virtually every aspect of patients' lives. The power to detain an individual pursuant to a statutory scheme is quintessentially a "governmental" function that attracts Charter scrutiny. The province cannot "contract out" of its Charter responsibilities by delegating statutory powers to a private entity such as Waypoint: see Eldridge, at para. 42.

[143] Unlike the hospital in Eldridge, whichprovided discrete services to voluntary patients, Waypoint exercises the statutory [page686] power to detain the appellant as an involuntary patient. Statutorily mandated detention renders detainees entirely dependent upon the hospital for the receipt of medical and non-medical services. The circumstances in which the Charter applies are necessarily broader. The application judge therefore erred in restricting the reach of s. 15(1) to [at para. 32] "significant therapeutic services and interaction[s]".

[144] Pre-divestment, Oak Ridge was directly operated by Ontario. At para. 41 of Eldridge, the Supreme Court confirmed that "it is well established that the Charter applies to all the activities of government, whether or not those activities may be otherwise characterized as 'private'". The Eldridge test for Charter application to private entities was not applicable to Oak Ridge in the pre-divestment period. As Oak Ridge was directly operated by the government, deaf detainees were entitled to access all benefits offered to hearing detainees on an accommodated basis.

[145] Although the application judge did not explicitly hold that pre-divestment, s. 15(1) applied only to "significant therapeutic services and interaction", that conclusion is implicit in his reasons. The only infringements he found fall into the category of significant therapeutic interactions. At para. 97, he states that the appellant's s. 15(1) rights were violated "when ASL and [deaf appropriate] services were not provided to him for some significant therapeutic interventions in the pre-divestment period". He then states, applying the Eldridge test, that "the failure to provide sign language interpretation where it was necessary for effective communication in important medical situations" constituted a violation of s. 15(1). It was an error of law to apply the Eldridge test for Charter application in the pre-divestment period when Oak Ridge was operated by the government.

[146] I conclude that the application judge's reasons rest on the proposition that both pre- and post-divestment, s. 15(1) of the Charter only requires the provision of interpretation services during significant therapeutic services and interactions. This was an erroneous and overly narrow application of Eldridge. It follows that the application judge's factual findings as to the appellant's s. 15(1) claims, both pre- and post-divestment, are tainted by legal error. On account of that legal error, the scope of the inquiry he conducted was too narrow, and it follows that the findings he made fail to address the full scope of the s. 15(1) claim.

[147] I note here that s. 15(1) does not require "24/7" interpretation services for all aspects of daily living, but in the context of involuntary detention, it certainly does require a degree of accommodation beyond the context of significant therapeutic [page687] services and interactions. In Eldridge, the court held, at para. 82, that the "'effective communication' standard is a flexible one, and will take into consideration such factors as the complexity and importance of the information to be communicated, the context in which the communications will take place and the number of people involved". The means for effective communication does not have to be provided at all times and in every situation.

[148] However, statutorily mandated detention renders detainees entirely dependent upon the hospital, whether privately or publicly operated, for essential services and treatment. In my view, in the context of detention, the flexible Eldridge standard of "effective communication" mandates the regular provision of communication through deaf appropriate services in order to ensure that the detainees' basic and fundamental personal needs are being fully understood and consistently addressed.

(b) Failure to consider the absence of interpreters when offering treatment

[149] The second legal error is that, even if one were to accept the application judge's finding that Eldridge only required effective communication for "significant therapeutic services and interactions", he overlooked PMHC's failure to utilize interpretation services in obtaining the appellant's consent to or refusal of treatment.

[150] The application judge accepted, at para. 29, the following definition of "significant therapeutic interactions":

[P]hysician consultations and discussions relating to the [appellant's] medications and treatment; requests, meetings, or assessments dealing with possible transfer, medications, or treatment; formal assessments with psychiatrists, psychologists, or other health professionals; and formal group or individual psychotherapy sessions.

[151] This definition would appear to require that interpretation services be utilized during discussions and meetings relating to possible treatment, medications and assessments, even where the outcome of such interactions is a refusal of treatment. To obtain a patient's informed consent to treatment, the hospital needs to be able to communicate information respecting the nature of the illness as well as the risks and benefits of either refusing or accepting the proposed treatment. In my view, the provision of information regarding proposed therapeutic interventions, as well as the corresponding communication of consent or refusal, requires "effective communication" through deaf appropriate services.

[152] As the Supreme Court noted in Eldridge, at para. 57, "the dominant perception of deafness is one of silence. This [page688] perception has perpetuated ignorance of the needs of deaf persons and has resulted in a society that is for the most part organized as though everyone can hear . . . ." By making assumptions about the appellant's various refusals of treatment and interpretation services without properly addressing the communication barriers, those responsible for the appellant's treatment and care exacerbated the lack of treatment opportunities and therapeutic programming the appellant received.

[153] The record shows that when the appellant met with certified ASL interpreters in 2003, there was a breakthrough. He was able to express interest in educational and treatment programs. Dr. Fleming testified at the November 2003 CCB hearing that the appellant "now understands the elements of a treatment program". The appellant participated in various therapeutic interventions in 2004, 2006, 2007 and 2008, the majority of which occurred without accommodation. The appellant's comprehension of proposed treatment and the rationale for such treatment appear to have been crucial to his eventual participation in therapeutic interventions.

[154] In 2008, psychologist Dr. Anderson met with the appellant in the presence of interpreters and reported that the appellant wished to receive therapy for sexual offending behaviour. Dr. Fleming agreed on cross-examination that there has never been any specialized treatment programming for hearing-impaired individuals at Oak Ridge. The application judge's reliance on the appellant's refusal of treatment mischaracterized the level of accommodated therapeutic programming that was actually available at Oak Ridge.

[155] In sum, the application judge erred by failing to consider whether clinicians used interpretation services to facilitate communication when offering treatment to the appellant and when obtaining his alleged refusals.

(c) Failure to consider material evidence

[156] The application judge found, at para. 76:

[T]he evidentiary record is replete with treatments and opportunities afforded to the [appellant], often complemented with [deaf appropriate services]. These include: phallometric testing, a relapse prevention program, sexual behaviour therapy, religious counselling, and trials of antipsychotic medication and anti-androgens.

His reasons provide no indication that he adverted to the significant volume of evidence -- in particular, the CCB decisions -- that paints a very different picture of the adequacy of the interpretation services provided to the appellant. [page689]

[157] The CCB decisions indicate that from the very beginning, it had concerns regarding the inadequacy of the level of interpretation services provided to the appellant. In 1999, the CCB noted that the appellant was simply being "warehoused". The CCB continuously emphasized the need for qualified signers to assist with conducting assessments and providing treatment, and noted repeatedly that this need was not being fulfilled.

[158] In the absence of any explanation for why the application judge came to such a different conclusion from the CCB on the issue of the prevalence of interpreters and why he rejected the substantial body of evidence that supported the CCB's conclusions, I am unable to agree with the submission that this court must defer to those findings.

[159] It would appear from the record that the first documented use of certified interpretation in the clinical setting was in September 1999. Subsequently, the record shows that the appellant received certified interpretation services outside of the legal context at most a couple of times per year until 2008, with increased frequency in the year 2005 when the hospital sought the appellant's initial consent to drug therapy and subsequent consent to increased dosages. The vast majority of the "treatment" referred to by the application judge, including phallometric testing, the relapse prevention program and sexual behaviour therapy, took place without the benefit of signing assistance.

[160] The application judge found, at para. 101, that "Waypoint . . . has made concerted efforts to have ASL interpreters available for monthly clinical team meetings, which the Applicant is encouraged to attend". The level of accommodation did increase in 2008. However, in an answer to an undertaking, Dr. Brian Jones, vice president of the Provincial Forensic Programs Division of Waypoint, advised that Waypoint only began scheduling interpretive ASL services for clinical reviews in 2012, more than three years after it assumed management of Oak Ridge.

[161] The application judge's factual findings fail to take into account material evidence on the issue of the level of accommodation afforded to the appellant, which constitutes a reversible error: Sharbern Holding Inc., at para. 71.

(d) Erroneous findings regarding the sufficiency of communication through writing and gesture

[162] The application judge was satisfied that communication through "simple written exchanges, gestures, or hand signals" was sufficient for daily communication and held that "[t]here is no evidence before me that this has led to any type of misunderstanding or any measure of complaint from the [appellant]" (at para. 102). [page690] He commented that "[a]ssessors have reported that the [appellant] was able to write as an effective means of communication" (at para. 99).

[163] In my view, these findings are problematic. The assessors the application judge is referring to were not language proficiency experts, nor did they have any expertise in working with deaf individuals. Their comments were made in the context of standard clinical interactions. The language assessments eventually performed revealed the opposite conclusion; namely, writing was not a reliable form of communication, particularly for important matters or when used exclusively for extended periods of time.

[164] The application judge overlooked the fact that despite repeated notes in the clinical record of the appellant's poor English language skills, a language proficiency test was not carried out until 2008, and that test placed the appellant's English reading comprehension at a Grade 1.9 level. The assessor concluded:

Those working with [the appellant] currently and in the future must use the services of both a skilled and certified ASL interpreter and a skilled Deaf interpreter whenever possible, and certainly for all matters in which [the appellant] is being asked to make decisions affecting his personal well-being.

(Emphasis added)

[165] For over a decade, health professionals at PMHC interacted with the appellant almost exclusively through written communication and gestures under the assumption that he understood the content of the communication despite the absence of a language proficiency assessment, and despite the availability of information pointing to the appellant's limited reading and writing comprehension.

[166] A report of a psychiatrist from 1988, which formed part of the appellant's clinical file and was accessible to PMHC staff, observed:

[The appellant] has trouble comprehending complex written material and should be considered as probably functionally illiterate[.]

Extreme caution should be used in interpreting any statements he makes without an experienced interpreter present, and in making sure that he comprehends what is being said before it is assumed that he is being uncooperative.

[167] The application judge implied that the reliance on written communication and gestures was defensible given the appellant's difficulties communicating in ASL. He found, at para. 99:

Effective communication with the Applicant proved a challenge from the outset. The assessments of Dr. MacDougall and the ASL Proficiency [page691] Assessment Report of April 2008 both reveal that the Applicant employed a version of Signed English rather than pure ASL. He often articulated English words while signing. He relied extensively on finger spelling . . . Even Dr. MacDougall remarked on the Applicant's preference not to make use of deaf interpreters, given their limited utility to him.

[168] To the contrary, there is an abundance of evidence in the record demonstrating that the appellant was able to engage in more effective communication through the use of interpreters. PMHC staff observed on several occasions that the use of interpreters markedly improved communication with the appellant in the clinical setting. The CCB repeatedly noted that the presence of interpreters was highly beneficial.

[169] While there is evidence that the appellant sometimes rejected deaf interpreters, it is not clear that the rejections were always properly communicated or understood. In any event, given the evidence that interpretation facilitated effective communication, the appellant's refusals cannot mitigate the detaining authority's obligation to provide interpretation where necessary.

[170] The application judge found, at para. 67, that "the evidence is abundant that Waypoint has put into place a wide range of social, vocational, and recreational opportunities for the [appellant]". However, he failed to consider the level of accommodation incorporated into this programming, likely because he erroneously found that written communication was sufficient. While the appellant increasingly participated in activities offered by PMHC and Waypoint, Dr. Fleming agreed that there has never been any educational, vocational, recreational or social programming specifically for deaf people, although he did state that an effort had been made to tailor the programmes "to make them at least as suitable as we can". By 2012, there were still no staff members who were proficient or certified in ASL, though Waypoint began training three staff members in ASL in April 2012. Dr. Jones agreed on cross-examination that there is still no interpreter who attends the facility at regular intervals in order to facilitate communication with staff and co-patients about potential issues or concerns, and that the appellant would have to rely on the periodic visits of Deaf Access Simcoe-Muskoka volunteers to pose questions.

[171] The application judge ignored the prolonged absence of efforts to provide educational programs to improve or maintain the appellant's communication skills, despite highlighting, at para. 73, evidence that the appellant's ASL skills actually deteriorated while at PMHC:

There is evidence from Dr. Delia Wallis that the [appellant] experienced a diminished level of skill and sophistication with sign language because of [page692] a prolonged lack of exposure to consistent models of ASL and limited opportunities to engage in a freely accessible exchange of communication.

[172] In September 2002, the CCB noted the interpreters' opinions that the appellant "might be losing some of his skills due to lack of use and suggested it might be helpful if he could have an interpreter just for casual conversation". This did not happen until 2007 at the arrangement of the appellant's counsel. Dr. Fleming agreed on cross-examination that a lack of access to ASL had eroded the appellant's skills in this area.

[173] The application judge's conclusions on the sufficiency of communication through written communication and gestures constitute a misapprehension of the evidence.

(2) Efforts by Waypoint to improve access to interpreters

[174] More recently, the staff at Waypoint has made increasing efforts to ensure the appellant was provided with accommodated educational programming. In November 2009, Waypoint began funding regular educational sessions with an ASL-fluent tutor from Deaf Access Simcoe-Muskoka covering subjects such as ASL skills, deaf culture, math, geography and current events. Waypoint requested Dr. MacDougall's continued involvement to try to develop appropriate programming in the future and to help move the appellant through the system, though it appears appropriate programming has not yet been implemented. Waypoint also made efforts to arrange for a transfer of the appellant to a facility that would be able to better provide him deaf access services. These efforts were complicated by the fact that the appellant rejected Waypoint's offer to initiate an application for a transfer under s. 39.2.

[175] I accept that the Waypoint staff has worked to increase the availability of interpreters and has made genuine efforts to transfer the appellant to a more appropriate facility. I also recognize that the combination of the appellant's mental illness and his physical disability poses substantial problems for his care, treatment and rehabilitation in a world of limited resources. However, the application judge's references to the absence of bad faith and the lack of intention to violate the appellant's s. 15(1) rights cannot be regarded as determinative. A claim under s. 15(1) does not require proof of fault, and good faith efforts to make the best of a difficult situation cannot excuse a systemic failure to respect the appellant's equality rights.

[176] While those responsible for the appellant's care and treatment are to be commended for the good faith efforts they have made, those individual efforts cannot excuse the institutional denials of equality that are evident in this case. Where [page693] a government system of detention consists of fragmented, under-resourced entities with inadequate powers that collectively contribute to a breach of s. 15(1), the fact that individuals working within those entities "do their best" cannot leave the individual whose rights have been denied without a remedy.

[177] The application judge's rejection of the s. 15(1) claim against Waypoint was tainted by legal error, as discussed above. Nonetheless, while there appears to be evidence upon which a properly instructed trier of fact could find a s. 15(1) breach as against Waypoint, in the circumstances of this case, I do not consider that it would be appropriate for this court to take that step for several reasons. First, we are not a court of first instance and we are not well-equipped to make detailed findings of fact. Second, the record before us is not current. We do not have an up-to-date account of the appellant's present situation and any issues as to remedy for past violations can be dealt with in the second phase of this litigation. Third, while there was a change in the formal legal structure governing Oak Ridge, the transition from PMHC to Waypoint in terms of the care and treatment of the appellant appears to have been seamless and from a practical remedial perspective, it is somewhat artificial to draw a sharp distinction in the appellant's situation pre- and post-divestment. Related to this is the fourth point, namely, that for reasons I will explain, the appropriate remedy at this stage of the litigation is a general declaration of the appellant's s. 15(1) rights, leaving the question of any specific remedy to be addressed in the second phase of the litigation.

(3) Interplay between s. 1