COURT OF APPEAL FOR ONTARIO
CITATION: Nelson v. Livermore, 2015 ONCA 688
DATE: 20151013
DOCKET: C59963
Gillese, Epstein and Roberts JJ.A.
IN THE MATTER OF an appeal from the Consent and Capacity Board, pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, as amended
AND IN THE MATTER OF Rodney Nelson, a patient at Waypoint Centre for Mental Health Care – Oak Ridge Site, Penetanguishene, Ontario
AND IN THE MATTER OF the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
BETWEEN
Rodney Nelson
Appellant
and
Dr. Craig Livermore and the Attorney General for Ontario
Respondents
Suzan E. Fraser, for the appellant
Janice Blackburn, for the respondent Dr. Craig Livermore
Yashoda Ranganathan and Hayley Pitcher, for the respondent the Attorney General for Ontario
Heard: September 22, 2015
On appeal from the order of Justice Peter H. Howden of the Superior Court of Justice, dated December 30, 2014, with reasons reported at 2014 ONSC 7477, dismissing an appeal from the Consent and Capacity Board, with reasons reported at 2013 CanLII 33987.
Gillese J.A.:
OVERVIEW
[1] Rodney Nelson has been continually detained under certificates of involuntary admission and sequential renewals since his admission to hospital in March 2005. He appealed to the Superior Court from a March 15, 2013, decision of the Consent and Capacity Board (the “Board”) that confirmed his civil committal pursuant to s. 20(5) of the Mental Health Act, R.S.O. 1990, c. M.7 (the “Appeal”). The Board found that Mr. Nelson suffers from a mental disorder, the nature or quality of which will likely result in serious bodily harm to another person unless he is detained, and that he is not suitable to be a voluntary patient in a psychiatric facility.
[2] The appeal judge dismissed the Appeal on the basis that this court’s decision in P.S. v. Ontario, 2014 ONCA 900, 123 O.R. (3d) 651 rendered it moot.
[3] On further appeal to this court, Mr. Nelson submits that he does not meet the criteria for involuntary admission, that he is unlawfully detained, and that his ongoing detention breaches his rights under ss. 7, 9, 11(h) and 12 of the Canadian Charter of Rights and Freedoms. He asks that this court make findings to that effect, rescind the certificate of renewal of involuntary admission dated March 1, 2013, and order his release.
[4] All the parties agree that the appeal judge erred in finding the entire Appeal to be moot and that he committed reversible legal error in declining to adjudicate on the matters that remained live. Mr. Nelson submitted that this court should nonetheless proceed to hear his appeal. Alternatively, he asked that the matter be remitted to the Superior Court of Justice to be reheard. Dr. Livermore and the Attorney General submitted that the more appropriate course was for this court to allow the appeal and remit the matter to the Superior Court of Justice for rehearing.
[5] Following oral argument, this court allowed the appeal and remitted the matter to the Superior Court to be heard on an expedited basis, with reasons to follow. These are those reasons.
FACTS
[6] Mr. Nelson has a lengthy history of criminal convictions for various offences including assault, sexual assault causing bodily harm, and gross indecency. He has also been convicted of breaches of probation, misrepresentation of his identity, and escape from custody. He has spent most of his time since at least 1990 either incarcerated or in a maximum secure psychiatric facility.
[7] Mr. Nelson’s current detention commenced on March 10, 2005, when he was involuntarily committed to Waypoint (then called the Oak Ridge division of the Penetanguishene Mental Health Centre) pursuant to a Form 1 under the Mental Health Act, upon the expiry of a prison term for assault.
[8] Since that time, the Board has reviewed Mr. Nelson’s detention on a regular basis as required under the Mental Health Act. The Board’s March 15, 2013, decision confirming his civil committal is the subject of this appeal.
THE BOARD’S DECISION
[9] The Board found that, as of the hearing date, Mr. Nelson exhibited symptoms associated with two types of mental disorder: paraphilia and antisocial personality disorder with psychopathy. It also found that Mr. Nelson maintained there was, and is, nothing wrong with him. The Board found that Mr. Nelson lacked insight into the fact that some of his behaviours, statements and actions are wrong and unacceptable to others.
[10] Testing indicated that Mr. Nelson’s rate of sexual and violent recidivism was 2.5 times higher than the average sexual offender. He refused to take any sex drive reduction medication, yet sought immediate discharge into the community. The Board found that until Mr. Nelson accepted and received this medication, behaviour modification therapy, and supervision in the presence of women, he posed a risk of harm to others, particularly young and vulnerable females. The Board also found that, if made a voluntary patient, Mr. Nelson would leave the hospital.
[11] The Board concluded that Mr. Nelson suffered from a mental disorder of a nature or quality that would likely result in serious bodily harm to others unless he remained in the hospital and that he was not suitable for admission as a voluntary patient.
THE APPEAL TO THE SUPERIOR COURT
[12] Mr. Nelson appealed the Board’s decision to the Superior Court. The appeal judge dismissed the Appeal on the basis that this court’s decision in P.S. v. Ontario rendered it moot, so “it no longer matter[ed] whether the [Board] got it right in this one instance”: at para. 4.
[13] In P.S. v. Ontario, which was released in December 2014 while the Appeal was under reserve, this court held, at para. 3, that the provisions of the Mental Health Act 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. The court suspended the declaration of invalidity for 12 months.
ANALYSIS
[14] It is clear that there are live issues to be decided in this matter and that the judge below erred in finding the Appeal to be moot. P.S. v. Ontario proceeded by way of application for habeas corpus and does not speak directly to the reasonableness of the Board’s decision to confirm Mr. Nelson’s civil committal, which was the core issue on the Appeal.
[15] There is no final decision (other than that of mootness) before this court. Hence, there are no rulings or reasoning on any of the substantive issues that Mr. Nelson raised in the Appeal and, therefore, nothing upon which this court can reasonably adjudicate.
[16] This court will ordinarily be reluctant to make any order concerning a matter that has not been the subject of an order appealed from: Schaeffer v. Wood, 2011 ONCA 716, 107 O.R. (3d) 721, at para. 51, appeal to S.C.C. dismissed and cross-appeal allowed on other grounds, 2013 SCC 71, [2013] S.C.R. 1053. While this court did decide the matter in Schaeffer on its merits, it is important to note that the issues in Schaeffer raised questions of pure law and statutory interpretation. There were “no factual issues in dispute before this court”: Schaeffer, at para. 52. By contrast, the Appeal requires that factual determinations be made and questions of mixed fact and law be decided. For example, the Appeal requires a determination of whether the Form 1 was validly executed and whether Mr. Nelson’s ongoing detention violates his Charter rights.
[17] Thus, while this court has jurisdiction to hear the Appeal pursuant to s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the appropriate relief is to remit the Appeal to the Superior Court of Justice for the performance by that court of its statutory review obligation set out in s. 80 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.
DISPOSITION
[18] Accordingly, the appeal is allowed and the Appeal is remitted to the Superior Court of Justice for rehearing, on an expedited basis.
Released: October 13, 2015 (“E.E.G.”)
“E.E. Gillese J.A.”
“I agree. Gloria Epstein J.A.”
“I agree. Lois Roberts J.A.”