COURT OF APPEAL FOR ONTARIO

CITATION: Thompson v. Ontario (Attorney General), 2016 ONCA 676

DATE: 20160913

DOCKET: C57803

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Karlene Thompson and Empowerment Council, Systemic Advocates in Addictions and Mental Health

Applicants (Appellants)

and

Attorney General of Ontario

Respondent (Respondent)

Marshall A. Swadron and Sarah M. Latimer, for the appellant Empowerment Council, Systemic Advocates in Addictions and Mental Health

Rochelle S. Fox and Savitri Gordian, for the respondent

Karen R. Spector and C. Tess Sheldon, for the intervener ARCH Disability Law Centre

David Morritt and Vanessa Cotric, for the intervener Canadian Civil Liberties Association

Heard: June 20, 2016

On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated September 12, 2013, with reasons reported at 2013 ONSC 5392

Sharpe J.A.:

[1] Following the tragic murder of Brian Smith, a well-known Ottawa sportscaster, by an individual who suffered from untreated schizophrenia, the Ontario Legislature enacted Brian’s Law (Mental Health Legislative Reform), 2000, S.O. 2000, c. 9.

[2] Brian’s Law expanded the criteria for civil committal and introduced a regime of community treatment orders (CTOs) which provide for community-based treatment and supervision for persons with past psychiatric hospital admissions. The appellants argue that Brian’s Law violates several provisions of the Charter of Rights and Freedoms, with a particular focus on the s. 7 right to liberty and security of the person.

[3] The application judge gave detailed reasons for dismissing the Charter challenge. I am in substantial agreement with the reasons of the application judge and accordingly would dismiss this appeal.

The applicants

[4] The applicant Karlene Thompson has a lengthy history of mental illness. She was detained in a hospital as an involuntary patient and was also the subject of a CTO. She resisted treatment and complained of the adverse side effects she suffered from neuroleptic drugs. Without treatment, her hygiene and ability to function were severely compromised. With treatment, her hygiene and ability to function improved. However, she suffered side effects including dramatic weight gain, excessive salivation and pain in her legs and at her injection sites. She left Canada in 2007 before this application was heard.

[5] The application has been carried forward by the Empowerment Council, Systematic Advocates in Addictions and Mental Health, an advocacy group that represents the interests of individuals who are involved with mental health and addiction services. The Empowerment Council was given public interest standing in April, 2011: Thompson v. Attorney General of Ontario, 2011 ONSC 2023.

[6] The appellants also led evidence of another patient, Amy Ness, who had been the subject of involuntary committal and a CTO. She strongly resisted treatment with neuroleptic drugs, complained of side effects and says that she only agreed to a CTO as a way to avoid involuntary committal. While her symptoms and ability to function improved significantly with treatment, she credited factors other than neuroleptic drugs for any improvement.

The legislation

[7] Before the enactment of Brian’s Law in 2000, individuals could be involuntarily committed for treatment under the Mental Health Act, R.S.O. 1990, c. M.7 if they were apparently suffering from mental disorder that would likely result in serious bodily harm to another person or to themselves (the “Box A” criteria). Charter challenges to the Box A criteria were rejected: C.B. v. Sawadsky, [2005] O.J. No. 3682 (S.C.J.), aff’d on other grounds (2006), 2006 CanLII 34259 (ON CA), 82 O.R. (3d) 661 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. no. 479; Robertson v. Canada (A.G.), 2000 CarswellOnt 318 (S.C.J.); Starnaman v. Penetanguishene Mental Health Centre, [1994] O.J. No. 1958 (Gen. Div.), aff’d (1995), 1995 CanLII 1518 (ON CA), 24 O.R. (3d) 701 (C.A.).

[8] Brian’s Law expanded the grounds for involuntary committal. It added s. 15(1.1), known as the “Box B” criteria. These allow for a 72 hour restraint and examination period in a psychiatric facility where the physician has reasonable cause to believe that the person “is likely to suffer substantial mental or physical deterioration or serious physical impairment” if the person:

(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person; and

(b) has shown clinical improvement as a result of the treatment,

(c) is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one.

[9] The person must also be incapable of consenting to treatment and the consent of the person’s Substitute Decision Maker (“SDM”) must be obtained.

[10] Section 16(1.1) allows a Justice of the Peace to order an assessment where criteria mirroring those set out in s. 15(1.1) are met.

[11] Section 20(1.1) expands the grounds for involuntary admission to a psychiatric facility if the physician, having examined the person, is of the opinion that criteria mirroring those set out in s. 15(1.1) are met, provided the person is incapable of consenting to treatment, the consent of the person’s SDM has been obtained, and the person is not suitable as an informal or involuntary patient. The Act provides that an involuntarily admitted person is entitled to be notified (i) of his or her right to ask the Consent and Capacity Board (“CCB”) to review the matter and (ii) that he or she has the right to counsel and advice from a rights adviser.

[12] Prior to the enactment of Brian’s Law, there was no provision for any alternate and less restrictive form of compulsory treatment for individuals who met the criteria for involuntary committal. The second innovation in Brian’s Law was to introduce CTOs. The purpose of a CTO, as described in s. 33.1(3), is to provide a person suffering from serious mental disorder with a comprehensive plan of treatment in the community and in a less restrictive setting than detention in a mental health facility. CTOs are intended to remedy the “revolving door” problem of individuals who are admitted for treatment, improve with treatment, but upon release stop treatment, care or supervision, relapse and are then re-admitted as involuntary patients.

[13] Section 33.1(4) sets out the criteria for a CTO:

(a) during the previous three-year period, the person,

(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

(ii) has been the subject of a previous community treatment order under this section;

(b) the person or his or her substitute decision-maker, the physician who is considering issuing or renewing the community treatment order and any other health practitioner or person involved in the person’s treatment or care and supervision have developed a community treatment plan for the person;

(c) within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts communicated to the physician, that,

(i) the person is suffering from mental disorder such that he or she needs continuing treatment or care and continuing supervision while living in the community,

(ii) the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15 (1) or (1.1) where the person is not currently a patient in a psychiatric facility,

(iii) if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person,

(iv) the person is able to comply with the community treatment plan contained in the community treatment order, and

(v) the treatment or care and supervision required under the terms of the community treatment order are available in the community;

(d) the physician has consulted with the health practitioners or other persons proposed to be named in the community treatment plan;

(e) subject to subsection (5), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996.

[14] The patient or his or her SDM must consent to the CTO and undertake to comply with the CTO. If the patient fails to comply, the physician may issue an order for the patient to be brought in by the police for examination. To do so, the physician must have reasonable cause to believe that the patient continues to meet the criteria for a CTO and that reasonable steps have been taken to find the patient and inform him or her of the possible consequences of non-compliance. A CTO lasts for six months and may be renewed on notice to the patient. The legislation provides for legal advice to be given to the subject of a CTO before the order is made or renewed.

The Position of the Appellants

[15] The focus of the appellants’ constitutional challenge is on two central features of the legislation. First, the appellants challenge the added “Box B” criterion: “likely to suffer substantial mental or physical deterioration or serious physical impairment” for involuntary committal. Second, the appellants challenge the CTO regime as an unjustifiable form of compulsory treatment.

[16] Before the application judge, the appellants argued that the purpose of the legislation was protection of the public. That purpose, they argued, could not survive scrutiny as it is based upon a false stereotype that persons suffering from mental illness are prone to violence and pose a higher risk to public safety. The application judge agreed that there was no evidence to support the proposition that those suffering from mental disorder pose a disproportionate threat to public safety. However, he rejected the contention that public safety was the sole purpose of the legislation. He found that a review of the legislative debates, the language of the Act and the criteria for involuntary admission and CTOs made it clear that that the government’s purpose was also to provide an improved treatment regime for all seriously mentally ill persons.

[17] On appeal, the focus of the appellants’ attack on the legislation is that it constitutes an unjustifiable extension of forced treatment with neuroleptic medication. In making that submission, they rely on the evidence from their expert witnesses, Prof. Geoffrey Reaume, an historian and professor of critical disability studies, and Prof. David Cohen, a professor of social work. They are of the opinion that anti-psychotic medication is not effective as a treatment for mental disorder and that its side effects are severe. The appellants’ experts also maintain that coerced treatment undermines the patient’s dignity and sense of self-worth and can undermine recovery.

[18] The appellants also rely on studies doubting the effectiveness of CTOs, two examining similar schemes in the United States, and another, the Dreezer Report, done in Ontario pursuant to s. 33.9 of the Act (which requires periodic reviews of the effectiveness of CTOs). That study concluded that “[i]t is clear that CTO clients have, overall, benefited greatly from the CTO program” but cautioned that it was not clear that the benefits were attributable to the legal restrictions inherent in CTOs. The Report suggested that satisfactory services could be provided in other ways and that absent some evidence to demonstrate that legal compulsion was needed, “there is no justification to continue the program in its current form in the long term”.

[19] The evidence led by the appellants was challenged and countered by evidence led by the Attorney General. Dr. Richard O’Reilly, an experienced clinical psychiatrist, researcher and author of scholarly papers on many psychiatric subjects – including the effectiveness of CTOs in treating patients with mental illness – agreed that neuroleptic medications only target symptoms and do not provide a cure and that some patients do not benefit from the treatment. However, Dr. O’Reilly maintained that for many people, antipsychotic medication reduces the intensity of their symptoms, reduces the risk of relapse and suicide, allows for other forms of intervention and makes it possible to treat successfully a large number of patients with schizophrenia and other psychotic illnesses. Dr. O’Reilly recognized that, as with most medications, there are risks and benefits associated with antipsychotic drugs. In his opinion, however, antipsychotic drugs are properly prescribed by physicians because the benefits outweigh the risks and without treatment individuals who suffer from mental illness would be distressed, dysfunctional, and have a high risk of adverse outcomes such as suicide.

[20] The appellants contend that the application judge erred in law by failing to make findings to resolve significant differences between the expert witnesses. They focus on certain comments the application judge made as to the limits of what he was prepared to decide. The application judge concluded, at para. 89, that there is a significant disagreement in the mental health professional community as to the effectiveness of antipsychotic or neuroleptic treatment and as to the efficacy of community based treatment that is based upon coercion. He added, at paras. 90-91:

The only conclusions that can be fairly drawn from the conflicting empirical studies that are contained in the record before me are (1) the applicants have presented a compelling case that the impugned amendments enacted by Brian’s Law may not be working as intended and may be causing more harm than good; and (2) the Minister of Health and Long-Term Care would be well advised to consider a comprehensive review of the impact and effectiveness of both the Box B provisions and the CTO regime.

But neither of these conclusions can support a finding of overbreadth, arbitrariness or gross disproportionality. Indeed, the case law is clear that where the evidence is inconclusive and the efficaciousness of a legislative remedy is difficult to measure, it is for the legislature and not the courts, to decide upon the appropriate course of action.

[21] The application judge then cited Cochrane v. Ontario (Attorney General), 2008 ONCA 718, 92 O.R. (3d) 321, at paras. 26-29, leave to appeal to S.C.C. refused 33067 (June 11, 2009), where this court stated:

[W]here the risk of harm or the efficaciousness of Parliament's remedy is difficult or impossible to measure scientifically it is for the legislature, not the courts, to decide upon the appropriate course of action, provided there is evidence of a “reasoned apprehension of harm”. It was not the role of the application judge to make detailed factual findings as that would lead to “micromanagement of Parliament's agenda”. Her task was rather to apply the “relevant constitutional control”; namely, “the general principle that the parliamentary response must not be grossly disproportionate to the state interest sought to be protected”: see Malmo-Levine, at para. 133.

[22] The appellants say that the application judge erred by failing to make the critical findings on the disputed expert evidence and that had he done so, he would have found that forced treatment with neuroleptic medication is ineffective and that it causes more harm than good. Those findings, say the appellants, would be fatal to the constitutional validity of the legislation.

[23] The appellants’ position is supported by two interveners, the Canadian Civil Liberties Association and the ARCH Disability Law Centre.

Issues

[24] The appellants raise three issues which I will address in the following manner:

1. Did the application judge err by failing to make adequate findings on the expert evidence and did he misapply the principles of fundamental justice?

2. Did the application judge err in his s. 7 analysis by:

a. Failing to properly consider the purpose of the legislation;

b. Improperly importing s. 1 considerations into the s. 7 analysis;

3. Did the application judge err by failing to find Brian’s Law violates ss. 9, 10, 12 and 15 of the Charter?

Analysis

(1) Did the application judge err by failing to make adequate findings on the expert evidence and did he misapply the principles of fundamental justice?

(a) What findings was the application judge required to make?

[25] An application judge need not make conclusive findings on every factual issue raised by the parties or that arises from the evidence they adduce. A failure to make a factual finding warrants appellate intervention only where it “gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion”: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 15. The application judge’s refusal to make the findings of fact urged by the appellants does not meet this standard. In my view, the application judge considered all of the evidence and made sufficient findings to dispose of the legal issues before him. He properly refused to make definitive findings on conflicting evidence relating to matters that were not germane to the legal issues he was required to resolve.

[26] As I have noted, the appellants led evidence indicating that antipsychotic or neuroleptic medication may not be effective, while the Attorney General led evidence that these medications are beneficial. The appellants say that the application judge erred in law by failing to make definitive findings to resolve that difference of opinion. The appellants place particular emphasis upon comments the application judge made in his reasons relating to the debate in the mental health professional community as to the effectiveness and use of antipsychotic or neuroleptic medication. The application judge noted, at para. 89, that there was “considerable disagreement in the mental health professional community and the relevant scientific literature about the effectiveness of modern psychiatric practices in the treatment of serious mental illness”. He also observed at para. 89 that there is “significant disagreement about the efficacy of a community treatment regime that is based on coercion” and at para. 90 that the CTO regime “may not be working as intended and may be causing more harm than good” and that the minister “would be well advised to consider a comprehensive review of the impact and effectiveness of both the Box B provisions and the CTO regime”.

[27] To consider the relevance of these comments and the appellants’ arguments, it is necessary to put the issue of expert evidence and the findings the application judge was required to make into proper legal perspective. It is for that reason that I address the appellants’ ground of appeal relating to the misapplication of the principles of fundamental justice together with the issue of the adequacy of the findings relating to the expert evidence.

[28] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, the case most heavily relied upon by the appellants, the court stated, at para. 49, that the first instance judge is required to evaluate and weigh expert evidence as to social or legislative facts “in order to arrive at the conclusions of fact necessary to decide the case” [emphasis added].

[29] What conclusions of fact were necessary to decide this case?

[30] Section 7 of the Charter provides: “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”.

[31] A person claiming that a law is inconsistent with s. 7 must show that: (1) the law limits the person’s right to life, liberty or security of the person; and (2) the limits are not in accordance with the principles of fundamental justice.

[32] The Attorney General conceded that the impugned provisions of Brian’s Law limited the liberty and security of the person of mental health patients who were subject to involuntary commitment or CTOs. The contentious and determinative issue was this: could the appellants demonstrate that the limit on liberty and security of the person was in not accordance with the principles of fundamental justice?

[33] In my view, the application judge quite properly focused on and made the required factual findings to resolve the critical issues that arose on the appellants’ s. 7 challenge, namely, were the impugned provisions of Brian’s Law arbitrary, overly broad, or grossly disproportionate.

(b) Arbitrariness

[34] Bedford, at para. 111, holds that a law will be arbitrary if there is no “rational connection between the object of the measure that causes the s.7 deprivation and the limits it imposes on life, liberty, or security of the person…A law that imposes limits on these interests in a way that bears no connection to its objective arbitrarily impinges on those interests” [emphasis in original]. In Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, the Court explained, at para. 83, that “an arbitrary law is one that is not capable of fulfilling its objectives. It exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law.”

[35] With respect to arbitrariness, the application judge found, at para. 98, that “[i]t cannot be reasonably said that the impugned provisions bear no relation to, or are inconsistent with” the public health and public safety purposes of the legislation. He pointed out, at para. 99, that there is evidence showing that application of the Box B criteria facilitates faster treatment for persons incapable of consenting to treatment with recurrent or on-going mental illness. Box B can only be applied where past treatment has resulted in clinical improvement and where substantial mental or physical deterioration would likely arise without treatment. The application judge found that without the Box B criteria, physicians could not assess or hospitalize patients until they deteriorated to the point where they posed a risk of serious bodily harm to themselves or to others. The application judge also found that the Box B criteria increase prospects for a better long-term outcome by minimizing prolonged delays in receiving needed treatment.

[36] Likewise, he found, at para. 100, the CTO scheme rests on similarly strict criteria, requires the consent of the individual or the SDM, and imposes procedural protections to ensure respect for the rights of the individual.

(c) Overbreadth

[37] Legislation that is drafted more broadly than is necessary to attain its objective and thereby impinges upon a protected right or freedom may be struck down under section 7 of the Charter on grounds of overbreadth. In Bedford, the Supreme Court stated, at para. 113, “overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effects in others.”

[38] At para. 94, the application judge found that there are individuals who suffer from mental illness who respond to treatment while in hospital but who repeatedly stop taking medication after discharge. These individuals relapse, experience substantial mental and physical deterioration, and are readmitted to hospital. The application judge was satisfied by the evidence that the Box B criteria can be applied to this specific group by trained medical professionals on an individualized basis in a way that avoids both “stereotypical” assumptions about those who suffer from mental illness and the problem of overbreadth.

[39] At para. 95, the application judge found that the community treatment plan, which underlies the CTO, is individualized and tailored to the person’s circumstances. He found that the CTO provisions set out strict criteria as to when a CTO may be issued, and include significant procedural and substantive protections. The CTO provisions ensure that persons subject to a CTO and their SDMs (where applicable) receive rights advice and a right to retain and instruct counsel before a CTO is issued. The purpose of this is to ensure that they have timely rights advice about legal options including, for example, seeking review of findings of incapacity to consent to treatment or involuntary admission.

[40] The application judge observed at para. 97 that while there was some evidence to the contrary, CTOs do bring stability to the lives of many individuals. Without antipsychotic medication Ms. Thompson’s mental state fluctuated and when she consistently failed to take medication, it substantially deteriorated. By contrast, with antipsychotic medication, Ms. Thompson had appropriate and organized thought content, she did not express hallucinations or delusions, and she was engaged with her CTO Team.

[41] The application judge also found that since being placed on a CTO, Ms. Ness had not been hospitalized, she was volunteering in the community, she had a job, and she was involved in the arts. He pointed out, at para. 104, that the Consent and Capacity Board found it was likely that the CTO and medication were providing some benefit to her which allowed her to have a home and a job and to engage in activities which supported her wellness.

[42] Contrary to the submission made by the intervener Canadian Civil Liberties Association (CCLA), the application judge’s finding that CTOs “may not work for all individuals” does not establish overbreadth. Overbreadth requires that some subset of liberty infringements authorized by the impugned law be unconnected to the law’s purpose. The mere fact that the law fails to fully achieve its purpose (here, “improved treatment”) in some instances does not establish that, in those instances, the liberty infringement was unconnected to the law’s purpose. In my view, the application judge had a proper foundation upon which he could conclude that even if antipsychotic or neuroleptic medication and forced treatment does not always work, the strict criteria of this legislation ensures to the extent possible that it will only be applied when, in the opinion of a physician, its effect will be beneficial in terms of health and public safety.

(d) Gross disproportionality

[43] In Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 at para. 133, the Supreme Court of Canada stated: “Gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest.” In Bedford, at para. 120, the Court pointed out that “[t]he rule against gross disproportionality only applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure.”

[44] The application judge recognized, at paras. 97 and 105, that like any therapeutic intervention, CTOs may not work for all individuals. He found, however, that research demonstrated that persons placed on CTOs are significantly less likely to be the victims or perpetrators of violence, or to be arrested or to become homeless. They also experience better follow-up with clinical services and significantly increased contact with mental health services after the CTO expires. He found, at paras. 97 and 105, that while some patients can be treated in the community voluntarily without a CTO after discharge from hospital, many do not appreciate that they have a mental illness and refuse to take treatment or to follow-up with mental health services. CTOs ensure that people who do not recognize the need for treatment stay connected with mental health services.

[45] While the application judge did comment on the “considerable disagreement” in the mental health professional community and the relevant scientific literature about the habitual use of antipsychotic/neuroleptic medications, he concluded, at para. 102, based on the evidence, that for many people, antipsychotic drugs: (i) reduce the intensity of symptoms (allowing other treatment interventions to be effective); (ii) shorten the exacerbations of illness allowing people to reach and sustain psychosocial milestones; (iii) reduce the risk of relapse; and (iv) reduce the risk of suicide. He concluded, at para. 102, that the evidence in the record shows that “antipsychotic drugs have made it possible to successfully treat large numbers of patients with schizophrenia and other psychotic illnesses, which permits discharge from institutional care”. Given the individually tailored nature of the legislative regime and the significance of the public health objectives, it cannot be said that the legislative response to the public health problem is extreme, let alone so extreme as to be grossly disproportionate.

(e) Principles of Fundamental Justice: Conclusion

[46] The application judge’s factual findings correspond with what I would describe as the most striking feature of the Box B criteria and the CTO scheme, namely, that these provisions can only be invoked following a highly individualized assessment and consideration of the patient’s specific condition and treatment needs. That assessment is directly and intimately connected with the public health and public safety goals of the legislation. The legislation specifically targets individuals whose condition is such that they will, in the opinion of a physician, benefit from the application of the law to their situation in order to avoid serious mental deterioration. The patient must be someone who has suffered from mental illness in the past, who has responded to treatment, who now suffers from the same mental illness and is to be given the same treatment. In the case of a CTO, the individual must also satisfy the “revolving door” criteria of previous hospital admissions and must consent to the order personally or through a SDM. These criteria and the expert individualized assessment they require focus on factors that minimize if not eliminate any risk of arbitrary, overly broad or grossly disproportionate application of this law.

[47] The application judge’s observations regarding the uncertain state of knowledge regarding neuroleptic medication and forced treatment must be read in the light of his arbitrariness, overbreadth and gross disproportionality analysis. He correctly focused his consideration of the conflicting expert evidence on those issues. They were the issues he had to decide to resolve the case. There was, he found, a proper foundation in the evidence from which the legislature could act to deal with a perceived problem of public health provided it did not violate the relevant constitutional controls of arbitrariness, overbreadth and gross disproportionality. And, as explained in Bedford, at para. 90, it is when considering the principles of fundamental justice that “the question of deference arises”. The applicant bears the onus of establishing the limitation of a Charter right. The application judge found that the contradictory evidence in the record was insufficient to support a finding of arbitrariness, overbreadth or gross disproportionality. His comment that the appellants had made out a “compelling case” for a ministerial review of the impugned legislation merely expressed the limitations of his judicial function in the absence of sufficient evidence of a Charter breach.

[48] The application judge quite properly refused to accept the appellants’ invitation to engage in a general inquiry into the wisdom of this legislation. There is a reasonable foundation in the evidence for the legislature to act to deal with an important issue of public health and safety and for the application judge to conclude that the legislature did not overstep the limits on personal liberty mandated by the Charter.

[49] Accordingly, I would reject the submission that the trial judge erred by failing to make the factual findings necessary to decide the issues raised in this case or that he misapplied the principles of fundamental justice.

(2) Did the application judge err in his s. 7 analysis by:

(a) Failing to properly consider the purpose of the legislation;

(b) Improperly importing s. 1 considerations into the s. 7 analysis;

(a) Purpose of the legislation

[50] The appellants submit that the public safety purpose of Brian’s Law is fatal to its constitutional validity as there is no meaningful correlation between mental illness and violence. As I have noted, the application judge rejected this argument having found that the purpose of the Box B criteria and the CTO regime go “well beyond public safety and explicitly concern themselves with treatment issues” and aim to “provide a community-based treatment plan for ‘revolving door’ patients that fall within the prescribed criteria”.

[51] I agree with the Attorney General that to the extent the legislation does have a public safety purpose, that purpose cannot be viewed in isolation. It must be seen as part and parcel of an integrated scheme that promotes both improved treatment and public safety. The legislation does not rest upon unproven stereotypes or assumptions about mental health and violence. Its dual purpose of promoting health and public safety is achieved through a carefully balanced scheme that requires a highly specific and individualized assessment of the individual’s mental health history, treatment needs and the risk that individual poses to him or herself and the public at large.

[52] I do not agree with the appellants’ submission that the application judge’s reasons run afoul of the improper purpose rule articulated in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at paras. 80-88. The application judge did not find, as the appellants suggest, that the impugned law had two purposes, one proper and the other improper, and conclude that the proper purpose of improved treatment remedied the improper purpose of ensuring public safety. Rather, he found that the impugned provisions rest on the balanced and appropriate integration of these two purposes together.

[53] The CCLA argues that that “improved treatment” cannot be a valid legislative objective because it is coerced. Although a CTO can only be made on the consent of the individual or the individual’s SDM, the CCLA argues that there is no real consent as the only alternative to a CTO is involuntary committal.

[54] In my view, this argument must be rejected for three reasons. First, coerced treatment may be the effect of the law in certain circumstances but it is not its purpose which the application judge properly found to be improved treatment as well as public safety. When characterizing a law for the purpose of s. 7 analysis, “the articulation of the objective should focus on the ends of the legislation rather than on its means [and] be at an appropriate level of generality”: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 26. I reject the CCLA’s characterization of the law’s purpose.

[55] Second, there is no constitutional ban on coerced treatment for those who lack the capacity to make treatment decisions for themselves. It is well established that where treatment would benefit an individual and the individual is incapable of making a treatment decision because of mental illness, the state has an obligation to provide care and to exercise its parens patriae authority: Fleming v. Reid (1991), 1991 CanLII 2728 (ON CA), 4 O.R. (3d) 74 at p. 87.

[56] Third, if the individual meets the criteria for involuntary committal, I fail to see how the legislature can be faulted for offering the consensual CTO as a less restrictive option. Accordingly, I reject the argument that consent to a CTO is effectively coerced.

(b) Section 1

[57] The appellants submit that the application judge erred by importing s. 1 considerations into his s. 7 analysis contrary to the Supreme Court’s directions in Bedford and Carter. They argue that his arbitrariness, overbreadth and gross disproportionality analysis, which relied on the tailored and individualized application of the law by trained medical professionals, improperly required the appellants to disprove the efficacy of the law or disprove that any benefits might flow from the law.

[58] I see no merit in this submission. The application judge was entirely justified in relying on the individualized nature of the regime to negate the claims of arbitrariness and overbreadth. Arbitrariness and overbreadth are, as the Supreme Court noted in Bedford (para. 108), directed against the absence of a connection between the purpose of the law and its effects on life, liberty, or security of the person. This requires an analysis of the means that the law uses to achieve its purpose: Bedford, para. 105. The individualized nature of the treatment is a relevant means that the application judge had to consider.

[59] Unlike arbitrariness and overbreadth, gross disproportionality considers the relationship between the deprivation and the objective or purpose of the law, rather than its means. “The rule against gross disproportionality applies in extreme cases where the seriousness of the deprivation is totally out of sync with the objective of the measure”: Bedford, para. 120. The effect on the rights claimant, compared with the objective of the law, must be “entirely outside of the norms accepted in our free and democratic society”: Bedford, para. 120. This analysis requires a judge to hold in view both the effect on the rights claimant and the objective of the law and, using the norms of our free and democratic society, evaluate whether the seriousness of the deprivation is out of all proportion to the law’s objective.

[60] In my view, the application judge’s assessment of s. 7 was entirely consistent with the approach mandated in Bedford. It did not, as the appellant submits, import s.1 considerations. As the application judge correctly found, the requirement for a tailored and individualized assessment by a trained medical professional was key to the arbitrariness and overbreadth analysis. When that feature of the law was considered, it was apparent that the appellants could not demonstrate that the limitations it imposed on their liberty and security of the person violated these principles of fundamental justice.

[61] With respect to gross disproportionality, it could not be said that any deprivation of the right to liberty or security of the person was “totally out of sync” with the law’s objectives. The application judge reached these conclusions without importing considerations that properly belong to the s. 1 analysis.

(3) Did the application judge err by failing to find Brian’s Law violates ss. 9, 10, 12 and 15 of the Charter?

[62] The focus of the appellant’s attack on Brian’s Law rests on s. 7 and their arguments relating to ss. 9, 10 and 12 of the Charter largely replicate their s. 7 arguments.

[63] I agree with the application judge that given the highly individualized and structured assessment of the individual, neither involuntary admission nor a CTO amounts to arbitrary detention under s. 9.

[64] I also agree with his conclusion that given the extensive rights notifications and procedural protections in the legislation, there is no infringement of the s. 10(a) right to be informed promptly of the reasons for arrest or detention or the s. 10(b) right to retain and instruct counsel.

[65] I agree as well with his conclusion that as the law survives scrutiny under s. 7, it cannot amount to cruel and unusual treatment or punishment under s. 12.

[66] Finally, I agree with the application judge that Brian’s Law does not violate s. 15(1) as discrimination on the grounds of mental disability. The individualized consideration of the individual’s clinical history, past and current mental status and the likelihood of serious harm to him or herself or to others or substantial mental or physical deterioration is the antithesis of discrimination on the ground of presumed group or personal characteristics.

[67] I do not accept ARCH’s submission that that the law is discriminatory because it rests upon invalid stereotypical assumptions about the lack of capacity of mental health patients to make treatment decisions for themselves. Both the Mental Health Act and the Heath Care Consent Act, 1996, S.O. 1996, Ch. 2 Sched. A, give priority to the patient’s views and require an individualized assessment of the patient’s capacity to make treatment decisions before the patient’s views can be overridden. Nor do I accept ARCH’s contention that individualized assessment cannot be relied upon because clinical decision making may itself be infected by discrimination. That submission would require a firm factual foundation and the court below made no such findings.

Disposition

[68] Accordingly, I would dismiss the appeal. The Attorney General does not seek costs of the appeal.

[69] The application judge awarded costs of $100,000 to the appellants at first instance despite their lack of success because the appellants are public interest litigants, the issues are important and advance funding would have been granted: 2013 ONSC 6357. In my view, the situation is different on appeal. The applicants had a full hearing before the application judge who gave thorough reasons with which I substantially agree. I am not persuaded that there is any basis to award further costs to the appellants at this stage.

Released: September 13, 2016

“Robert J. Sharpe J.A.”

“I agree P. Lauwers J.A.”

“I agree B.W. Miller J.A.”