Court of Appeal for Ontario

Date: April 27, 2017 Docket: C60397 Judges: Doherty, MacFarland and Rouleau JJ.A.

Between

Mary Ranieri Appellant

and

Dr. Satyadev Nagari Respondent

Counsel

Mary Ranieri, acting in person

Mercedes Perez, appearing as amicus curiae

Janice Blackburn, for the respondent

Heard: April 7, 2017

On appeal from the order of Justice Dale Parayeski of the Superior Court of Justice, dated January 12, 2015, dismissing an appeal from a decision of the Consent and Capacity Board, dated June 25, 2014.

By the Court:

Overview

[1] The respondent Dr. Nagari found the appellant incapable of consenting to anti-psychotic medication to treat her delusional disorder under s. 4(1) of the Healthcare Consent Act, 1996, S.O. 1996, c. 2, Sched. A. The appellant applied for review of the respondent's finding to the Consent and Capacity Board (CCB). The Board unanimously confirmed the respondent's finding of incapacity. The appellant's appeal to the Superior Court of Justice was dismissed, after which she brought the present appeal.

Procedural History

[2] Before turning to the grounds of appeal, some background is necessary. While facing a series of criminal charges, the appellant was admitted to St. Joseph's Health Care Hamilton for an assessment pursuant to s. 16 of the Criminal Code to determine whether she was not criminally responsible (NCR).

[3] On June 27, 2014, the Ontario Court of Justice found the appellant NCR with respect to the outstanding charges and ordered that she be detained at St. Joseph's pending disposition by the Ontario Review Board (ORB).

[4] On July 7, 2014, the appellant was found incapable with respect to certain psychiatric treatment by Dr. Nagari the attending physician at St. Joseph's. It is that finding that was appealed to the CCB decision and that is at issue in this proceeding.

[5] The appellant remained detained at the secure forensic unit of St. Joseph's pursuant to a disposition by the ORB. During this time her various appeals, including an appeal from the NCR verdict and an appeal of the CCB decision, were awaiting hearing.

[6] On October 20, 2016, the Superior Court allowed the appellant's appeal of the NCR verdict and ordered a new trial. The court also granted the appellant judicial interim release pending trial.

[7] The appellant, however, was not released from the secure forensic unit at St. Joseph's because she was immediately detained pursuant to a Form 1 application for psychiatric assessment under the Mental Health Act, R.S.O. 1990, c. M.7. This was followed by a Form 3 certificate of involuntary admission under the Mental Health Act. She has remained in detention since that date.

Analysis

[8] With this background, we turn to the present appeal of the treatment incapacity finding. The appeal was argued by the appellant with the assistance of amicus.

[9] The appellant argued first that the appeal is moot. In her submission, the incapacity finding under appeal is void, having been made while she was wrongfully detained. This is because the incapacity finding was made while she was detained pursuant to a finding of NCR and that finding has now been set aside on appeal.

[10] The appellant also relies on the endorsement of Doherty J.A., made on January 19, 2016, in the course of case management hearings involving the present appeal. In that endorsement, Doherty J.A. noted that the appeal from the finding of incapacity would "become moot if the appeal [of the NCR finding] in the Superior Court is successful."

[11] In our view, the appeal is not moot. The finding of incapacity was made while the appellant was legally detained pursuant to an NCR finding. The fact that, on appeal, this finding was later set aside, does not render unlawful the period of detention while the NCR finding was still legally enforced, nor the finding of incapacity and its independent confirmation by the CCB during the detention.

[12] With respect to the statement by Doherty J.A. that the matter would become moot in the event of a successful appeal, that comment was made at a time when it was assumed that, if the appeal from the NCR finding was successful, the appellant would be released from detention. It was not anticipated that, as has occurred, she would remain detained, this time pursuant to the Mental Health Act rather than the Criminal Code. Had the detention ended following her successful appeal of the NCR finding, the present appeal from the incapacity finding, while not necessarily moot in the legal sense, would likely have become moot in the practical sense in that it would have been difficult if not impossible for the authorities to administer the proposed treatment if the appellant was not detained in the hospital.

[13] With respect to the merits of the appeal, the appellant submits that the finding of incapacity respecting treatment with anti-psychotic medication was unreasonable.

[14] We disagree.

[15] The evidence before the CCB established that the appellant suffers from a delusional disorder, persecutory type. The appellant's testimony clearly showed that although she could entertain the possibility that there are delusional people, she did not consider herself delusional and there was no possibility that some of what she was thinking could be delusional.

[16] The CCB concluded as a result that the appellant's condition was such that she was:

... unable to recognize that she is affected by [the illness'] manifestations and therefore is unable to apply the relevant information to her circumstances, and unable to appreciate the consequences of her decision. She did not recognize the manifestations specific to the treatment proposed which was the delusional beliefs coupled with agitation, aggression and impulsive/volatile responses.

[17] The CCB provided detailed reasons and they fully support its finding that although the appellant could understand relevant information about the various treatments at issue, she was not able to apply it to her own circumstances. We see no basis to interfere.

[18] The appellant further submits that the CCB's decision should be set aside because it, like the NCR finding is based on inadmissible hearsay. She referred this court to the reasons of the Superior Court wherein that court set aside the finding of NCR because it was made, at least in part, in reliance on inadmissible hearsay. This, in her view, undermines the finding of incapacity.

[19] In our view, the setting aside of the NCR finding is unrelated to the CCB's finding. The CCB relied on the evidence presented at the hearing and that evidence, standing alone, fully supported the CCB's conclusion. In any event, the CCB, unlike a criminal court, can rely on hearsay in making a decision.

[20] Amicus made a further submission on behalf of the appellant. She argued that that there is no support for the Board's decision that the appellant is incapable of consenting to treatment with benzodiazepines and anti-cholinergic medication.

[21] This argument was not raised before the Board; nor does it appear to have been raised before the appeal judge. This court will not generally entertain new issues on appeal save in exceptional circumstances: Sawdon Estate v. Sawdon, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 75. In our view there are no such exceptional circumstances in this case.

[22] Finally, the appellant seeks to introduce fresh evidence on the appeal. We have had the opportunity to review those materials and do not consider that they are of any assistance in the determination of the appeal. In addition, no proper motion to admit the fresh evidence was presented. Even if a proper motion had been brought, we would have dismissed it as the proposed evidence does not meet the Palmer test.

[23] For these reasons, the appeal is dismissed.

Released: April 27, 2017

"DD" Doherty J.A.

"Paul Rouleau J.A."

"J. MacFarland J.A."