BARRIE COURT FILE NO.: 11-160

DATE: 20120213

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

RODNEY NELSON Applicant – and – HER MAJESTY THE QUEEN and THE ATTORNEY GENERAL OF ONTARIO and ONTARIO CONSENT AND CAPACITY BOARD and WAYPOINT CENTRE FOR MENTAL HEALTH CARE Respondents

Self-represented

H. Schwartz, for Her Majesty the Queen and The Attorney General of Ontario
J.P. Thomson for Waypoint Centre for Mental Health Care

HEARD: February 3, 2012

REASONS FOR DECISION

QUINLAN J.

OVERVIEW

[ 1 ] The applicant, Rodney William Nelson, brings an application for habeas corpus with certiorari in aid, seeking relief from his illegal arbitrary detention at Waypoint Centre for Mental Health Care (“Waypoint”).

[ 2 ] The application alleges violations of his rights under the Canadian Charter of Rights and Freedoms. He seeks his release from custody by way of absolute discharge or discharge and a section 810 Criminal Code of Canada recognizance.

BACKGROUND

[ 3 ] The applicant was first admitted to Waypoint in 1999 after being released on his warrant expiry date, having completed his full fourteen-year sentence for a number of offences that included armed robbery, sexual assault and gross indecency. In 2000, the applicant was released into the custody of police and immediately charged with a number of historical offences, offences that were based on events that had occurred before his earlier incarceration.

[ 4 ] Following a jury trial in or about March 2001, the applicant was found guilty of assault and not guilty of sexual assault, choking, forcible confinement and extortion. He was sentenced to five years in prison with credit for 18 months pretrial custody. The applicant advised that both the verdict and the appeal were upheld by the Ontario Court of Appeal. The applicant served the entire sentence until warrant expiry date in March 2005.

[ 5 ] Within days of the applicant’s scheduled release date, on March 10, 2005, a Form 1 under the Mental Health Act (“MHA”), Application by Physician for Psychiatric Assessment, was completed by Dr. J. Hillen at Kingston Penitentiary. Dr. Hillen certified that he had reasonable cause to believe that the applicant “ has behaved or is behaving violently towards another person” and “ has caused or is causing another person to fear bodily harm to him or her” [underlined in original]. Dr. Hillen noted that the applicant, amongst other things, denied any history of sexual interest in children and stated that he would not attend any psychiatric assessment unless he believed it necessary or it was ordered by a court. Dr. Hillen was of the opinion that the applicant was apparently suffering from mental disorder of a nature or quality that likely will result in serious bodily harm to another person.

[ 6 ] The applicant understood that he was being taken to court in Sault Ste. Marie for the purpose of an application for a recognizance under section 810 of the Criminal Code of Canada. However, the applicant was instead taken to the Mental Health Centre - Penetanguishene, now known as Waypoint.

[ 7 ] At Waypoint on March 11, 2005, Dr. R. Fleming conducted an examination of the applicant. After doing so he completed a Form 3 under the MHA, Certificate of Involuntary Admission. Dr. Fleming certified that he was of the opinion that the applicant suffered from mental disorder of a nature or quality that likely will result in serious bodily harm to another person.

[ 8 ] The applicant has remained an involuntary patient at Waypoint since then. The applicant has had a number of hearings before the Consent and Capacity Board (“CCB”). Decisions of the CCB rendered in August 2010, April 2011 and December 2011 were before me.

[ 9 ] At each of the hearings, the CCB concluded that the applicant suffers from a mental disorder of a nature or quality that likely would result in serious bodily harm to another person unless he remains in hospital.

[ 10 ] It is because of the following comment made in the CCB’s Reasons for Decision of April 8, 2011 that the applicant has come to believe that he is being illegally detained without any legal recourse through a hearing before the CCB:

Mr. Mudry’s search for a remedy to R.N.’s continued detention does not lie at a Consent and Capacity hearing. This Board derives its jurisdiction by statute, and at a Form 16 or Form 17 hearing, the scope of its inquiry and decision-making process is limited to the provisions of the MHA.

POSITIONS OF THE PARTIES

Position of the Applicant

[ 11 ] The applicant has two main complaints:

a. He has been subjected to “psychiatric gating”, that is the involuntary admission of a person into a psychiatric hospital in accordance with mental health legislation upon that person’s impending release from a correctional facility. At the time of the psychiatric gating, he was serving a sentence for assault, not for a sexual offence against a child. The basis for the Form 1 related to his sexual offence against a child. The Ontario Court of Appeal decision in Starnaman v. Penetanguishene Mental Health Centre [1] is distinguishable. The applicant had one previous conviction for a sexual offence against a child that arose from a finding of guilt some 30 years ago. Not only did the applicant in Starnaman have a significant number of previous convictions for assaults on young girls, but there was a triggering event that formed the sole basis for the Form 1.

b. He has been subjected to “double jeopardy”: he has already been punished and sentenced for his offence. A previous conviction is being used as a basis to continually detain him.

Position of the Respondent Waypoint

[ 12 ] The detention of the applicant is not unlawful. He has been lawfully deprived of his liberty under the MHA. Detention under the MHA is on the basis that the applicant suffers from a mental disorder likely to cause serious bodily harm. Serious bodily harm includes psychological harm. The applicant has been diagnosed with paraphilia and antisocial personality disorder, both mental disorders in the Diagnostic and Statistical Manual (“DSM IV”).

[ 13 ] There are clear exit strategies available to the applicant that, if successfully completed, could result in a transfer to a less restrictive setting or the rescission of the Certificate of Involuntary Admission.

[ 14 ] If the applicant is dissatisfied with the decision of the CCB, his route is through appeal to a single judge of the Superior Court of Justice.

Position of the Attorney General

[ 15 ] The CCB does not have the jurisdiction to deal with an application for breach of Charter rights but is limited to a consideration of whether the criteria are met under the MHA for continued detention. The CCB also has the power to order transfer to a less secure institution. Any challenge of a decision of the CCB must be by way of appeal to a single judge of the Superior Court of Justice. Habeas corpus does not lie to review a decision of the CCB.

[ 16 ] The MHA and the Criminal Code have different objectives.

[ 17 ] The constitutionality of civil committal following a criminal sentence has been upheld by the Ontario Court of Appeal. Starnaman is a complete answer to the complaints of the applicant of psychiatric gating and double jeopardy. The application should be dismissed.

ISSUES AND ANALYSIS

Is the applicant being unlawfully detained?

[ 18 ] The writ of habeas corpus is used to secure the release of an individual who is being unlawfully deprived of the right to liberty of the person. [2] Habeas corpus is only available to secure the liberty of someone who is detained or in custody unlawfully. [3]

[ 19 ] A Form 1 under the MHA, Application by Physician for Psychiatric Assessment, was executed. Any physician may execute a Form 1. Any “person” can be subject to a Form 1. [4] The Form 1 is not an assessment but an examination or observation seeking a full assessment. [5]

[ 20 ] Pursuant to the Form 1, the applicant was examined by a psychiatrist within the required timelines. That psychiatrist was of the opinion that the applicant suffered from mental disorder of a nature or quality that likely will result in serious bodily harm to another person. The psychiatrist, accordingly, executed a Form 3 under the MHA, Certificate of Involuntary Admission.

[ 21 ] On execution of the Form 3, the detained patient “or anyone else on his behalf” may apply to the CCB “to inquire into whether or not the prerequisites set out in the MHA for admission or continuation as an involuntary patient are met.” [6] The MHA requires civil committal hearings to be adjudicated by at least a three-person panel, including legal, psychiatric and lay members. On an application to review a Form 3, the CCB “shall promptly review the patient’s status to determine whether or not the prerequisites set out in this Act for admission as an involuntary patient continue to be met at the time of the hearing of the application”. [7] The CCB may confirm the committal if the prerequisites are met at the time of the hearing and shall revoke the committal if they are not. Parties to the hearing have a right to appeal the CCB’s decision to a single judge of the Superior Court of Justice on a question of law, or fact, or both. [8] By reason of amendments to the MHA introduced in 2010, an involuntary patient can apply for a transfer from one psychiatric facility to another. [9]

[ 22 ] The applicant has had a number of hearings, most recently on December 21, 2011, before the CCB. The CCB has repeatedly concluded that the applicant suffers from a mental disorder of a nature or quality that likely would result in serious bodily harm to another person unless he remains in hospital. The CCB has also concluded that the criteria for ordering a transfer to another psychiatric facility were not established and the CCB declined to order a transfer.

[ 23 ] I accept the position of the respondent Waypoint that if the CCB had concluded that the applicant was being arbitrarily detained, it had the jurisdiction to vacate his Certificate of Renewal. There is discretion to a revoke a Form 3 even where all the committal criteria are satisfied at the time of the hearing. The CCB is not required to confirm an involuntary patient’s status even where it determines that the prerequisites are met at the time of the hearing. A Form 3 Certificate of Involuntary Admission shall be rescinded where the CCB determines that the prerequisites for that admission are not met at the time of hearing. [10]

[ 24 ] I find that the applicant has been lawfully deprived of his liberty under the MHA. If the applicant takes issue with the decision of the CCB that he continues to meet the criteria under the MHA or its decision not to transfer, the applicant’s remedy is by way of appeal of the CCB’s decision to the Superior Court of Justice.

Does the applicant’s civil committal following completion of his criminal sentence breach the Charter?

[ 25 ] This issue involves a consideration of whether “psychiatric gating” offends the applicant’s Charter rights or whether the applicant has been subjected to “double jeopardy” as a result of his continued detention as an involuntary patient under the MHA after his completion of his sentence.

[ 26 ] Similar to Starnaman, the applicant is a pedophile with a long criminal record and a history of sexual offences victimizing children. The applicant has been described as showing “great versatility in victims”, [11] having also victimized adult females and an adult male. He has had violent sexual fantasies.

[ 27 ] The applicant has been diagnosed with paraphilia, including sexual sadism and pedophilia. He has been diagnosed with antisocial personality disorder with psychopathy. He has been described as impulsive, egocentric and manipulative. He has shown a lack of remorse for his victims. He has a significant adult criminal record. He has exhibited conduct disordered behaviour.

[ 28 ] The Court of Appeal in Starnaman has found that the practice of “psychiatric gating” does not offend section 7 or section 12 of the Charter. As in that case, I can find nothing in the record to support that any of the psychiatrists at Waypoint were involved with the request for or had anything to do with the timing of the Form 1 Application by Physician for Psychiatric Assessment.

[ 29 ] The Form 1 application was completed at Kingston Penitentiary. All subsequent determinations, however, including the Form 3 Certificate of Involuntary Admission, were made by persons with no connection to the penal system. The Form 3 was conducted in hospital at Waypoint. There is no evidence to support a conclusion that the involuntary admission process was commenced to further a penal purpose.

[ 30 ] The applicant’s attempt to distinguish his case from Starnaman fails. Even though I do not find that Starnaman requires a “triggering” event for the execution of a Form 1, the refusal of the applicant to attend a psychiatric assessment unless he believed it necessary or it was ordered by a court, could be considered to be such a “triggering” event. In addition, Starnaman remains binding on me even though the applicant’s most recent sentence served was for assault, not sexual assault.

[ 31 ] The Court of Appeal in Starnaman held that access to the procedure in the MHA for the determination of involuntary admission immediately following a criminal sentence did not contravene s.7 of s.12 of the Charter. [12]

[ 32 ] The Court of Appeal upheld the decision of O’Driscoll J. in the Ontario Court (General Division). O’Driscoll J. agreed with the proposition that the committal procedures in the MHA may operate regardless of whether a person is currently serving a prison term or is subject to some other form of involuntary confinement. The fact that a person is subject to incarceration under the Criminal Code does not immunize him or her from the application of the MHA provided the criteria in the MHA for committal are met. [13]

[ 33 ] Accordingly, I find that the applicant’s civil committal following the completion of his criminal sentence does not offend the Charter. He is not placed in double jeopardy. Nor is the access to the procedure in the MHA for the determination of involuntary admission immediately following a criminal sentence a contravention of the Charter.

CONCLUSION

[ 34 ] For the foregoing reasons, the application for habeas corpus is dismissed.

QUINLAN J.

Released: February 13, 2012