ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12/00000141/00MO
DATE: 20120828

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO FOR THE MINISTRY OF HEALTH AND LONG-TERM CARE Respondent – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO FOR THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES Respondent – and – PERSON IN CHARGE, CENTRE FOR ADDICTION AND MENTAL HEALTH Respondent – and – CHUN FA CHEN, SINNATHURAI SIVABALASUNDRAM, JOAN GRANT Applicants

Michael Feindel, Esq., for the Respondent, Crown
Michael Feindel, Esq., for the Respondent, Crown in Right of Ontario for the Ministry of Health and Long-Term Care for the Respondent, Her Majesty the Queen in Right of Ontario for the Ministry of Community Safety and Correctional Services
Michael Feindel, Esq., for the Respondent, Crown in Right of Ontario for the Ministry of Community Safety and Correctional Services
James P. Thomson, Esq., for the Respondent, Person in charge of the Centre for Addiction and Mental Health
S. Abraham, for the Applicants

HEARD: August 3, 2012

ENDORSEMENT

[ 1 ] This is an application for a writ of habeas corpus ad subjiciendum with mandamus in aid, with respect to orders issued by Justice Knazan of the Ontario Court of Justice requiring the applicants who had been found unfit to stand trial on various criminal charges to be detained at the Centre for Addiction and Mental Health [CAMH] or a designate pending a disposition by the Ontario Review Board. This application was brought because none of the three applicants had been transferred to CAMH or a similar facility. As of August 3, 2012, Ms. Grant has been given a bed at CAMH and counsel are agreed that her application is therefore moot.

[ 2 ] Ms. Abraham submits that the applicants’ rights under sections 7 and 9 of the Charter have been violated by their continued detention in a jail as opposed to a mental health facility. The applicants seek an order of mandamus to enforce the original order of Justice Knazan. In particular, Ms. Abraham submits that this court should: (1) find that the three week period since Justice Knazan’s order exceeds a reasonable time for a bed to become available; (2) find that Justice Knazan’s order has therefore not been complied with; and (3) order that CAMH immediately admit the applicants.

[ 3 ] I dismissed the application on August 3 with brief oral reasons and indicated that I would provide written reasons to follow. These are those reasons.

Facts with respect to Mr. Chen

[ 4 ] On July 12, Justice Knazan found Mr. Chen unfit to stand trial on charges of criminal harassment, assault (3x), overcome resistance by choking, forcible confinement, fail to appear and fail to comply with recognizance. At that point the Crown requested a treatment order pursuant to section 672.58 of the Criminal Code, R.S.C. 1985, c. C-46. Justice Knazan declined to issue a treatment order and instead issued an order pursuant to section 672.46(2) of the Criminal Code, which read as follows:

IT is therefore ordered, pursuant to the provisions of s. 672.46(2) of the Criminal Code of Canada, that you, in her Majesty’s name, take the accused in custody and convey the accused safely to the Waypoint, CAMH or designate as soon as a bed is reasonably available. This order authorizes detention in a jail, including the Toronto Jail until a bed is reasonably available but if no bed is available by July 27, 2012 both Crown and defence counsel are to be notified, and the accused is to be returned to Courtroom 102 Old City Hall so that all the legal avenues can be explored and this order is to be treated as a remand to that date for that purpose.

[ 5 ] There is nothing in the record before the Court about what happened on July 27, 2012. Ms. Abraham indicates that she believes that Mr. Chen appeared on that date although, inexplicably, neither Ms. Abraham nor anyone else on Mr. Chen’s behalf appeared on that date. Curiously the affidavit filed as part of Mr. Chen’s application record says that counsel for Mr. Chen was advised on July 26, 2012 that he would next appear in 102 Court on July 30, 2012. None of the parties could explain why this occurred or whether Mr. Chen appeared on July 26 or July 27 and no up to date copy of the relevant Information was included in the application record.

[ 6 ] I am told that Mr. Chen next appeared in 102 Court on July 30, 2012 and the matter was remanded to August 1, 2012 to be spoken to. On August 1, 2012, Mr. Chen appeared in 102 Court before Justice Caldwell. I am told that Justice Caldwell declined to deal with the matter further because she had been informed of this habeas corpus application that was to be before this court on the following day, August 2, 2012. Counsel for Mr. Chen did not oppose Justice Caldwell’s decision nor did they seek to have her explore other legal avenues as contemplated in the order of Justice Knazan.

Facts with respect to Mr. Sivabalasundram

[ 7 ] On July 12, Justice Knazan found Mr. Sivabalasundram unfit to stand trial on a charge of assault. At that point the Crown requested a treatment order pursuant to section 672.58 of the Criminal Code. Justice Knazan declined to issue a treatment order and instead issued an order pursuant to section 672.46(2) of the Criminal Code, which read as follows:

IT is therefore ordered, pursuant to the provisions of s. 672.46(2) of the Criminal Code of Canada, that you, in her Majesty’s name, take the accused in custody and convey the accused safely to CAMH or designate as soon as a bed is reasonably available. This order authorizes detention in a jail, including the Toronto East Detention Centre until a hospital bed is reasonably available but if no bed is available by July 26, 2012 both Crown and defence counsel are to be advised, and the accused is to be returned to Courtroom 102 Old City Hall so that all the legal avenues can be explored and this order is a remand to that date for that purpose.

A bed was not made available to Mr. Sivabalasundram, and he was returned to 102 Court on July 26. On that date, I am told counsel for Mr. Sivabalasundram did appear at 102 Court and waited for approximately two hours. Mr. Sivabalasundram had not been brought from the jail. The Crown in 102 Court had no knowledge of the matter. Later that day counsel for the applicant was advised by the Crown that in fact, Mr. Sivabalasundram had shown up and it was agreed the matter could be remanded to 102 Court on July 30 at 10:00 a.m.

[ 8 ] I am told that Mr. Sivabalasundram next appeared in 102 Court on July 30, 2012 and the matter was remanded to August 1, 2012 to be spoken to. On August 1, 2012, Mr. Sivabalasundram appeared in 102 Court before Justice Caldwell. As was the case with Mr. Chen, I am told that Justice Caldwell declined to deal with the matter further because she had been informed of the habeas corpus application that was to be before this court on the following day, August 2, 2012. Once again, counsel for Mr. Sivabalasundram did not oppose Justice Caldwell’s decision nor did they seek to have her explore other legal avenues as contemplated in the order of Justice Knazan.

Issues to Be Determined

[ 9 ] In addition to the issues raised by the applicants’ counsel there are two other issues that must be determined: (1) Is this an appropriate case to award a writ of habeas corpus ad subjiciendum? and (2) Is this an appropriate case for an order of mandamus compelling compliance with the orders of Justice Knazan? I shall discuss each of these in turn.

Is this an appropriate case to award a writ of habeas corpus ad subjiciendum?

[ 10 ] The applicants included in their book of authorities a copy of the Habeas Corpus Act, R.S.O. 1990, c. H.1. In my oral reasons, I referred to s. 1 of that act which provides as follows:

1. (1) Where a person, other than a person imprisoned for debt, or by process in any action, or by the judgment, conviction or order of the Superior Court of Justice or other court of record is confined or restrained of his or her liberty, a judge of the Superior Court of Justice, upon complaint made by or on behalf of the person so confined or restrained, if it appears by affidavit that there is reasonable and probable ground for the complaint, shall award a writ of habeas corpus ad subjiciendum directed to the person in whose custody or power the person so confined or restrained is, returnable immediately before the judge so awarding the writ, or before any judge of the Superior Court of Justice. [Emphasis added.]

[ 11 ] I noted that both of Justice Knazan’s orders authorized the detention of the applicants in a jail and remanded them to a future court date. In light of this, I suggested to counsel that neither applicant could bring themselves within s. 1(1) of the Act as they were both “imprisoned … by … order of … [an] other court of record.” However, I did not mean to suggest that this was dispositive of the application. First, the Habeas Corpus Act does not apply to a criminal proceeding. Second, as the jurisdiction to entertain habeas corpus applications is part of the long standing inherent jurisdiction conferred to provincial superior court judges appointed under s. 96 of the Constitution Act, 1867 it is not limited by the provisions of the Habeas Corpus Act.

[ 12 ] I recognize that habeas corpus is not a discretionary remedy, rather “it issues ex debito justitiae on proper grounds being shown.”[^1] Moreover, habeas corpus is a crucial remedy to protect the rights under sections 7 and 9 of the Canadian Charter of Rights and Freedoms. For both of these reasons, the Superior Courts should be “reluctant to decline such jurisdiction when called upon to exercise it.”[^2] But this does not alter the fact habeas corpus will only lie where there is something illegal about the restriction of the applicant’s liberty interests or about the applicant’s detention. As I made clear in my oral discussion of the Habeas Corpus Act there is nothing illegal about the continued detention of the applicants in jail as this was specifically authorized by Justice Knazan’s orders. Thus, while it was perfectly appropriate to bring the applicants before the court to determine the legality of their detention, as that detention is legal they are not entitled to relief.

Does Mandamus Lie Against the Respondents on the Facts of This Case?

[ 13 ] Mandamus is a prerogative writ issued by a superior court to any government body, subordinate court, corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to do or refrain from doing. The requirements that must be met before mandamus will issue are summarized in Apotex Inc. v. Canada (A.G.), 1993 3004 (FCA), [1994] 1 F.C. 742 (C.A.), at para. 45, aff'd 1994 47 (SCC), [1994] 3 S.C.R. 1100. In this case, the central issue is whether the respondents have a public legal duty to act. Thus, the applicants have the burden of demonstrating that the respondents have not complied with the order of Justice Knazan.

[ 14 ] In the case of Mr. Chen, I am handicapped by the fact that there is nothing in the record before me that demonstrates whether or not he was brought before the court on July 27, 2012. However, rather than dismiss the application on this basis, with the consent of all parties, I agreed to determine the matter on the assumption that Mr. Chen was returned to court on July 27, 2012 as ordered by Justice Knazan and was thereafter dealt with as outlined above.

[ 15 ] Justice Knazan made a compound order authorizing (1) the detention of the applicants in a jail until a bed is reasonably available and (2) if no bed becomes available, requiring the applicants to be returned to court on a specified date. The difficulty for the applicants is that the orders of Justice Knazan have largely been complied with. That is, the applicants were detained in the specified jails pending the availability of a bed and when no bed was made available they were returned to Court on the dates specified.[^3]

[ 16 ] Ms. Abraham submits that the orders of Justice Knazan were not complied with as a hospital bed was not made available to the applicants in a reasonable time. She suggests that the return dates suggested by Justice Knazan are an indication of his view of what a reasonable time was. This argument is untenable. Justice Knazan is a very experienced judge in the Mental Health Court at Old City Hall and is well familiar with the difficulties that can arise when individuals with psychiatric difficulties find themselves before the criminal courts. These difficulties include the problems and delays that can be encountered when courts order that criminal accused be admitted to CAMH or other mental health facilities and there are no beds available for them. Knowing this, Justice Knazan did not order that the applicants be admitted to CAMH by any particular date. Nor did Justice Knazan indicate what a reasonable time would be for the applicants to wait for a bed. Certainly Justice Knazan could have done either or both of these things, but he declined to do so. As such, it cannot be said that the orders of Justice Knazan were not complied with and therefore, mandamus does not lie in these circumstances.

[ 17 ] In Centre for Addiction and Mental Health v. Al-Sherewadi, 2011 ONSC 2272, [2011] O.J. No. 1755, Justice Nordheimer acknowledged the difficulties posed by the scarcity of hospital resources and the delays resulting therefrom. At para. 15, he stated:

Recognizing those realities is not to be equated with any suggestion that the needs of such people can be ignored or pushed to the side for lengthy periods of time, however. It remains the duty of the court to monitor compliance with any order that the court makes. But it requires that an allowance of a reasonable period of time for compliance with the order be permitted. It is only after that reasonable period of time has expired, and compliance has not been made, that a court is justified in taking more direct and vigorous action.

This is precisely what Justice Knazan did. He crafted orders that were intended to ensure that the applicants did not languish in jail and permit the mental health court to continue to discharge the appropriate supervisory role with respect to them both. In this regard, Justice Knazan did what was most appropriate in the circumstances.

[ 18 ] It is true that when the applicants returned to court there was no discussion of what other legal avenues could be explored on their behalf. But this was the fault of applicants’ counsel. They did not seek to have such a discussion on July 26, 27, 30 or on August 1. Ms. Abraham conceded that when she was before Justice Caldwell on August 1, 2012, she did not ask Her Honour to enter into such a discussion and engage in the supervisory role envisaged by Justice Knazan. This could have been done without prejudicing the habeas corpus application that was to be heard the next day. Indeed, had this been done the application would have been before this court in a crisper form. That is, there would be a clearer indication of what, if any “other legal avenues” might exist to assist the applicants. As this failure lies at the feet of the applicants’ counsel they cannot rely on it as a basis for mandamus.

[ 19 ] The question of how long is a reasonable time to provide a hospital bed to people such as the applicants is both an interesting and challenging question. While our courts have repeatedly emphasized the need to accommodate individuals in the applicants’ position as quickly as can reasonably be done, there is no authority as to what constitutes a reasonable time. No doubt that is because of the complexity of the factual circumstances that will surround both the circumstance of a particular accused, as well as the particular circumstances of the hospital involved both in terms of their available resources and their commitments to other patients and to other persons awaiting treatment. It would certainly be helpful if a higher court could provide some guidance in this regard, although it may well be difficult to do so in the abstract. But this question does not arise on this application and this application is not the appropriate vehicle to deal with that broader and more complex social issue.

Have the Applicants’ Rights under ss. 7 and 9 of the Charter Been Violated?

[ 20 ] With respect to the allegations of violations of sections 7 and 9 of the Charter, there is simply no basis for those allegations. Both of these individuals are detained pursuant to valid court orders. There was nothing arbitrary about their detention and the submission merits no further response from the court.

Some Concluding Observations

[ 21 ] Given the expertise of the judges who sit regularly in the Mental Health Court at Old City Hall, it seems obvious that they are the judges who are best suited to deal with the supervision of orders of this nature. They are not only more familiar with accused persons with psychiatric disorders, but they are immensely more familiar with the resources that are available to such individuals in the community such as hospitals and other treatment centres. As far as possible, while respecting the rights of such individuals, orders dealing with them and their transfer to treatment facilities should be supervised by the judges with the greatest expertise in dealing with the matter, that is, the judges of the Ontario Court of Justice. Counsel for such individuals should keep this in mind when deciding on what litigation strategy to pursue on behalf of their clients.

[ 22 ] The application record in this case was deficient. No information was provided with respect to the ordered appearance of Mr. Chen on July 27, 2012. This is inexcusable. At a minimum, counsel should include in their application record an up to date information that reflects the last appearance of the applicant in the Court of Justice. Moreover, while I recognize that difficulties in promptly obtaining transcripts, where such orders are made counsel should try to obtain transcripts of any relevant discussions or reasons. Transcripts of subsequent appearances would also be helpful unless counsel can agree on what occurred.

Costs

[ 23 ] The applicants sought an order under s. 672.24(1) of the Criminal Code appointing them as counsel for the applicants. The Crown consented and I made the order. This renders the applicants’ request for cost superfluous so it will be dismissed.

Conclusion

[ 24 ] The application and the application for costs are dismissed. Mr. Hynes is appointed counsel for all three respondents. Pursuant to s. 775 of the Criminal Code, Mr. Chen and Mr. Sivabalasundram are remanded to 102 Court in Old City Hall at 10:00 a.m. I note that on August 3 the respondents indicated that beds should be available to both of the applicants with seven to fourteen days. This means that the applicants should have been admitted to the hospital by the time these written reasons are released. This will be a relevant factor for the Judge in 102 Court who supervises this matter. As I indicated orally, the dismissal of this application does not bar the applicants from bringing another such application before this court on an appropriate record where the necessary legal prerequisites are made out.

T. Ducharme J.

Released: August 28, 2011

COURT FILE NO.: 12/00000141/00MO
DATE: 20120828

ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO FOR THE MINISTRY OF HEALTH AND LONG-TERM CARE Respondent – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO FOR THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES Respondent – and – PERSON IN CHARGE, CENTRE FOR ADDICTION AND MENTAL HEALTH Respondent – and – CHUN FA CHEN, SINNATHURAI SIVABALASUNDRAM, JOAN GRANT Applicants

ENDORSEMENT

T. Ducharme J.
Released: August 28, 2012

[^1]: Sharpe, Robert J. The Law of Habeas Corpus, 2d ed. (Oxford: Clarendon Press, 1989) at p. 58.
[^2]: R. v. Graham, 2011 ONCA 138, 268 C.C.C. (3d) 517, at para. 7.
[^3]: Ms. Abraham did point out that Crown and defence counsel were not notified that a bed was not available, but she conceded that this is not a basis for mandamus.