COURT FILE NO: CV-12-456311

DATE: 20140122

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Bahaeddine Hneihen, by his Litigation Guardian, The Public Trustee

Plaintiff

• and -

Centre for Addiction and Mental Health (Queen Street Division), and Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long Term Care, Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community Safety and Correctional Services, and Her Majesty the Queen in Right of Ontario as Represented by the Attorney General of Ontario

Defendants

Walter Kim,

for the Plaintiff, The Public Guardian and Trustee

William Manuel, Judie Im & Hart Schwartz,

for the Defendant/Moving Party, Her Majesty the Queen in Right of Ontario

HEARD: October 7, 2013

REASONS FOR DECISION

FIRESTONE J.

[1] The moving party, Her Majesty the Queen in Right of Ontario (“Crown”) brings this motion pursuant to Rules 1.04, 21.01(1)(a), 21.01(1)(b), 31.01(3)(d), 25.11 and 37 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) to determine various issues of law raised in the plaintiff’s pleading and to strike out portions of the Statement of Claim.

[2] The defendant, Centre for Addiction and Mental Health (“CAMH”), had brought a similar motion pursuant to Rules 1.04, 21.01(1)(a), 21.01(1)(b), 21.01(3)(d), 25.11 and 37 of the Rules. That motion has been withdrawn by CAMH. Consequently, these reasons deal with the action insofar as it is brought against the moving party.

ISSUES FOR DETERMINATION

[3] The issues for determination are as follows:

(a) Whether the plaintiff’s claim for false imprisonment discloses a reasonable cause of action against the Crown;

(b) whether the Crown is immune from liability for claims of false imprisonment;

(c) whether the facts pled in the Statement of Claim establish a violation of the plaintiff’s rights under ss. 7, 9 or 12 of the Charter or any viable basis for an award of damages under section 24(1) of the Charter; and

(d) whether the allegations at paragraphs 9, 20, 26, 28, 46 and 53 of the amended Statement of Claim are scandalous, frivolous and vexatious or an abuse of process.

[4] The plaintiff in his factum has confirmed that he is not advancing a claim for contempt of court order.

[5] The plaintiff also agreed that there is no claim against Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long Term Care.

FACTUAL BACKGROUND

[6] In January 2010, the plaintiff, Bahaeddine Hneihen (“Hneihen”), was arrested for forcible confinement, sexual assault, theft under $5,000, mischief under $5,000 and failure to comply with recognizance. These offences were committed in late 2009 and early 2010.

[7] On June 10, 2010, following trial, Justice Schneider of the Ontario Court of Justice, found Hneihen not criminally responsible (“NCR”) by reason of mental disorder under s. 16(1) of the Criminal Code, R.S.O. 1985, c. C-46 (“the Code”) .

[8] On the same day, Justice Schneider issued a warrant of committal under s. 672.46(2) of the Code. The warrant stated as follows:

TO THE PEACE OFFICER IN THE SAID REGION, and to the keeper (administrator, warden) of the CAMH OR DESIGNATE

This warrant is issued for the committal of BAHAEDDINE HNEIHEN hereinafter called the accused.

WHEREAS the accused has been charged that FORCIBLE CONFINEMENT/ SEXUAL ASSAULT/FTC RECOG./THEFT UNDER/MISCHIEF UNDER X 2

AND WHEREAS, the accused, upon trial of the issue, has been found not criminally responsible

AND WHEREAS cause has been shown to vacate any order or release or detention previously in force

IT IS THEREFORE ORDERED, pursuant to the provisions of 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 FORTHWITH TO CAMH OR DESIGNATE.

I DO THEREFORE COMMAND YOU, the said Administrator, to receive the accused in your custody in the said facility and to keep the accused safely there until a hearing has been held by the Ontario Review Board and a Disposition made.

[9] Hneihen was taken into custody as the order provided for, but not taken to CAMH or any other hospital. He was taken by the Toronto Police to the Toronto (Don) Jail because CAMH advised that there was no bed available.

Ontario Review Board Disposition

[10] On July 15, 2010 the ORB disposition hearing was held. On July 20, 2010 the ORB released its disposition and ordered that “the accused be detained at the Secured Forensic Unit of the Centre for Addiction and Mental Health” and that the person in charge of CAMH create a program for his rehabilitation.

[11] Such disposition was to remain in force until a new disposition by the ORB was issued. The disposition commanded CAMH in Her Majesty’s name to execute the terms of the disposition.

[12] By way of written reasons, the ORB understood the warrant of committal to mean that Hneihen was to be conveyed forthwith to CAMH or its designate. Although the ORB noted that it was unfortunate that they did not have an up-to-date hospital report addressing risk, the appropriate level of security and conditions for a disposition, they unanimously concluded that Hneihen represented a significant threat to the safety of the public.

[13] Despite the ORB’s disposition that he be conveyed to CAMH, Hneihen continued to remain in jail from the date of that disposition because CAMH still had no beds available.

Habeas Corpus Application

[14] On July 30, 2010, counsel for Hneihen brought an application before Justice Forestell of this court for the prerogative writs of habeas corpus and mandamus. An order was sought declaring Hneihen’s detention in jail to be unlawful and for an order for his immediate transfer to CAMH.

[15] On July 30, 2010 Justice Forestell ordered that he be moved immediately from the Don Jail to CAMH. At that time, Hneihen was on a waiting list for transfer to CAMH. No date for transfer had been set.

[16] In Justice Forestell’s reasons, dated September 28, 2010, at R. v. Hneihen, 2010 ONSC 5353, it was held that the two elements for a successful habeas corpus application were met.

[17] Hneihen was deprived of his liberty and that deprivation was unlawful. The warrant of committal did not authorize Hneihen’s detention in jail, but rather only provided that he be taken into custody to be detained at CAMH.

[18] The warrant of committal was not ambiguous according to Justice Forestell. There was no lawful authority to detain Hneihen in jail for any period of time.

[19] Justice Forestell held that the scheme under Part XX.I of the Code which provides for the nature and quality of the detention of an NCR accused following a verdict “cannot be overridden by an opaque and bureaucratic process with no discernible criteria, no temporal limitations and no appeal.”

[20] Justice Forestell described the provisions and objectives of Part XX.I relevant to this case:

• Following ss. 672.46 and 672.47 of the Code, the only time an NCR accused can be detained in jail after the NCR verdict is when the NCR accused has been detained in jail pending trial and the court does not order a change in the detention order. In such circumstances, the legislation permits detention in jail for up to 45 days or in exceptional circumstances, 90 days. Then a disposition must be made. In this case, Mr. Hneihen was detained in jail pending trial, but the court changed the detention order to detain Mr. Hneihen in a hospital.

• Following s. 672.54 of the Code, there are three dispositions available to the court or the ORB for accused who are mentally ill: absolute discharge, conditional discharge, or detention in a designated hospital. The provisions are consistent with the objectives of Part XX.1, which are to treat rather than punish the NCR accused and detain the NCR accused in a hospital rather than jail.

[21] Hneihen, it is alleged, was detained in the Toronto (Don) Jail for 50 days before being transferred to CAMH. During this time period he allegedly suffered from periodic acts of violence, mental anguish and distress, and had limited opportunities to receive treatment and counselling.

The Action

[22] Hneihen has brought this action for damages as against Her Majesty Queen in Right of Ontario as represented by the Ministry of Correctional Services and the Ministry of the Attorney General of Ontario (“the Crown”) and CMAH. The action against CAMH is continuing and it takes no position on this motion.

[23] The amended Statement of Claim alleges the Crown unlawfully detained Hneihen and breached Hneihen’s ss. 7, 9, and 12 Charter rights. The amended Statement of Claim also alleges CAMH was negligent by failing to admit him since CAMH knew or ought to have known that Hneihen was incarcerated at the time.

[24] The Public Guardian and Trustee (“PGT”) became Hneihen’s litigation Guardian in late November 2012.

[25] The Ministry of Correctional Services is responsible for public safety, law enforcement, and correctional facilities for the benefit of Ontarians.

[26] The Attorney General for Ontario is responsible for conducting prosecutions under the Code in Ontario.

[27] CAMH is a publicly funded psychiatric hospital that provides care for individuals who suffer from addiction and mental health disorders. CAMH is designated under Part XX.I of the Code to provide custody, treatment and assessment of criminally accused persons.

POSITION OF THE PARTIES

[28] The parties agree that the test on a motion to strike is whether, assuming the facts pleaded are true, it is “plain and obvious” that the claim discloses no reasonable cause of action. If the test is met, the claim should be struck.

[29] The plain and obvious test applies equally to rule 21.01(1)(a) and (b): see Hunt v. Carey, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at paras. 30-33; MacDonald v. Ontario Hydro (1994), 1994 CanLII 7294 (ON SC), 19 O.R. (3d) 529 (Gen. Div.), aff’d (1995) 1995 CanLII 10628 (ON SC), 26 O.R. (3d) 401 (Div.Ct.).

Whether the plaintiff’s claim of false imprisonment discloses a reasonable

cause of action

[30] The Crown argues that once a prima facie case of false imprisonment is made out by the plaintiff, the onus shifts to the defendant to justify the confinement. Justification exempts from liability persons who act reasonably in committing an intentional tort like false imprisonment. The defense of public necessity is available in situations of “imminent peril”.

[31] Hneihen’s detention in jail was justified, they submit, because the warrant authorized the Crown to take him into “custody” until he could be safely conveyed to CAMH.

[32] The Ontario Court of Appeal in Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342, 111 O.R. (3d) 19, leave to appeal to S.C.C. granted [2012] S.C.C.A. No. 339 (“Conception”) and Centre for Addiction and Mental Health v. Al-Sherewadi, 2011 ONSC 2272, [2011] O.J. No. 1755 interpreted the term “forthwith” in a warrant of committal regarding an accused with mental health issues as meaning some reasonable period of time for the system to accommodate the needs of these individuals.

[33] The Crown argues that Hneihen was never entitled to be released from custody. Neither the warrant, the disposition, nor, Justice Forestell’s order, authorized the Crown to release him. He could only be released when the ORB found he was not a significant threat to the safety of the public. This never occurred. The detention, they argue, was necessary, reasonable and in the public interest until such time as he was accepted into CAMH. The defense of necessity, they argue, is available in the circumstances.

[34] It is submitted that the ORB’s disposition of July 20, 2010 was directed at CAMH and, therefore, cannot be the basis to ground a viable cause of action for false imprisonment against the Crown.

[35] The plaintiff argues that Hneihen’s unlawful detention gives rise to a claim for false imprisonment.

[36] He argues that the Crown improperly relies on the Conception and Al-Sherewadi cases for the proposition that “forthwith” should be interpreted to allow for a period of detention in jail awaiting admittance to CAMH and, therefore, the Crown was not authorized to take Hneihen to jail.

[37] Conception does not, he argues, apply to this case because it addresses treatment orders for an accused unfit to stand trial, which is governed under different provisions of the Code, and the warrant in that case specifically stated that the accused was not to be taken to jail or a correctional facility under any circumstances

[38] Al-Sherewadi, he submits, is inapplicable because it also addresses a treatment order regarding an accused unfit to stand trial. In Al-Sherewadi, the court acknowledged that there are subtle but important differences between an accused found NCR and an accused found unfit to stand trial, which include the sections of the Code that deal with these matters. They argue that Hneihen’s detention was not legally justified. They submit that he should have been detained only at CAMH and nowhere else.

[39] The plaintiff submits that s. 672.54 is to be interpreted to mean that when a disposition regarding an NCR accused is made, if detention is ordered, it is to occur in a hospital. Whether or not Hneihen was detained in jail because of scarce public resources for hospital beds is of no consequence. It does not render his detention lawful.

[40] In the alternative, if this interpretation is not accepted, he argues that Al-Sherewadi states that, notwithstanding the funding issues, the length of detention in jail must be reasonable. In Conception and Al-Sherewadi, the accused had been detained for six days and two days, respectively. Whether 50 days is a reasonable period of time to remain in jail is a triable issue.

[41] They argue that the disposition of the ORB is irrelevant in determining whether there was lawful authority to detain Hneihen in jail. The claim for false imprisonment is based on the Crown’s actions and not on the ORB’s order.

[42] They submit that just because the Crown was not authorized to release Hneihen from custody does not justify detaining him in jail without authority. The issue of whether detention was necessary or in the public interest requires a trial. Further, the Crown’s argument that the detention was lawful is res judicata given that this was the same argument before Justice Forestell on the habeus corpus application and her decision was not appealed.

Whether the Crown is immune from liability for the claim of false imprisonment

[43] The Crown argues that in this instance it is immune from liability for a claim framed in false imprisonment by way section 25(2) of the Code, sections 2(2)(d) and 5 in the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27 (“PACA”), section 12 of the Ministry of Correctional Services Act, R.S.O. 1990, c. M. 22 (“MCSA”), s. 8 of the Public Authorities Protection Act, R.S.O. 1990, c. P. 38 (“PAPA”) and s. 142 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”) each of which applies to these circumstances. They rely on Ontario v. Phaneuf, [2009] O.J. No. 5618 (Div Ct.), at paras. 44-46, aff’d 2010 ONCA 901, which found the sections apply to protect correctional officers discharging their responsibilities in connection with executing a warrant of committal.

[44] Section 5 of PACA subjects the Crown to liability for torts committed by any of its servants or agents only if a proceeding in tort may be brought against that servant or agent of the Crown.

[45] Section 25(2) of the Code provides that a person authorized or required by law is justified in executing a process if that person acts in good faith notwithstanding the process is defective:

Where a person is required or authorized by law to execute process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

[46] The Crown argues that this provision has been found to protect peace officers from the intentional tort of false imprisonment. The corrections officers at the Toronto (Don) Jail were required to, and acted in good faith in executing the warrant of committal regarding Hneihen. The plaintiff’s pleadings do not suggest that the officers either acted in bad faith or refused to carry out the warrant in bad faith. As a result, section 25(2) protects the corrections officers at the Toronto (Don) Jail from tort liability.

[47] Section 5(6) of PACA states that the Crown is immune to any court proceeding regarding judicial acts:

No proceeding lies against the Crown under this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in the person or responsibilities that the person has in connection with the execution of judicial process.

[48] Section 2(2)(d) of PACA gives the Crown immunity from acts in the “due enforcement of criminal law”:

Nothing in this Act, subjects the Crown to a proceeding under this Act in respect of anything done in the due enforcement of the criminal law or of the penal provisions of any Act of the Legislature.

[49] Correctional officers are also statutorily immune from personal liability for claims arising from conveyance of an accused into custody pursuant to section 12 of MCSA, which states as follows:

(1) No action or other proceeding for damages shall be instituted against the Deputy Minister or any other officer or employee of the Ministry or anyone

acting under his or her authority for any act done in good faith in the execution or intended execution of his or her duty or for any alleged neglect or default in the execution of his or her duty or for any act of an inmate, parolee or probationer while under his or her custody and supervision.

(2) Subsection (1) does not, by reason of subsections 5(2) and (4) of the Proceedings Against the Crown Act, relieve the Crown of liability in respect

of a tort committed by a person mentioned in subsection (1) to which it would otherwise be subject, and the Crown is liable under that Act for any such tort in a like manner as if subsection (1) had not been enacted.

[50] Persons who obey a court or mandatory order in Ontario are also protected from personal liability under s. 8 of PAPA and s. 142 of CJA:

Persons obeying mandamus protected

8. No action or other proceeding shall be commenced or prosecuted against

any person for or by reason of anything done in obedience to a mandamus or mandatory order. (PAPA)

Protection for acting under court order

142. A person is not liable for any act done in good faith in accordance with

an order or process of a court in Ontario. (CJA)

[51] The Crown submits that there are no allegations in the plaintiff’s claim that would deprive any individual correctional officers from personal immunity provided in these applicable statutory provisions.

[52] The plaintiff, on the other hand, argues that none of the immunity provisions referred to by the Crown apply. The Crown, it submits, was not required or authorized by law to detain Hneihen in jail. As a result, s. 25(2) of the Code does not exclude liability.

[53] The order of Justice Schneider is not defective nor did Justice Schneider exceed jurisdiction in making such order. Even if the unauthorized acts were done in good faith, that does not mean the Crown can avail itself of s. 25(2).

[54] Regarding section 5(6) of PACA, the Crown’s detainment of Hneihen was not discharging responsibilities of a judicial nature, nor was it discharging responsibilities in connection with the execution of a judicial process.

[55] In the alternative, the plaintiff states that if s. 5(6) does apply, only the Crown is immune. The individual officers are still personally liable and the plaintiff requests leave to amend the Statement of Claim to list the individuals responsible for Hneihen’s detention.

[56] Regarding section s. 2(2)(d) of PACA, the Crown, it is argued, was not enforcing the warrant when the police took him to jail.

Whether the plaintiff’s Charter violation and damages claim discloses a reasonable cause of action

[57] It is the Crown’s position that the facts as pleaded in the Statement of Claim do not establish a prima facie ss. 7, 9 or 12 Charter violation and as such, no basis for awarding damages pursuant to s. 24 of the Charter is made out.

[58] The plaintiff, the Crown submits, has failed to plead sufficient particulars that his loss of liberty was inconsistent with the principles of fundamental justice regarding his section 7 Charter claim.

[59] Such particulars could have consisted of allegations that the corrections officers’ conduct was arbitrary, overbroad or grossly disproportionate, or the corrections officers were not acting out of necessity, or were acting outside the scope of their statutory immunity.

[60] Based on the pleading, however, it cannot be said that the conduct violated the basic tenants of our legal system.

[61] The detention of Hneihen was not, the Crown argues, arbitrary such that the Crown violated s. 9 of the Charter. The peace officers decision to keep Hneihen at the Toronto (Don) Jail based on their understanding of the warrant was rationally related the overarching purpose of the warrant i.e. that Hneihen “be detained, not released” and safely conveyed to CAMH.

[62] They argue that regarding the s. 12 Charter claim, the harm alleged to have been suffered does not meet the test of being “so excessive or grossly disproportionate as to outrage decency in the particular circumstances of this offender”: see R. MacDonald (1998), 1998 CanLII 13327 (ON CA), 127 C.C.C. (3d) 57 (Ont.C.A.) at para. 16.

[63] Even if there is a prima facie Charter breach on the pleading, the Crown submits that the plaintiff has failed to plead that the Crown’s conduct met the threshold to make out a viable claim for an award of monetary damages under s. 24(1) of the Charter. Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 and Ontario cases require plaintiff to establish a high threshold of misconduct, in addition to a Charter breach, to obtain damages as a remedy pursuant to s. 24(1) of the Charter. Tort liability principles are relevant for analyzing whether Charter damages are appropriate. As well, the statutory provisions granting Crown immunity from liability apply to the Charter damages claim.

[64] The Crown argues that the plaintiff’s plea of “recklessness” is a mere bald allegation that violates rule 25.06(8), which requires full particulars where malice or intent is alleged.

[65] As well, the plaintiff has not sought leave to give particulars, nor does he suggest he could give such particulars were leave to do so to be granted. The Statement of Claim does not plead that a Crown agent or employee engaged in conduct meeting the established and required threshold. The Conception decision, released subsequent to Justice Forestell’s reasons, found, the Crown submits, that a reasonable wait time in jail is acceptable.

[66] The plaintiff argues that the Statement Claim, if taken to be true, does establish Charter breaches, as well as the grounds for awarding such Charter damages.

[67] The unlawfulness of the detention addresses the issue of fundamental justice in the s. 7 Charter breach claim. He argues that the Code has no provision to detain the accused in jail following a verdict of NCR. Therefore, the detention in jail without the benefit of due process breaches the principles of fundamental justice.

[68] As well, the detention in jail was indeterminate. The plaintiff’s failure to plead facts to overcome all the defenses the Crown would raise is not the test on a motion to strike.

[69] With respect to the s. 9 Charter breach claim, the plaintiff argues that the pleadings do show a prima facie case for arbitrary detention. The detention was not rationally related to the purpose of the Code, the purpose of which is to treat rather than punish NCR accused and to detain them in hospital.

[70] The plaintiff submits that the facts supporting the s. 12 Charter breach claim are properly pleaded. The Statement of Claim adequately describes the harm suffered. Hneihen’s detention would have been arbitrarily indeterminate but for the habeas corpus application. There was no mechanism to challenge CAMH’s internal decision process.

[71] The plaintiff further argues that the test for s. 24(1) Charter damages is properly pleaded in accordance with the Ward decision. The Statement of Claim, he submits, pleads the facts supporting the Charter rights breach claims and material facts which show that Charter damages are a just and proper remedy.

[72] Hneihen seeks compensation and vindication because the defendants knowingly acted contrary to a court order and ORB order. As well, the defendants were reckless causing harm to Hneihen.

Whether the allegations at paragraphs 9, 20, 26, 28, 46 and 53 are scandalous, frivolous and vexatious or an abuse of process

[73] The Crown argues that the allegations at paragraphs 9, 20, 26, 28, 46 and 53 should be struck without leave to amend because there is no private cause of action for “contempt of court order” and no such claim is being advanced by plaintiff.

[74] They further argue that such paragraphs must be struck without leave to amend because absolute privilege attaches to anything said or done during the judicial process. As a result, any reference to the habeas corpus proceedings is an improper pleading.

[75] The plaintiff confirms there is no claim being advanced for “contempt of court order” per se, but rather argues that these paragraphs are included to provide the necessary factual backdrop for the false imprisonment claim being advanced.

ANALYSIS

Whether the plaintiff’s claim for false imprisonment discloses a reasonable cause of action

[76] Pursuant to Rule 21(1)(b), I am to determine whether, assuming the facts as pleaded to be true, it is “plain and obvious” that the claim for false imprisonment against the moving party cannot succeed.

[77] I begin my analysis with a review of the essential elements of the intentional tort of false imprisonment. These are summarized in the moving party’s factum as follows:

(a) the plaintiff has been totally deprived of their liberty;

(b) the deprivation was against the plaintiff’s will; and

(c) the deprivation was directly caused by the defendant.

See: Linda Rainaldi et al, Remedies in Tort, loose-leaf (consulted on June 2013),

Toronto: Thompson Carswell, 1987) ch. 7 at pp. 9-21 [Remedies]

[78] I agree with the moving party’s submissions at para. 24 and 25 of their factum that:

1. Once a prima facie case of false imprisonment is made out which must consist of “direct and intentional confinement”, the onus shifts to the defendant to justify the confinement. See: John Murphy, Christian Witting & James Goudkam Street on Torts, 13^th ed. (Oxford: Oxford University Press, 2012) at p 275 [Street]; and

2. Justification at common-law exempts persons from liability who act reasonably in committing an intentional tort like false imprisonment. The defense of public necessity is available for certain narrowly defined situations of “imminent peril”.  See Street, supra para. 24 at p. 340; Allen Linden & Bruce Feldthusen, Canadian Tort Law, 9^th ed. (Markham, ON:  LexisNexis, 2011) at p.99 and R. v. Bournewood Mental Health Trust ex parte, [1998] 3 ALL ER 289 at 300-301.

[79] At this stage of the analysis it is not in my view “plain and obvious” that the plaintiff’s claim, assuming the facts as pleaded to be true, for false imprisonment (subject to being statutorily excluded) could not succeed against the moving parties based on his confinement at the Toronto (Don) Jail.

[80] A motion to strike is to proceed on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at p.455.

[81] The plaintiff has pleaded the necessary facts, which if true, could reasonably support a false imprisonment claim. The plaintiff pleads that:

• He was found NCR regarding the charges against him (para. 14).

• An order was made pursuant to s. 672.46(2) requiring him to be detained at CAMH pending disposition by the ORB (para.16).

• Despite the order he was taken to the Don Jail where he was unlawfully detained against his will (para. 19).

• The ORB made an order specifying that he be removed from the Don Jail and taken to CAMH (para. 22).

• The Crown continued to unlawfully imprison him in jail (para. 24).

• The procedures set out in the Criminal Code were followed by the Court and the ORB. Valid orders were made but were not followed by the defendants (para. 26).

• The sub-standard conditions of the Don Jail caused him serious harm (para. 31).

• The MCSC was responsible for his incarceration and continued unlawful detention (para. 45).

• Either or both defendants caused, contributed to, or were responsible for his unlawful imprisonment at the Don Jail and are liable in damages (para.48).

[82] Whether both the initial and continued detention at the Toronto (Don) Jail for the 50-day period as opposed to detention at CAMH or its designate was justified in the circumstances of this case can only be made on a full evidentiary record where a determination can be made regarding:

• Whether the warrant of committal allowed the plaintiff to be taken to jail at all and if so, for how long?

• At any point during the 50-day period (continuum) was such detention unlawful or against his will?

• Was continued detention at jail necessary and reasonable or should another option have been pursued and if so, by whom?

• Was his detention in jail intentional?

[83] The answers to these and other questions would ultimately determine if a claim for false imprisonment (if not otherwise statutorily precluded) would ultimately succeed. The proper place for such an evidentiary inquiry is on a summary judgment motion or at trial but not on a motion to strike.

[84] While there is no question that on any reading of the warrant, Hneihen was to be taken into custody and that at no time was he to be released into the public, there is an issue regarding what the term “custody” means in the context of the warrant as well as where he was to be taken (lawfully or otherwise), for how long he was to remain there and who was to follow up, if at all, with CAMH or its designate to secure a place.

[85] Such a cause of action is not solely dependent on whether such transfer and detainment at the Toronto (Don) Jail was lawful.

[86] This, however, does not end the false imprisonment analysis against the Crown.

Whether the Crown is immune from liability for the claim of false imprisonment

[87] For the reasons that follow, I find that the Crown in this action, based on the amended Statement of Claim as currently constituted, is immune from liability for the claim of false imprisonment based on s. 25(2) of the Code, ss. 2 (2)(d) and 5 of PACA, s. 12 of MCSA, s. 8 of PAPA, and s. 142 of CJA.

[88] In Pispidikis v. Ontario (Justice of the Peace) (2002), 2002 CanLII 23209 (ON SC), 62 O.R. (3d) 596 (S.C.), aff’d (2003), 2003 CanLII 27059 (ON CA), 68 O.R. (3d) 665 (Ont.C.A.) the court held that correctional officers, a Justice of the Peace and the Crown were immune from liability for wrongful arrest and imprisonment of a plaintiff based on ss. 2(2)(d) and 5(6) of PACA, s. 8 of PAPA, and s. 142 of CJA.

[89] In Pispidikis the court held, at paras. 46-50, that the correctional officers at the Don Jail were simply complying with the warrant of committal as they were obligated to. Their actions constituted discharging responsibilities in connection with the judicial process or acting in the due enforcement of penal provisions of an Act of the Legislature. The officers were also protected by s. 8 of PAPA. The court held that on a public policy basis, persons following a warrant of committal “in good faith” should be protected from liability, at para. 51:

[P]ersons acting in good faith in response to a judicial order such as a warrant of committal should not attract liability. That is not to say that if there were evidence of malice or an absence of good faith they would not then become disentitled to the protection of s. 142 of the Courts of Justice Act and the claim allowed to proceed.

[90] In Pispidikis, the Crown did not bring a motion to strike the claim of alleged negligent acts against an individual correctional officer. That officer was alleged to have opened the plaintiff’s cell door upon request from a number of inmates, who proceeded to severely beat the plaintiff in his cell.

[91] In this case, the Crown was required to implement the warrant of committal. The plaintiff’s amended claim does not allege that the Crown did so on anything other than a good-faith understanding that Hneihen was to be taken into custody and thereafter detained in jail until a CAMH bed was made available.

[92] The plaintiff’s amended Statement of Claim at para. 20 states “The Toronto Police took Baha to the Don Jail because CAMH had advised the Toronto Police and/or the Crown that it had no bed available for Baha at its Queen Street location.”

[93] At para. 41 the plaintiff further pleads, “CAMH continued to cause Baha’s detention by failing to admit him as bed space became available during the 50 days that he remained in jail. CAMH knew or ought to have known that Baha was incarcerated during this time and that their continued failure to admit him to the hospital would cause his continued detention.”

[94] As in Pispidikis, the conduct of the Crown and its servants or agents constituted discharging responsibilities in connection with a judicial process, enforcing the criminal law, and obeying a mandatory court order in Ontario. They are, therefore, protected against liability from a tort proceeding pursuant to s. 25(2) of the Code, ss. 2(2)2(d) and 5 of PACA, s. 12 of MSCA, s. 8 of PAPA, and s. 142 of CJA.

[95] As well, the amended Statement of Claim does not identify or refer to any individual correctional officers to which a claim for false imprisonment is brought or to any material facts that would oust the immunity provisions. The Crown cannot be directly liable on the pleading as pled; Crown liability is plausible only if liability can be established through its servants or agents. No such correctional officers are identified in the body of the amended claim.

[96] For the above reasons I find that the Crown on the amended Statement of Claim before me is immune from liability for the claim of false imprisonment. This is because it fails to contain the elements necessary to exclude the application of the limited liability provisions.

[97] The false imprisonment claim in the amended Statement of Claim is struck, with leave to amend.

Whether the facts pled establish a violation of the plaintiff’s rights under ss. 7, 9 or 12 of the Charter or any basis for an award of damages under section 24(1) of the Charter

[98] I will address sections 7, 9 and 12 of the Charter first.

[99] In my view, the amended Statement of Claim properly pleads and discloses a prima facie Charter breach against the Crown for violation of sections 7, 9 and 12 of the Charter. I say this for the following reasons:

(a) Section 7 Charter breach

[100] Paragraph 50, in conjunction with the other paragraphs in the amended Statement of Claim including paragraph 31, 32, 45 and 57, if true, could give rise to a s. 7 Charter breach.

[101] By being detained in jail and being subject to a facility that was possibly ill-equipped to handle persons with mental illness, Hneihen was arguably deprived of his liberty. Such deprivation, it is pled, was not consistent with the principles of fundamental justice in that his detention was indeterminate, contrary to the objectives of Part XX.I of the Code that NCR accused should be treated in a hospital, not exposed to harsh conditions in a prison, and his detention in jail was excessive and became unlawful following the ORB’s disposition.

(b) Section 9 Charter breach

[102] Sufficient facts are pled regarding an arguable denial of the right not to be arbitrarily detained or imprisoned. It may very well be that when Hneihen was first detained in jail, such detention was not arbitrary. It is clear the warrant of committal did not authorize his release in the event that no beds were available. Therefore, there is an issue regarding whether it was reasonable for Hneihen, as the Crown argues, to remain in jail pending disposition from the ORB or until such time could be conveyed to CAMH.

[103] After a certain period of time, however, during the 50-day period that he remained in jail, such detention may have become arbitrary and unfair. As well, the plaintiff pleads his transfer to jail for any period of time based on the warrant in this case was unlawful.

(c) Section 12 Charter breach

[104] Sufficient facts are pled that could give rise, if true, to a s. 12 Charter breach claim. This section of the Charter prohibits grossly disproportionate punishment and barbaric punishment. Section 12 governs the quality of the punishment. It does not require the treatment or punishment to be both cruel and unusual, however it must be so excessive as to outrage standards of decency. Put another way, the treatment or sentence must be grossly disproportionate to the extent that Canadians would find a treatment or punishment abhorrent or intolerable: see R. v. Smith (Edward Dewey), 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at pp. 1072, 1089-1090, 1109; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R.96.

[105] In Phanuef, the Ontario Court of Appeal acknowledged that mentally ill accused persons are exposed to a high risk of harm when they are detained in jail despite being subject to judicial orders that they be treated in hospital: “[t]here can be no doubt that the incarceration of mentally ill persons in a jail setting risks further deterioration of their mental state and potentially places them in real risk of physical harm.” [at para. 28]

[106] In the amended Statement of Claim, the plaintiff alleges that during the 50-day detention, he was subject to periodic violence, abuse and mistreatment by inmates, his symptoms of mental illness became more severe over the period of his detention, and he was provided with little opportunity for psychiatric treatment and counseling. It is further alleged that his long-term prognosis for recovery has been adversely affected and that he suffered mental anguish, distress and humiliation.

[107] Sufficient facts supporting a s. 12 Charter claim have been pleaded. Assuming the facts to be true, it is not “plain and obvious” such a Charter breach claim could not succeed. It is arguable the facts pleaded - that suffering these harms over the course of 50 days having been found NCR for the offenses committed - could amount to grossly disproportionate treatment that the public would find excessive enough to outrage the standards of decency in the unique circumstances of this case.

Damage claim under section 24(1) of the Charter

[108] In order to be a viable claim for damages under s. 24(1) of the Charter a prima facie Charter breach made out on the pleading alone is insufficient. Mala fides in the breach is a required element according to the jurisprudence. The Supreme Court of Canada in Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28 confirmed at para. 4, that damages may be awarded for a Charter breach under s. 24(1) where appropriate and just.

[109] In order to determine whether s. 24 (1) Charter damages may be awarded for a Charter breach, the court is to engage in a four-part inquiry as follows:

(1) Has a Charter right been breached?

(2) Are damages a just and appropriate remedy which would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches?

(3) Has the state demonstrated countervailing factors to defeat the functional considerations for awarding damages rendering an award of damages inappropriate or unjust?

(4) What is the appropriate and just quantum of damages?

[110] The Ontario Divisional Court confirmed in Forrest v. Ontario (Provincial Police), 2012 ONSC 429, [2012] O.J. No. 518 that wilfulness or mala fides must be proven in order to establish liability for damages under s. 24(1) of the Charter. At para. 62, the Divisional Court stated as follows:

“In our opinion, the liability for breach under s. 7 of the Charter requires wilfulness or mala fides in the creation of a risk or course of conduct that leads to damages. Proof of simple negligence is not sufficient for an award of damages in an action under the Charter. Bad faith is essential to establish the Charter breach.” McGillivray v. New Brunswick (1994), 1994 CanLII 4465 (NB CA), 116 D.L.R. (4^th) 104 [C.A.] and Ferri v. Ontario (Attorney General), [2007] O.J. No: 397 [C.A.]

[111] In this case, mala fides or bad faith on the part of the Crown is not alleged. Even where it is alleged pursuant to Rule 25.06(8), full particulars must be pleaded. Wilfulness has been alleged at paragraph 47, but particulars and material facts are not.

[112] In the amended Statement of Claim at paragraph 47, it states, “Both defendants were parties to the breach of Justice Schneider’s Order and the Order of the ORB, which breaches were committed knowingly and willfully, and without lawful excuse.”

[113] At paragraph 52 it states, “The defendants behaved recklessly in failing to abide by a lawful Order, the common law, the Criminal Code and the Charter.”

[114] Without material facts these are no more than bald allegations which do not meet the requirements of Rule 25.06(8). As a result, I strike paragraph 51 relating to the plaintiff’s s. 24(1) Charter damage claim with leave to amend.

Whether paragraphs 9, 20, 26, 28, 46 and 53 are scandalous, frivolous and vexatious and an abuse of process

[115] I agree with the moving party that there is no private cause of action for “contempt of a Court Order”. The plaintiff has confirmed that there is no claim being advanced for contempt of Court Order. As a result, all allegations against the named defendant, Her Majesty the Queen in Right of Ontario as represented by the Attorney General of Ontario at paragraphs 9, 46 and 53, to the extent that they assert such a claim are struck as disclosing no cause of action without leave to amend.

[116] Absolute privilege would attach to anything said or done during judicial proceedings. See: Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 CanLII 3776 (ON CA), 124 O.A.C 125 at para. 19(C.A.); Web Offset Publications Ltd. v. Vickery (1998), 40 O.R. (3d) 562 (Gen.Div.) at 8, aff’d (1999) 1999 CanLII 4462 (ON CA), 43 O.R. (3d) 802 (Ont.CA).

[117] I, therefore, order that paragraph 28 be struck in its entirety without leave to amend pursuant to Rule 25.11. That paragraph refers to argument made at a specific judicial proceeding for which absolute privilege would apply. The inclusion of the privileged representation in that paragraph of the pleading is, therefore, scandalous, frivolous or vexatious.

[118] I deny the request to strike paragraphs 20 and 26 of the amended Statement of Claim. I find these paragraphs are not scandalous, frivolous or vexatious based on the above legal principles.

Leave to Amend

[119] As drafted, the amended Statement of Claim fails to set out a reasonable cause of action for false imprisonment against the Crown given there are insufficient material facts pled which would take the claim outside the limited liability provisions referred to above as required by Rule 25.06(8).

[120] As well, the amended Statement of Claim fails to plead the material facts of willfulness and mala fides necessary to support an s. 24(1) Charter damage claim.

[121] In R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 19, the Supreme Court of Canada discussed motions to strike: “The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go to trial.” At para. 22 the Court emphasizes, given the importance of the pleadings to effective and fair litigation, what the plaintiff’s obligation in pleading is as follows: “It is incumbent on the plaintiff to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in position to prove the facts pleaded at the time of the motion. It may only hope to plead them. But plead them it must.”

[122] If the plaintiff has material facts which it has as of yet failed to plead that would make out such a claim, they are granted leave to amend accordingly.

[123] The plaintiff is also granted leave to amend to identify and provide material facts surrounding the involvement of any individual correctional officers, in the event such material facts exist, so as to bring the claim within the requirements of PACA.

[124] Because of the unique circumstances of this case including the findings of Justice Forestell in granting the habeus corpus application, and the fact that the Statement of Claim has been amended only once, an order permitting leave to amend is warranted and in the interests of justice.

Disposition

[125] For the reasons set forth above, I order as follows:

1. The plaintiff’s claim for false imprisonment against the Crown is struck. Leave to amend is granted to plead the material facts, if any, necessary to establish why the limited liability provisions in the Code, PACA, PAPA, MCSA and s. 142 of the CJA do not apply.

2. The plaintiff’s claim for s. 24(1) Charter damages is struck with leave to amend to plead the necessary material facts, if any, to make out more than a bald plea regarding willfulness and mala fides.

3. The plaintiff is granted leave to amend to identify and provide material facts, if any, regarding the involvement and motivation or conduct of the correctional officers in the events pleaded in the amended Statement of Claim.

4. Paragraph 28 of the amended Statement of Claim is struck without leave to amend.

5. Paragraph 9, 46 and 53 of the amended Statement of Claim are struck without leave to amend.

[126] I wish to thank counsel for both their written and oral submissions which were exceptional.

[127] I encourage the parties to agree on the costs. If they cannot, I may be contacted in order to set a timetable for cost submissions.

FIRESTONE, J.

DATE: January 22, 2014

COURT FILE NO: CV-12-456311

DATE: 20140122

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Bahaeddine Hneihen, by his Litigation Guardian, The Public Trustee

Plaintiff

• and -

Centre for Addiction and Mental Health (Queen Street Division), and Her Majesty the Queen in Right of Ontario as Represented by the Minister of Health and Long Term Care, Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community Safety and Correctional Services, and Her Majesty the Queen in Right of Ontario as Represented by the Attorney General of Ontario

Defendants

REASONS FOR DECISION

FIRESTONE J.

Released: January 22, 2014