ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO. 48179980770007145
DATE: 20141201
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
THE ONTARIO REVIEW BOARD
Respondent
- and –
THE PERSON-IN-CHARGE, CENTRE FOR ADDICTION AND MENTAL HEALTH
Respondent
- and –
ELIZABETH PETRONIUK
Applicant
Michael Feindel, for the Crown
Joseph Wright, for the Ontario Review Board
Gavin S. MacKenzie, for The Centre for Addiction and Mental Health
Daniel Moore, for the Applicant
HEARD: September 8, 2014
REASONS FOR JUDGMENT
Trotter J.
INTRODUCTION
[1] This case is about the powers of a “person in charge” of a hospital under Part XX.1 (Mental Disorder) of the Criminal Code. The Applicant, Ms. Petroniuk, contends that s. 672.56 of the Code, a provision that delegates broad powers to a person in charge, violates s. 7 of the Charter. For the following reasons, the application is dismissed.
BACKGROUND
[2] In 2007, Ms. Petroniuk was found not criminally responsible (NCR) on a charge of assault. She has been subject to the jurisdiction of the Ontario Review Board (ORB) ever since. She is currently detained at the Centre for Addiction and Mental Health (CAMH) in Toronto.
[3] During her time at CAMH, Ms. Petroniuk earned privileges permitting her to participate in many recreational programs and activities. Some of these activities take place on hospital grounds, while others are in the community. As Ms. Petroniuk said in an affidavit filed in this case, “[t]hese activities were very important to me and make up the bulk of my social life.”
[4] In July of 2013, Ms. Petroniuk attended a program at the CAMH library. Ms. Petroniuk believed that she was permitted to be there for 2.5 hours. CAMH staff came to retrieve her from the library, stating that she was only allowed to be off-ward for one hour. Ms. Petroniuk was considered to be AWOL. Consequently, all of her off-ward passes were revoked. This lasted for a couple of weeks. A new plan was developed for Ms. Petroniuk, whereby she was required to earn back her privileges. A year later, she was still not back in the same position she was in prior to having her privileges revoked. As she swore in her affidavit, this caused her great hardship.
[5] In the aftermath of the incident that gave rise to the revocation of Ms. Petroniuk’s privileges, her lawyer wrote to CAMH, seeking clarity on the matter. The next day, he wrote to various individuals, including Ms. Petroniuk’s doctor, counsel to the ORB and counsel at the Attorney General for Ontario, asking whether notice had been given under s. 672.52(2)(b) and requesting a hearing before the ORB be held under s. 672.81(2.1) (both provisions will be discussed below). There were further exchanges but, ultimately, the ORB decided not to hold a hearing because (1) the revocation of privileges did not constitute a “significant” restriction of liberty, and (2) some of the Ms. Petroniuk’s privileges had already been restored.
[6] Dr. Padraig Darby, a psychiatrist, swore an affidavit in these proceedings. Dr. Darby is the “person in charge” of CAMH and a member of the ORB. His affidavit addresses the challenges of administering a hospital with 120 in-patients subject to ORB dispositions, and another 330 patients that it treats and manages in the community.
[7] Dr. Darby describes in some detail the process by which passes and privileges are administered CAMH, being largely through a committee. Dr. Darby states that “I believe that it is reasonable to expect that passes will be extended and withdrawn in response to fluctuations in an accused’s clinical condition.” On the issue raised by this application, he stated: “In my view, declining an accused’s access to off-unit privileges is not a ‘significant’ restriction of liberty requiring notice to the ORB pursuant to section 672.56(2) of the Code.” He further explained that, because an accused cannot expect to have continued access to off-unit passes, “a refusal to issue a pass cannot be said to be a restriction of liberty as the accused is not entitled to any passes unless specific conditions are met.”
THE PROVISION
[8] As part of its various dispositions in Ms. Petroniuk’s case,[^1] the ORB has delegated to the person in charge of CAMH certain powers to adjust the scope of Ms. Petroniuk’s privileges and liberty. I understand that this is a standard condition of ORB dispositions. The power to make this delegation is found in s. 672.56(1) of the Code, which provides:
672.56(1) The Review Board that makes a disposition in respect of an accused under paragraph 672.54(b) or (c) may delegate to the person in charge of the hospital to direct that the restrictions on liberty of the accused be increased or decreased within any limits and subject to any conditions set out in that disposition, and any direction so made is deemed for the purposes of this Act to be a disposition made by the Review Board.
(2) A person who increases the restrictions on the liberty significantly pursuant to authority delegated to the person by a Review Board shall
(a) make a record of the increased restrictions on the file of the accused; and
(b) give notice of the increase as soon as is practicable to the accused and, if the increased restrictions remain in force for a period exceeding seven days, to the Review Board. [emphasis added]
[9] As discussed below, when the deprivation is significant and exceeds seven days and the Review Board receives the notice referred to in paragraph (b), the Board must hold a hearing under s. 672.81(2.1) to determine the appropriateness of the action taken.
THE POSITIONS OF THE PARTIES
[10] Mr. Moore argues that s. 672.56 of the Criminal Code violates s. 7 of the Charter because ss. (2) provides that only the “person in charge” may trigger a mandatory review before the ORB. Mr. Moore submits that the “person in charge” is in a conflict of interest because he (in this case) is the one deciding whether his own decision should be reviewed. This, Mr. Moore contends, gives rise to a reasonable apprehension of bias and results in a violation of s. 7.
[11] Mr. Moore submits that the section should be declared of no force and effect and that the words “and the accused person” be read into a provision, allowing the accused person to trigger the procedure. Alternatively, he submits that the provision should be struck down in its entirety.[^2]
[12] The Respondents (the Attorney General for Ontario and CAMH) resist the request for a declaration of constitutional invalidity, arguing that the application attempts to isolate one piece (s. 672.56) of a very complex legislative scheme. Counsel argue that, when s. 672.56 is considered in light of Part XX.1 as a whole, and given the ability of those who are subject to the ORB to appear before this court for prerogative relief, the provision is constitutionally valid. Lastly, counsel for the ORB attended at the hearing before me, but made no submissions.
ANALYSIS
[13] There can be no doubt that Ms. Petroniuk’s liberty interests under s. 7 of the Charter are engaged by the operation of s. 672.56: see Penetanguishene Mental Health Centre v. Ontario (Attorney General) (2004), 2004 SCC 20, 182 C.C.C. (3d) 193 (S.C.C.), at p. 202 and Hamish Stewart, Fundamental Justice (Toronto: Irwin Law, 2012), at pp. 73-74. The Respondents do not dispute this. The real question is whether the deprivation of liberty violates the principles of fundamental justice.
[14] Ms. Petroniuk contends that because she is not entitled to have the ORB automatically review significant restrictions on her liberty, the process is unfair. This is compounded by the appearance of bias inherent in vesting the person in authority with this power.
[15] The principles of fundamental justice do not entitle a Charter applicant to a particular type of process or the ideal procedure. Instead, they require a fair process that takes into account the nature of the proceedings and the liberty interests at stake: see R. v. Rodgers (2006), 2006 SCC 15, 207 C.C.C. (3d) 225 (S.C.C.), at pp. 253-254 and Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 20. What might be a fair process in one context may be found wanting in another: see Stewart, Fundamental Justice, supra, at pp. 224-226.
[16] In assessing whether s. 672.56 comports with the principles of fundamental justice, the provision must be considered in the context of Part XX.1 as a whole, and against the broader legal framework in which the Review Boards operate. As discussed below, numerous sections of Part XX.1 are engaged by Ms. Petroniuk’s request for constitutional relief.
[17] Section 672.56 permits Review Boards to include a range or privileges and/or conditions in its dispositions that could foreseeably be granted to an accused over the ensuing 12-month period. The purpose of delegating the authority to grant of these privileges to the person in charge is to allow an accused person to be gradually reintegrated into the community in a manner consistent with public safety, while permitting a tightening of controls when warranted by changes in the accused person’s mental health status: see R. v. C. (M.L.) (2010), 2010 ONCA 843, 274 C.C.C. (3d) 368 (Ont. C.A.), at para. 24.
[18] Without s. 672.56, Review Boards would be required to reconvene every time a hospital authority wishes to make any adjustment of privileges. Based on the affidavit of Dr. Darby, one of many persons so designated as a person in authority in Ontario, requiring the ORB to invigilate over these types of changes would create chaos in the hospitals, while at the same time inundating the Board.
[19] Section 672.56 is discussed in Joan Barrett and Riun Shandler, Mental Disorder in Canadian Criminal Law (Toronto: Carswell, 2006)(loose leaf). As they observe at p. 9-63:
Accordingly, the purpose of s. 672.56 is to allow for changes in the day-to-day management of an NCR accused to ensure that the treatment team is capable of responding quickly to a decompensation in the accused’s mental health condition which warrants an immediate but temporary variation of the disposition.
[20] It was never contemplated that Review Boards would micromanage the day-to-day operations of hospitals. As Binnie J. said in Penetanguishene Mental Health Centre v. Ontario (Attorney General), supra, at pp. 211-212:
Thus, within the outer envelope established by the Review Board order, a hospital administrator may move to restrict the detainee's liberty if circumstances warrant, although if the restriction is significant and lasts longer than seven days, the Review Board must be notified and a hearing held: see "Wording of Custodial Disposition Orders", s. 4 in Manual of Operating Guidelines for Provincial Psychiatric Hospitals (June 1995). If problems arise, such as a deterioration in the mental condition of a hospital detainee permitted residence in the community, the detainee can be returned to the hospital without the need of any prior order of a court or the Review Board.
The delegated authority, of course, must be exercised having due regard to the detainee's liberty interest in light of the twin goals of public safety and treatment, but it permits a degree of day-to-day fine tuning that, if properly exercised, will prevent the "least onerous and least restrictive" requirement from compromising achievement of treatment objectives.
This theme was further pursued in R. v. C. (M.L.), supra, in which Lang J.A. said at p. 380:
While the Board has the jurisdiction to review a patient's disposition at a particular hearing, it is not in a position to oversee the patient on a day-to-day basis and to refine the restrictions on his or her liberty. This is why the statutory framework gives the hospital the ability and flexibility to monitor patients who suffer from mental disorder. The responsibility for adjusting the restrictions for such a patient comes from s. 672.56(1), which allows the Board to delegate to the hospital certain decisions about the patient's liberty. Any restrictions the hospital places on the patient must fall within the envelope of the conditions enumerated by the Board in its disposition. As a safeguard, any decision by a hospital that significantly restricts a patient's liberty for more than seven days must be considered by the Board in a restrictions review.
See also Wiebe v. Manitoba (Attorney General) (2006), 2006 MBCA 87, 211 C.C.C. (3d) 161 (Man. C.A.), at pp. 181-185.
[21] Within this legislative framework, the existing review provisions must be considered. As noted above, s. 672.56(2) requires the person in authority to give notice to the Review Board if the significant restrictions on liberty exceed seven days. When this occurs, the mandatory review provisions are triggered. In these circumstances, s. 672.81(2.1) provides:
672.81(2.1) The Review Board shall hold a hearing to review a decision to significantly increase the restrictions on the liberty of the accused, as soon as practical after receiving a notice referred to in subsection 672.56(2). [emphasis added]
[22] Ms. Petroniuk argues that individuals in her situation ought to be able to trigger this same process and be entitled to a mandatory review. This boils down to an argument that she should be entitled to a review of any restrictions on her liberty that she considers to be significant, as long as they last for more than seven days. But this is precisely the type of Review Board micromanagement that s. 672.56 seeks to avoid.
[23] This is not to say that a person in Ms. Petroniuk’s situation is without an avenue of review. Section 672.82 vests a discretionary review power in Review Boards:
672.82(1) A Review Board may hold a hearing to review any of its dispositions at any time, of its own motion or at the request of the accused or any other party.
(1.1) Where a Review Board holds a hearing on a hearing under subsection (1) of its own motion, it shall provide notice to the prosecutor, the accused and any other party.
(2) When a party requests a review of a disposition under this section, the party is deemed to abandon any appeal against the disposition taken under s. 672.72.
[24] I recognize that there are some drawbacks associated with this provision. First, by its very nature, a review is not mandatory. Secondly, according to ss. (2), any party formally requesting a review is deemed to abandon an outstanding appeal against disposition. This is not an unreasonable restriction, which is designed to discourage unproductive re-litigation and an endless chain of Board reviews while old appeals remain outstanding.
[25] Moreover, the Board retains jurisdiction to hold a so-called “restrictions hearing” beyond the ambit of s. 672.56. This was demonstrated in the case at bar. While the Board ultimately declined to convene a restriction hearing, it was never suggested that it lacked the jurisdiction to do so. As s. 672.82(1) provides, a Review Board may hold a hearing to review any of its dispositions at any time and of its own motion: see Centre for Addiction and Mental Health v. Young (2011), 2011 ONCA 432, 273 C.C.C. (3d) 512 (Ont. C.A.), at pp. 517-518. The ORB has convened hearings in similar circumstances: see Pasha (Re), [2014] O.R.B.D. No. 641, Pratt (Re), [2012] O.R.B.D. No. 2318 and L.L.M. (Re), [2006] O.R.B.D. No. 244. Moreover, upon a request to conduct a hearing, a Review Board may decide to hold a hearing on its own initiative, avoiding the forfeiture of the accused person’s right of appeal under s. 672.82(3).
[26] Lastly, if an NCR accused is unsuccessful in having the person in authority give notice under s. 672.56(2), or if the Board refuses to convene a hearing under s. 672.82, an application for mandamus lies to a judge of this court: see Conway v. Barbaree (2010), 215 C.R.R. (2d) 230 (Ont. S.C.J.).
[27] Accordingly, when s. 672.56 is considered in light of the other applicable review provisions, and against the broader legal framework in which Part XX.1 operates, the procedure for seeking redress for revoked privileges is a fair one.
[28] As part of her s. 7 claim, Ms. Petroniuk argues that, under s. 672.56, a person in authority is in a conflict of interest because he or she is placed in the position of deciding whether his or her own decision should be reviewed. Procedural fairness under s. 7 requires that liberty determinations be made by an impartial and independent decision maker: see Charkaoui v. Canada (Citizenship and Immigration), supra, at para. 32, Pearlman v. Manitoba Law Society Judicial Committee, 1991 26 (SCC), [1991] 2 S.C.R. 869, at para. 31 and Stewart, Fundamental Justice, supra, at pp. 226-230. A legislative structure that gives rise to a reasonable apprehension of bias would run afoul of this rule.
[29] There is a long line authority that addresses this fundamental principle of law. Boiled down to its essentials in the criminal context, Cory J. held in R. v. S. (R.D.) (1997), 1997 324 (SCC), 118 C.C.C. (3d) 353 (S.C.C.), at p. 390, that, not only must the person considering the alleged bias be reasonable, but “the apprehension of bias must also be reasonable in the circumstances of the case.” See the recent treatment of this doctrine in Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793, at paras. 58 to 65.
[30] When considered in its broader context, s. 672.56(2) does not violate these principles. First, as Dr. Darby states in his affidavit: “I would never purposely withhold information from the ORB of a significant restriction of an accused’s liberty. Not only would this be contrary to the direction give to me in s. 672.56(2) of the Criminal Code as the person in charge of CAMH, it would be professionally irresponsible and potentially damaging to both my and CAMH’s reputation.” Dr. Darby’s evidence stood unchallenged and I accept it in general, and on this issue in particular. I am satisfied that there was no bias in fact.
[31] Moreover, I am not satisfied that s. 672.56(2) gives rise to a reasonable apprehension of bias. Section 672.56(2) does not create a discretion to be exercised by a person in authority; it imposes a statutory duty of notification, triggering the Review Board’s duty to convene: see Barrett and Shandler, Mental Disorder in Canadian Criminal Law, supra, at p. 9-60.3. The question posed to the person in authority is not “Should my decision to restrict liberty be reviewed?” Instead, the question is “According to the decisions of the ORB and the Court of Appeal for Ontario, does my decision significantly increase the restrictions on the liberty of the accused?”[^3] If the answer to this question is “yes”, then the person in authority must comply with s. 672.56(2)(b). Cast in this manner, far from giving rise to a reasonable apprehension of bias, the person in authority is ideally situated to discharge this duty.
[32] Mr. Feindel for the Attorney General for Ontario submits that “[w]hether or not a restriction is ‘significant’ is a question of law and one that the Review Board decides.” The person in charge must apply the law to the facts in individual cases. But this is not always a straightforward exercise, for as Mr. MacKenzie on behalf CAMH points out, the ORB jurisprudence is “divided” on whether the loss of passes and privileges for more than seven days is a significant restriction on liberty.[^4] This important aspect of s. 672.56 requires greater clarity, perhaps from the ORB, or from the appellate courts: see Wiebe v. Manitoba (Attorney General), supra, at pp. 185-186 and Saikaley (Re) (2012), 2012 ONCA 92, 109 O.R. (3d) 262 (C.A.), at para. 8.[^5] In any event, the existing uncertainty on this definitional issue does not give rise to a reasonable apprehension of bias or a consequent infringement of s. 7 of the Charter.
[33] For these reasons, I find that s. 672.56 does not infringe s. 7 of the Charter and the application is dismissed.
CONCLUding remarks
[34] In concluding these reasons, I wish to address a point made by Mr. Feindel in his Factum, in which says:
It is with regret that the alleged restriction of liberty appears to have arisen out of a confusion as to the duration of a “program-based” pass to make use of the library on the hospital premises. The applicant was located in the place where she said she would be when staff went looking for her. It is somewhat confounding how these circumstances, if correct, gave rise to a suspension of all off-ward privileges for in excess of seven days.
[35] I agree with these poignant observations. On the record before me, it would appear that these rather drastic consequences were intended to punish Ms. Petroniuk, rather than being responsive to a change in her mental health status.
[36] I wish to thank all counsel for their helpful submissions.
___________________________ Trotter J.
Released: December 1, 2014
DATE: 20141201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
THE ONTARIO REVIEW BOARD
Respondent
- and –
THE PERSON-IN-CHARGE, CENTRE FOR ADDICTION AND MENTAL HEALTH
Respondent
- and –
ELIZABETH PETRONIUK
Applicant
REASONS FOR JUDGMENT
Trotter J.
Released: December 1, 2014
[^1]: The last Disposition was made on April 24, 2013. An appeal from this disposition was dismissed by the Court of Appeal: 2014 ONCA 1976
[^2]: Ms. Petroniuk also sought an order of mandamus, pursuant to s. 24(1) of the Charter, requiring the ORB to convene a restriction hearing under s. 678.81(2.1) of the Code. Given that Ms. Petroniuk has since been before the ORB for another annual hearing that post-dated the incident giving rise to the revocation of her privileges, she no longer seeks this relief.
[^3]: By way of analogy, see Huynh v. Canada (Minister of Citizenship and Immigration) (1996), 1996 4047 (FCA), 134 D.L.R. (4th) 612 (F.C.A.), at para. 39.
[^4]: Cases supporting the position that it is not a significant restriction include L.L.M. (Re), [2006] O.R.B.D. No. 244, Valcheff (Re), [2009] O.R.B.D. No. 2238 and Re J.F., [2014] O.R.B.D. No. 683. Cases reaching the opposite conclusion include Stephenson (Re), [2008] O.R.B.D. No. 887, Kelly (Re), [2014] O.R.B.D. No. 1098 and Ly (Re), [2013] O.R.B.D. No. 327.
[^5]: While counsel were helpful in their submissions concerning the decisions of the ORB on what constitutes a significant restriction on liberty, this application does not require me to address this definitional issue. In any event, this is a matter best left to the expertise of the ORB to address through its evolving jurisprudence, subject to the supervisory role of the Court of Appeal: see R. v. Conway (2010), 2010 SCC 22, 255 C.C.C. (3d) 506 (S.C.C.), at pp. 541-542.