BARRIE COURT FILE NO.: 13-0314
DATE: 20141230
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF an appeal from a decision of the
Consent and Capacity Board,
Pursuant to the Mental Health Act, R.S.O. 1990 c. M7
as amended
AND IN THE MATTER OF
Rodney Nelson
a patient at
Waypoint Centre for Mental Health Care – Oakridge Site
Penetanguishene, Ontario
BETWEEN:
RODNEY NELSON
Appellant
– and –
DR. C. LIVERMORE
Respondent
S. Fraser, for the Appellant
J. Blackburn, for the Respondent
Y. Ranganathan, for the Intervenor, Attorney General of Ontario
HEARD: December 4 and 5, 2014
ENDORSEMENT
HOWDEN J.:
[1] On December 4, 2014, when argument on this application began, I wrote down the issues as follows:
• What is the standard of review?
• Did the Consent and Capacity Board (“CCB”) err in applying the criteria from the Mental Health Act (“MHA”), R.S.O. 1990, c.M.7 to the evidence before it, having regard to the purpose and scheme of the Act?
• Does the appellant’s ongoing detention breach his rights under s. 7, as well as s.9, 11(h), and 12 of the Charter?
• Do the judgments in Starnaman v. Penetanguishene MHC (1995), 1995 1518 (ON CA), 24 O.R. (3d), 701 and Nelson v. Ontario, [2012] ONSC 1021 (SCJ) impact this appeal?
• If there is a breach of the appellant’s Charter rights, what is the appropriate remedy?
[2] On December 23, 2014, the case title of the judgment long under reserve became brutally shortened in the appellate decisions index to P.S. v. Ontario, 2014 ONCA 900. And after reading it, it has become clear that whatever of the detail everyone will agree on, or not, the ruling in this case is about to involve all of you over the coming months in different ways.
[3] In this case, of the five main issues, P.S. v. Ontario impacts four of them. Only the standard of review remains the same and it was always obvious. A copy of P.S. v. Ontario is attached hereto as Schedule “A”.
[4] First, and these are matters which in my view I am bound by the doctrine of stare decisis – it no longer matters whether the CCB got it right in this one instance:
- The principle that emerges from the cases discussed above is that where an individual is not being detained for punishment following conviction, but rather is detained simply because he or she poses a risk to public safety, the Charter’s guarantee of fundamental justice requires that there be a fair procedure to ensure, on a regular and ongoing basis, that:
(i) the risk to public safety continues; and
(ii) the individual’s liberty is being restricted no more than is necessary to deal with that risk.
[113] It is also implicit that protection of the liberty interest requires appropriate steps to be taken to facilitate, to the extent possible, the individual’s eventual re-integration into the community.
[114] In my view, the limited powers conferred upon the CCB fail to meet this constitutional standard. The constant refrain in the CCB’s decisions involving the appellant is that detention in a maximum security facility is not necessary, that he is not receiving the treatment he needs and that he requires the services of an interpreter. It is painfully evident from the CCB’s decisions and from the frustration expressed by its members that the MHA fails to provide the CCB with the tools necessary to ensure that the liberty interests of long-term involuntary patients are restricted no more that is necessary to deal with the risk they pose and that appropriate steps are being taken towards their eventual reintegration into the community.
[5] Next, as to the extent of the relief granted by the Court:
As a result of the procedurally inadequate powers of the CCB vis-à-vis long-term detainees, the appropriate remedy in the circumstances of this case is to limit the duration of MHA committals to approximately six months by declaring the words “or subsequent” in s. 20(4)(b)(iii) to be inconsistent with s. 7 of the Charter and therefore of no force or effect pursuant to s. 52(1). The effect of removing those words will be to respond to the specific issue that is raised by the facts of this case, namely, the inadequacy of the review procedure and the powers of the CCB in the context of long-term committals, by limiting the duration of involuntary committals to approximately six months.
P.S. v. Ontario
[6] Delay of Invalidity declaration to prevent release from custody of those long-term detainees who pose a threat to public safety:
[206] In this case, as in Swain and Demers, an immediate declaration of invalidity would pose a risk to public safety as it would result in the release of individuals who have been found to pose a serious risk of harm to the public. In such a situation, temporarily suspending the declaration is appropriate. Accordingly, while I would grant a declaration of invalidity, I would temporarily suspend that declaration for a period of twelve months from the date of these reasons to afford the legislature the opportunity to consider how best to deal with the issue of long-term involuntary committals and the powers of the CCB.
P.S. v. Ontario
[7] Finally as to the lasting authority of the Starnaman decision, and no doubt all cases that followed it, a topic close to the heart of Ms. Blackburn and Ms. Ranganathan,
[93] As I have noted, the application judge essentially disposed of the s. 7 argument on the ground that the issue had been conclusively determined by this court in Starnaman. This appeal was heard by a five-judge panel so that, if necessary, the decision in Starnaman could be reconsidered.
[104] I conclude, accordingly, that as the specific issue decided in Starnaman is not before us on this appeal and as Starnaman left open for future consideration the very issue that is before us, Starnaman is distinguishable and does not govern the case we have to decide.
[105] It follows that the application judge erred in law by ending his analysis at Starnaman and by failing to give full consideration to the legal arguments relating to the constitutionality of the involuntary committal provisions of the MHA.
P.S. v. Ontario
[8] In other words, if I had decided to use Starnaman as the end of the argument, as was urged on me several times, according to the Court of Appeal, I would have been in error.
[9] As I said earlier, it will take some time for the full impact of the P.S. v. Ontario decision to become known and accepted. In my view, it has rendered moot the motion that was brought before me. For Mr. Nelson is one of the class of patients most impacted by the P.S. decision – long-term involuntary patients for whom the process and the CCB’s place within that process, has been found to be below the constitutional standard to which they are entitled. There is a continuing process ahead for the long-term detainees provisions and the proper powers of the Board to be dealt with. No doubt most of you will be part of that process as this case is directly in the wake of the P.S. decision.
[10] I must leave you at this stage. I am retiring as of December 31, 2014, and the case requires a younger shepherd. I have tried to provide as much guidance as I can on what has happened. I hope it has been of some use. It is now for all of you to take a fresh look at this case after the last echoes of P.S. v. Ontario have died down and to see how best to serve your clients. Thank you for your courtesy to me throughout our brief but eventful time together.
HOWDEN J.
Released: December 30, 2014