Her Majesty the Queen v. Walker

[Indexed as: R. v. Walker]

Ontario Reports

Ontario Superior Court of Justice,

Code J.

April 15, 2016

130 O.R. (3d) 272 | 2016 ONSC 2299

Case Summary

Criminal law — Mental disorder — Unfit accused — Treatment order — Schizophrenic accused found unfit to stand trial — Statutory preconditions for treatment order under s. 672.58 of Criminal Code being met but judge declining to make treatment order on basis that accused was not consenting to treatment — Crown bringing application for certiorari to quash decision — Accused having been successfully treated following civil treatment order being made and substitute consent to treatment being obtained — Superior Court agreeing to entertain motion despite mootness as issue likely to recur and difficult to review before becoming moot — Judge having residual discretion under s. 672.58 to refuse to make treatment order but that discretion not being broad and unlimited — Judge erring in exercise of her discretion by failing to consider statutory purpose of s. 672.58 and by considering matters that were inconsistent with or extraneous to that purpose — Error not jurisdictional in nature — Application dismissed — Criminal Code, R.S.C. 1985, c. C-46, s. 672.58.

The accused was charged with assault. She suffered from schizophrenia and was not taking prescribed medication. She was found to be unfit to stand trial. The Crown applied for a treatment order under s. 672.58 of the Criminal Code. The statutory preconditions for a treatment order were met, but the judge exercised her discretion not to make a treatment order on the basis that the accused was not consenting to treatment. The Crown brought an application for an order in the nature of certiorari to quash that decision. The accused was found to be incapable of consenting to treatment and Public Guardian and Trustee providing substitute consent. After receiving treatment, the accused became fit to stand trial and was returned to court.

Held, the application should be dismissed.

The parties agreed that this issue was likely to recur and that it would be evasive of review so the motion was determined on the merits despite being moot. Although some residual discretion exists under s. 672.58, it is not broad and unlimited. It is constrained by at least the following considerations. First, the preconditions listed in s. 672.59 are the most important considerations and they make out a strong prima facie justification for a s. 672.58 treatment order. Second, any additional discretionary considerations must be consistent with the legislative context, that is, with the criminal law purpose of the surrounding Part XX.1 fitness provisions, namely, to attain the ongoing treatment or [page273] assessment of the accused in order for him or her to become fit for an eventual trial while preserving his or her maximum liberty and dignity. Third, any additional discretionary considerations must be consistent with the legislative purpose of s. 672.58 itself, namely, involuntary treatment of an unfit accused without the accused's consent but with the hospital's consent, according to the treatment provider's view of what is appropriate and effective, in order to avoid a potentially lengthy period of detention for the unfit accused. The psychiatrist noted that if a person appeals a civil treatment order to the Consent and Capacity Review Board the process can be lengthy, in some cases, stretching to two years. In this case, the accused's lack of consent became a predominant consideration, the criminal law context and criminal law purpose of the provisions was overlooked or given little weight, and a system of civil rights under provincial legislation was given primacy even though it risked causing treatment delays and prolonged custody for the accused. Were a court to decline to make an order under s. 672.58 in any case in which an accused indicated a preference for dealing with consent to treatment issues in the civil context, it would effectively eviscerate the Criminal Code provision. The judge exercised her discretion unreasonably, and committed an error of law by failing to consider the statutory purpose of s. 672.58 and by considering matters that were inconsistent with or extraneous to that purpose. However, her error was not jurisdictional in nature so the application for certiorari was dismissed.

Cases referred to

CAMH v. Al-Sherewadi, [2011] O.J. No. 1755, 2011 ONSC 2272 (S.C.J.), consd

Other cases referred to

Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6, 99 D.L.R. (4th) 350, 146 N.R. 270, J.E. 93-242, 78 C.C.C. (3d) 510, 18 C.R. (4th) 374, 13 C.R.R. (2d) 65, [1993] 1 C.T.C. 111, 93 D.T.C. 5018, 37 A.C.W.S. (3d) 1297, 18 W.C.B. (2d) 355; Centre for Addiction and Mental Health v. Ontario (2012), 111 O.R. (3d) 19, [2012] O.J. No. 2253, 2012 ONCA 342, 259 C.R.R. (2d) 286, 292 O.A.C. 20, 94 C.R. (6th) 405, 284 C.C.C. (3d) 359, 101 W.C.B. (2d) 548; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, EYB 1994-67668, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, 2006 SCC 7, 264 D.L.R. (4th) 10, 346 N.R. 1, J.E. 2006-620, 222 B.C.A.C. 1, 46 Admin. L.R. (4th) 1, 206 C.C.C. (3d) 161, 36 C.R. (6th) 1, EYB 2006-102437, 68 W.C.B. (2d) 722; R. v. Conception, [2014] 3 S.C.R. 82, [2014] S.C.J. No. 60, 2014 SCC 60, 13 C.R. (7th) 317, 462 N.R. 315, 378 D.L.R. (4th) 255, 2014EXP-3040, J.E. 2014-1738, EYB 2014-242683, 322 O.A.C. 199, 316 C.C.C. (3d) 182, 116 W.C.B. (2d) 393; R. v. Demers, [2004] 2 S.C.R. 489, [2004] S.C.J. No. 43, 2004 SCC 46, 240 D.L.R. (4th) 629, 323 N.R. 201, J.E. 2004-1375, 185 C.C.C. (3d) 257, 20 C.R. (6th) 241, 120 C.R.R. (2d) 327, 61 W.C.B. (2d) 550; R. v. Deschamplain, [2004] 3 S.C.R. 601, [2004] S.C.J. No. 73, 2004 SCC 76, 252 D.L.R. (4th) 289, 347 N.R. 347, J.E. 2007-233, 211 O.A.C. 323, 196 C.C.C. (3d) 1, 65 W.C.B. (2d) 132; R. v. Dubois, 1986 60 (SCC), [1986] 1 S.C.R. 366, [1986] S.C.J. No. 21, 26 D.L.R. (4th) 481, 66 N.R. 289, [1986] 3 W.W.R. 577, J.E. 86-450, 41 Man. R. (2d) 1, 18 Admin. L.R. 146, 25 C.C.C. (3d) 221, 51 C.R. (3d) 193, 17 W.C.B. 9; R. v. Faulkner, [2013] O.J. No. 2315, 2013 ONSC 2373, 282 C.R.R. (2d) 95 (S.C.J.); R. v. Forsythe, 1980 15 (SCC), [1980] 2 S.C.R. 268, [1980] S.C.J. No. 66, 112 D.L.R. (3d) 385, 32 N.R. 520, 53 C.C.C. (2d) 225, 19 C.R. (3d) 261, 15 C.R. (3d) 280, 5 W.C.B. 6; R. v. Jaser, [2015] O.J. No. 3910, 2015 ONSC 4729 (S.C.J.); R. v. Johnson, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 2003 SCC 46, 230 D.L.R. (4th) 296, 308 N.R. 333, [2004] 2 W.W.R. 393, J.E. 2003-1825, 186 B.C.A.C. 161, 19 B.C.L.R. (4th) 243, 177 C.C.C. (3d) 97, 13 C.R. (6th) 205, 58 W.C.B. (2d) 154; [page274] R. v. Russell, [2001] 2 S.C.R. 804, [2001] S.C.J. No. 53, 2001 SCC 53, 203 D.L.R. (4th) 1, 274 N.R. 247, J.E. 2001-1732, 150 O.A.C. 99, 157 C.C.C. (3d) 1, 44 C.R. (5th) 231, 50 W.C.B. (2d) 509; R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93, [1984] S.C.J. No. 32, 11 D.L.R. (4th) 161, 54 N.R. 34, [1984] 5 W.W.R. 52, J.E. 84-607, 9 Admin. L.R. 153, 13 C.C.C. (3d) 161, 41 C.R. (3d) 1, 12 W.C.B. 349; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 125 N.R. 1, J.E. 91-765, 47 O.A.C. 81, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582; R. v. Szostak (2012), 111 O.R. (3d) 241, [2012] O.J. No. 3330, 2012 ONCA 503, 294 O.A.C. 147, 94 C.R. (6th) 48, 289 C.C.C. (3d) 249, 103 W.C.B. (2d) 111; R. v. Taylor (1992), 1992 7412 (ON CA), 11 O.R. (3d) 323, [1992] O.J. No. 2394, 59 O.A.C. 43, 77 C.C.C. (3d) 551, 17 C.R. (4th) 371, 13 C.R.R. (2d) 346, 18 W.C.B. (2d) 74 (C.A.); Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, 2005 SCC 41, 253 D.L.R. (4th) 577, 335 N.R. 201, J.E. 2005-1234, 200 O.A.C. 348, 197 C.C.C. (3d) 1, 29 C.R. (6th) 251, 132 C.R.R. (2d) 178, 65 W.C.B. (2d) 621, affg (2003), 2003 13331 (ON CA), 67 O.R. (3d) 577, [2003] O.J. No. 4006, 232 D.L.R. (4th) 217, 178 O.A.C. 60, 178 C.C.C. (3d) 349, 17 C.R. (6th) 392, 110 C.R.R. (2d) 288, 59 W.C.B. (2d) 515 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 2, 24(1)

Criminal Code, R.S.C. 1985, c. C-46, ss. 2 [as am.], 266 [as am.], 515 [as am.], 615(7) [rep.], Part XX.1 [as am.], 672.1 [as am.], 672.11 [as am.], 672.14 [as am.], 672.22, 672.27, 672.29, 672.46(1), (2), 672.47(1), 672.54 [as am.], 672.58, 672.59, 672.62, (2)

Health Care Consent Act, S.O. 1996, c. 2, Sch. A [as am.], ss. 10, 18, 20 [as am.], 32, 36 [as am.], 37 [as am.], 80 [as am.]

Authorities referred to

Blake, Sara, Administrative Law in Canada, 5th ed. (Markham, Ont.: LexisNexis, 2011)

Régimbald, Guy, Canadian Administrative Law, 2nd ed. (Markham, Ont.: LexisNexis, 2015)

Schneider, Richard, "Mental Disorder in the Courts" (1996), 17 C.L.A. Newsletter, No. 4

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: LexisNexis, 2002)

Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014)

APPLICATION for an order of certiorari.

Michael Feindel, for Crown applicant.

Jesse DiCecca, for respondent.

CODE J.: —

A. Introduction: Procedural History and the Decision Below

[1] This is an application brought by the Crown seeking an order in the nature of certiorari and mandamus. The Crown submits that Hogan J. committed jurisdictional error when she declined to make a treatment order in relation to the [page275] respondent, Margaret Walker, pursuant to s. 672.58 of the Criminal Code, R.S.C. 1985, c. C-46. Ms. Walker was charged with a minor criminal offence and she had been found unfit.

[2] The procedural background to the present application involves the intersection of a number of relatively complex Criminal Code provisions, as well as provincial legislation. The proceedings below took place in one of the specialized courts established by the Ontario Court of Justice, known as the Mental Health Court. It is located at Old City Hall in downtown Toronto.

[3] The respondent, Margaret Walker, was charged in an information with a single count of common assault, contrary to s. 266 of the Criminal Code. The information was sworn on December 9, 2015, and the events relating to the assault allegation took place the previous day, on December 8, 2015.

[4] Ms. Walker was held in custody for a bail hearing. She had a history of mental illness but no criminal record. The matter came on before Bigelow J. in the Ontario Court of Justice on December 11, 2015. By this point, Ms. Walker was represented by counsel. A bail hearing was commenced. However, Ms. Walker indicated, "I won't sign no [bail] paper today . . . . . . I have to watch what I am signing." After making an initial inquiry, Bigelow J. ordered an assessment by the in-court psychiatrist, Dr. M. Patel. This brief assessment at court was inconclusive. Dr. Patel advised counsel that Ms. Walker "may be unfit, she may not be". Counsel for the Crown and for the defence jointly recommended a five-day assessment at the Centre for Addiction and Mental Health ("CAMH"), pursuant to ss. 672.11 and 672.14 of the Criminal Code. Ms. Walker advised counsel that she was "agreeable to go to a hospital to be assessed". Bigelow J. then made the requested order. As a result, the bail hearing was never completed and no bail order was made.

[5] The five-day remand for assessment expired on December 18, 2015. On that date, the matter came back before Hogan J. A report from CAMH dated December 16, 2015 had been received. It was prepared by Dr. K. Patel and concluded that "Ms. Walker is unfit to stand trial". Dr. K. Patel went on to recommend that Ms. Walker "be returned to hospital under a Treatment Order . . . it is likely that fitness can be restored". At counsel's request, Hogan J. ordered a further assessment by the in-court psychiatrist. Dr. M. Patel did a brief further assessment and agreed that, "from a psychiatric perspective, Ms. Walker is unfit to stand trial". Defence counsel did not challenge either of the two assessments and Hogan J. made "a finding of unfit to stand trial", pursuant to ss. 672.22 and 672.27 of the Criminal Code. [page276]

[6] The Crown then applied for a treatment order pursuant to s. 672.58. Dr. M. Patel testified at the hearing concerning the mandatory s. 672.59 criteria for such an order. Hogan J. was satisfied that these statutory criteria had been met but she declined to make a treatment order. She stated:

. . . despite the fact that I heard testimony from Dr. Patel that he felt, in his expert view, that the statutory criteria had been satisfied, I recognize that, but I still recognize that I have discretion. The fact that discretion is there, it is there for a reason, and I guess this is one of those situations where it applies, given what I am hearing, and so I am not making a Treatment Order and I will simply send it to the ORB (the Ontario Review Board).

(Emphasis added)

[7] The main basis for Hogan J.'s exercise of discretion pursuant to s. 672.58 was that counsel for Ms. Walker (who was not Mr. DiCecca) had submitted that Ms. Walker was not consenting to the requested treatment order. Counsel stated the following:

Just because my client is unfit, it doesn't mean I can't receive instructions. And my instructions are very clearly that she does not want to be sent back on this criminal Treatment Order. So I have unequivocal instructions to that effect.

(Emphasis added)

[8] Counsel went on to make a somewhat political, or at best a public policy submission, to the effect that a s. 672.58 treatment order "is an example of just criminalizing treatment . . . If there is a Treatment Order that is it, it's over, it's done . . . she has got no appeal." He expressed a preference for treatment under "the civil system . . . the co-existing provincial legislation", where there would be a capacity hearing and a substitute decision maker, as opposed to "the criminal way of treating mentally ill persons". He concluded as follows:

. . . for Ms. Walker, in her particular circumstances, the Treatment Order here is tantamount to being punitive and disproportionate. She would like to have her full rights with respect to her treatment decisions . . . this would not be an appropriate case to take away her rights.

(Emphasis added)

[9] Hogan J. essentially adopted the above submission from defence counsel as the basis for her exercise of discretion. She stated:

I, in a case like this, where I am hearing that she does not want this Treatment Order to be made, she has certain rights that I think ought to be protected. I think that just because we are in this [criminal] system, and that there is another [civil] system which may allow her to have more of a voice, and it is being urged by her counsel that I allow her to use that system, I am not convinced by anything I have heard today that there is anything so compelling that would say to me I should issue the Treatment Order and not [page277] go the other route. I just have not heard anything that is telling me that that is necessarily the route I should not go, and that this is what she, as an individual with certain rights, is saying she wants. It gives her a voice in the process, and I am prepared to do that.

(Emphasis added)

[10] Having refused to make the requested s. 672.58 treatment order, Hogan J. issued a warrant of committal under s. 672.46(2), remanding Ms. Walker to CAMH to await whatever disposition the Ontario Review Board should make.

[11] Four days later, on December 22, 2015, the Attorney General for Ontario brought the present application. It seeks an order in the nature of certiorari with mandamus in aid, quashing Hogan J.'s decision and remitting the matter back to her for further consideration in accordance with the governing Criminal Code provisions.

[12] The Crown's application for certiorari and mandamus was heard by me on March 10, 2016. By this time, there had been a number of further developments. Ms. Walker had returned to CAMH on December 18, 2015 pursuant to the warrant of committal. On December 21, 2015, the staff psychiatrist at CAMH, Dr. K. Patel, found Ms. Walker incapable of consenting to treatment. The CAMH records then note the following:

Capacity to consent for treatment: Found incapable on 21 Dec 2015. Refused to speak to Rights Advisor. Mother declined to be SDT [substitute decision maker]. PGT [Public Guardian and Trustee] consent obtained and Paliperidone IM started on 23 Dec.

(Emphasis added)

[13] Given that Ms. Walker "refused to speak" to the "Rights Advisor", it may be that she never learned of her statutory right of appeal from the finding of incapacity, pursuant to the applicable provincial legislation. There is no mention of that right of appeal in the CAMH records or of any waiver of that right. The Public Guardian and Trustee's substitute consent to treatment, dated December 23, 2015, noted that paliperidone is "to treat psychosis". In addition, substitute consent was given for lorazepam in order "to treat agitation and increased level of arousal, irritability", and substitute consent was given for Cogentin in order "to treat side effects of Paliperidone".

[14] On February 8, 2016, after about six weeks of treatment, the Ontario Review Board held its initial hearing in relation to Ms. Walker at CAMH. Four days later, on February 12, 2016, the board issued a disposition. It found that "the accused is at present fit to stand trial". The board ordered Ms. Walker "sent back to court without delay to have the court determine her [page278] fitness to stand trial". The board also made orders relating to Ms. Walker's ongoing detention at CAMH.

[15] On February 23, 2016, the respondent was returned to court and was found fit to stand trial. A bail hearing was held and the respondent was ordered released on her own recognizance with certain conditions. She continued to receive treatment at CAMH pursuant to the provisions of the provincial Mental Health Act and Health Care Consent Act. Her next court appearance was scheduled for April 6, 2016.

[16] In light of the above developments, the Crown abandoned its application for an order in the nature of mandamus. It continued to seek an order in the nature of certiorari, quashing the decision of Hogan J. The correctness of Hogan J.'s original decision, declining to make a Criminal Code treatment order, has now become moot. Nevertheless, the parties submitted that I should hear the matter because the issue is "capable of repetition, yet evasive of review". I agree that this is a proper basis to hear and decide the issue even though it is now moot. See Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326, [2006] S.C.J. No. 7, at para. 15; Centre for Addiction and Mental Health v. Ontario (2012), 2012 ONCA 342, 111 O.R. (3d) 19, [2012] O.J. No. 2253, 284 C.C.C. (3d) 359 (C.A.) ("CAMH v. Ontario"), at paras. 21-23.

[17] I reserved judgment at the end of oral argument. These are my reasons for judgment.

B. Facts

[18] Ms. Walker is 41 years old. As previously noted, she has no criminal record. She suffers from schizophrenia. When the bail hearing commenced before Bigelow J., she acknowledged mental illness in the past but not in the present. She stated, "I do not suffer from any diseases today . . . I am a person that suffers from mental diseases . . . When I was sick, I admit I was sick, and I took the medication that they give me when I was sick. Now, I am not sick, I don't need it . . . I'm not sick, or suffer from illness . . . So set me free. That is the rule now."

[19] The Crown and defence counsel both read in a synopsis of the allegations that led to the assault charge, as follows:

. . . she [Ms. Walker] and the alleged complaint in this matter, they reside at a residence. It's called Drew's Residential Services. It's located . . . in Toronto. It's a residential service that provides assistance for individuals who have various challenges, including mental health issues, and they require assistance with their activities . . . She [Ms. Walker] receives medication for schizophrenia. Although she has refused medication for the last three or four months and has, as a result, become increasingly combative with the staff and fellow residents. [page279]

The accused entered the kitchen. Asked the complainant what she was cooking. As the conversation continued, the accused became very agitated and grabbed the complainant by the arm. The accused squeezed the complainant's arm with enough pressure to cause a bruise.

[20] Dr. K. Patel's report from CAMH dated December 16, 2016 stated that Ms. Walker "demonstrated evidence of abnormal paranoid and self-referential delusional beliefs, had disorganized thoughts, and lacked insight. She was observed talking and gesticulating to herself as if responding to internal stimuli. Ms. Walker declined any medication treatment . . . Ms. Walker is not considered certifiable, according to the Mental Health Act . . . The most appropriate diagnosis . . . is that of schizophrenia, paranoid type . . . she was diagnosed with schizophrenia in 1994 and has had a number of relapses resulting in hospitalization over the years."

[21] In terms of the so-called Taylor test for fitness to stand trial, Dr. K. Patel's report stated:

I believe Ms. Walker does not appropriately understand the nature and object of her criminal proceedings. She does not understand the possible consequences of the proceedings. She does not appear able to properly participate in the proceedings, including communicate with counsel, as a consequence of her mental health problems. Therefore . . . I believe Ms. Walker is unfit to stand trial from a psychiatric perspective, at the present time.

See R. v. Taylor (1992), 1992 7412 (ON CA), 11 O.R. (3d) 323, [1992] O.J. No. 2394, 77 C.C.C. (3d) 551 (C.A.), where the "limited cognitive capacity" test for fitness is set out.

[22] Dr. K. Patel's report went on to make certain recommendations as to treatment. The report stated:

Should the Court find that Ms. Walker is unfit to stand trial, I would respectfully recommend that she be returned to hospital under a Treatment Order. I believe it is likely that fitness can be restored if Ms. Walker's schizophrenic illness is appropriately treated with anti-psychotic, anxiolytic, and anti-cholinergic medication. A bed will remain open for her . . . at CAMH and she will be able to return forthwith from Court.

[23] The further assessment carried out at court on December 18, 2015 by Dr. M. Patel was to similar effect. Dr. M. Patel testified as follows:

I have seen her today, she continued to present as highly paranoid. She was not able to answer the Taylor test questions. She believed that she did not actually face charges, that they had all been dropped, and she went on to become increasingly agitated and angry, and made threats towards myself. She was not able to engage in the interview process and she would not be able to engage meaningfully in the court room processes here today . . . her thoughts remain disorganized and this is in keeping with her underlying [page280] diagnosis of schizophrenia and her current presentation, in my opinion, would be an example of her symptoms.

[24] Dr. M. Patel also testified in relation to the issue of treatment, in particular, the mandatory statutory criteria in s. 672.59 for a treatment order. Dr. M. Patel testified that

Ms. Walker would benefit from the treatment of her underlying mental illness . . . anti-psychotic medications would be most beneficial, as well as treatment with medication such as mood stabilizing agents, if needed, anxiolytic medications . . . to target symptoms of anxiety . . . Given the nature of her underlying mental illness, and that being schizophrenia, treatment with anti-psychotic medications would be expected to improve her mental state, and she would likely return to a state of fitness within 60 days.

Without such treatment,

. . . she would likely not become fit to stand trial . . . There is a risk of harm should she not undertake treatment. Her mental state would be expected to continue to worsen . . . an untreated psychosis can actually lead to disruptions in one's cognitive abilities . . . there is great risk to her not being treated for symptoms of psychosis, and the benefits of treatment outweigh the risk of harm . . . The use of oral medications would present the least intrusive means by which medications could be provided to Ms. Walker. Should it be required or should she refuse oral medications, injection medication may be provided in that instance . . . When individuals are presented with the alternative between oral medications and injection medications while under an Order, such a Treatment Order, they may choose then to take the oral medications, thus to avoid injections.

[25] In cross-examination, Dr. M. Patel was asked about the civil treatment regime under provincial legislation. Dr. M. Patel testified that

Ms. Walker would likely be incapable of making treatment decisions given her lack of insight . . . When an individual is found incapable of making treatment decisions, their treatment is decided by a substitute decision maker. They may then appeal that decision. They may then adamantly refuse medications and it is only with a very long process potentially, and with approval by an SDM, that the medication thereby be provided to them against their will. . . . for an individual to be admitted under the Mental Health Act to undertake a finding of incapacity, to move through the processes of any potential appeals, it can be a matter of years before an individual would start on treatment. In fact, they may not be started on treatment.

[26] Dr. M. Patel contrasted the civil treatment system, under provincial law, with

a Criminal Code Treatment Order [where] the ability to initiate treatment is expedited . . . treatment is held within the context of restoring an individual to a state of fitness . . . practically speaking, they [the two systems] are very different . . . in the civil system . . . there may be a significant delay in being able to provide someone with treatment . . . I have worked with many clients who oppose treatment, who have been provided with an [page281] SDM . . . These processes take significant amounts of time, and my experience as a forensic psychiatrist has been on that [civil] side of things of being involved in very lengthy proceedings . . . It really depends on whether or not an individual appeals the finding [of incapacity]. I have seen processes last anywhere from one week to years . . . So if an individual has not started treatment, has appealed the [incapacity] decision, they actually will not initiate treatment until that appeal has worked its way through, and they may re-appeal, and I have been involved in cases where that has happened and it has gone on for years, for a couple of years at least, where an individual has not received treatment . . . That is a possibility.

(Emphasis added)

[27] The defence called no evidence, either at the fitness hearing or at the treatment order hearing. However, Ms. Walker repeatedly interrupted the proceedings and stated that she was opposed to treatment: "I don't need a civil . . . I don't agree with that. I don't need a Treatment Order . . . I don't need treatment . . . Why do you want me to have treatment."

C. The Two Statutory Schemes for Involuntary Treatment

[28] The status of being "unfit to stand trial" always existed at common law. Historically, the Criminal Code added little to the common law regime concerning unfitness. In particular, there was no statutory or common law power relating to treatment of an unfit accused. A finding of unfitness meant that the accused went into a state of legal limbo, held indefinitely in custody at a mental hospital "until the pleasure of the Lieutenant Governor of the province is known", as s. 615(7) used to provide. This all changed in 1991, after the Supreme Court's seminal decision in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 63 C.C.C. (3d) 481. Parliament enacted a modern post-Canadian Charter of Rights legislative regime in Part XX.1 of the Criminal Code, addressing appropriate procedures and remedies for mentally ill accused in cases of both unfitness and lack of criminal responsibility. See R. v. Jaser, [2015] O.J. No. 3910, 2015 ONSC 4729 (S.C.J.), at paras. 37-43, where the history of these provisions and the leading authorities are summarized.

[29] The most important statutory provisions, for purposes of the present application, begin with the definition of "unfitness" and the finding of "unfitness" pursuant to ss. 2 and 672.22. These provisions are as follows:

2. unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or [page282]

(c) communicate with counsel.

672.22 An accused is presumed fit to stand trial unless the court is satisfied on the balance of probabilities that the accused is unfit to stand trial.

[30] Once a finding of "unfitness" has been made, the court must decide whether to make a "disposition". That remedial term is defined and explained in ss. 672.1 and 672.54, as follows:

672.1(1) in this Part,

disposition means an order made by a court or Review Board under section 672.54, an order made by a court under section 672.58 or a finding made by a court under subsection 672.64(1)[.]

672.54 When a court or Review Board makes a disposition . . . it shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

[31] Pursuant to the above definition of "disposition", the Criminal Code provides the court with one "disposition" that applies only in cases of unfitness and that is a treatment order pursuant to s. 672.58. The scope of judicial discretion allowed by this provision is central to the present application. It is framed in the following terms:

672.58 Where a verdict of unfit to stand trial is rendered and the court has not made a disposition under section 672.54 in respect of an accused, the court may, on application by the prosecutor, by order, direct that treatment of the accused be carried out for a specified period not exceeding sixty days, subject to such conditions as the court considers appropriate and, where the accused is not detained in custody, direct that the accused submit to that treatment by the person or at the hospital specified.

[32] Section 672.59 sets out a number of mandatory criteria that must be met, as they were in this case, before a s. 672.58 treatment order can be made. The criteria are as follows:

672.59(1) No disposition may be made under section 672.58 unless the court is satisfied, on the basis of the testimony of a medical practitioner, that a specific treatment should be administered to the accused for the purpose of making the accused fit to stand trial. [page283]

(2) The testimony required by the court for the purposes of subsection (1) shall include a statement that the medical practitioner has made an assessment of the accused and is of the opinion, based on the grounds specified, that

(a) the accused, at the time of the assessment, was unfit to stand trial;

(b) the psychiatric treatment and any other related medical treatment specified by the medical practitioner will likely make the accused fit to stand trial within a period not exceeding sixty days and that without that treatment the accused is likely to remain unfit to stand trial;

(c) the risk of harm to the accused from the psychiatric and other related medical treatment specified is not disproportionate to the benefit anticipated to be derived from it; and

(d) the psychiatric and other related medical treatment specified is the least restrictive and least intrusive treatment that could, in the circumstances, be specified for the purpose referred to in subsection (1), considering the opinions referred to in paragraphs (b) and (c).

[33] In addition to these mandatory s. 672.59 criteria, s. 672.62 adds further criteria for a s. 672.58 treatment order that relate to consent and lack of consent. They are as follows:

672.62(1) No court shall make a disposition under section 672.58 without the consent of

(a) the person in charge of the hospital where the accused is to be treated; or

(b) the person to whom responsibility for the treatment of the accused is assigned by the court.

(2) The court may direct that treatment of an accused be carried out pursuant to a disposition made under section 672.58 without the consent of the accused or a person who, according to the laws of the province where the disposition is made, is authorized to consent for the accused.

[34] If the court declines to make a "disposition" of any kind, the question of remedies defaults to the Ontario Review Board, as a result of s. 672.47(1), which is as follows:

672.47(1) Where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered and the court makes no disposition in respect of an accused, the Review Board shall, as soon as is practicable but not later than forty-five days after the verdict was rendered, hold a hearing and make a disposition.

It is noteworthy that the Review Board has no jurisdiction to make a treatment order. That power rests exclusively with the court.

[35] The only other relevant Criminal Code provisions relate to bail issues. Where an accused is found to be fit, after a fitness [page284] hearing, Part XX.1 grants the court special bail powers beyond those found in s. 515. In particular, the court can order hospitalization of a fit accused pursuant to s. 672.29, where release on bail would cause the accused to "become unfit". Similarly, s. 672.46(1) and (2) grant additional bail powers to the court where the accused has been found unfit. This provision, which was utilized by Hogan J. in the present case, is as follows:

672.46(1) Where the court does not make a disposition in respect of the accused at a disposition hearing, any order for the interim release or detention of the accused or any appearance notice, promise to appear, summons, undertaking or recognizance in respect of the accused that is in force at the time the verdict of not criminally responsible on account of mental disorder or unfit to stand trial is rendered continues in force, subject to its terms, until the Review Board makes a disposition.

(2) Notwithstanding subsection (1), a court may, on cause being shown, vacate any order, appearance notice, promise to appear, summons, undertaking or recognizance referred to in that subsection and make any other order for the interim release or detention of the accused that the court considers to be appropriate in the circumstances, including an order directing that the accused be detained in custody in a hospital pending a disposition by the Review Board in respect of the accused.

Hogan J. utilized s. 672.46(2), even though there was no existing bail order to be varied. The parties agree that the term "any order" in s. 672.46(2) is sufficiently broad to include a warrant of remand to the jail, which is what Ms. Walker would have been subject to, given that no bail hearing had been held. In effect, what Hogan J. did in the present case was "vacate" an imminent warrant of remand and then commit Ms. Walker to "custody in a hospital pending a disposition by the Review Board".

[36] The relevant civil regime relating to the treatment of mentally ill persons is found in a number of provincial statutes. In particular, the Health Care Consent Act, S.O. 1996, c. 2, Sch. A sets out comprehensive provisions concerning consent to treatment. In brief summary, s. 10 provides that a health practitioner "shall not administer" any treatment to a person who is "capable with respect to the treatment" unless that person "has given consent". In the event that a person is not "mentally capable" of giving consent, s. 20 provides for various substitute decision makers who may "give or refuse consent" to the proposed course of treatment. However, as Dr. M. Patel had testified, s. 18 provides that "the health practitioner shall not begin the treatment" if "informed that the person intends to apply, or has applied" to the Consent and Capacity Board "for a review of the finding" of incapacity. In other words, an appeal to the board has the effect of automatically staying any treatment. Section 32 sets out a broad right of appeal to the Consent and Capacity [page285] Board. It provides that the board "may confirm the health practitioner's finding or may determine that the person is capable with respect to the treatment, and in doing so may substitute its opinion for that of the health practitioner". In addition, ss. 36 and 37 allow the health practitioner to apply to the board to review a substitute decision maker's refusal of consent to treatment. Finally, s. 80 provides for a further appeal to the Superior Court of Justice from "the Board's decision . . . on a question of law or fact or both", and it provides that "the court may . . . exercise all the powers of the Board" and may "substitute its opinion for that of a health practitioner . . . or the Board". Further avenues of appeal, to the Ontario Court of Appeal and to the Supreme Court of Canada, are found in the ordinary statutory jurisdictions of those courts.

D. Analysis

(i) The positions of the parties

[37] The parties to the present application agree that s. 672.58 provides for some degree of discretion when deciding whether to make a treatment order, given Parliament's use of the term "may". The dispute between the parties concerns the scope of that discretion, whether Hogan J. exceeded the permissible scope of discretion, and whether any such error is jurisdictional and capable of review by way of certiorari.

[38] On behalf of the Crown, Mr. Feindel submitted that the statutory criteria for a treatment order, set out in s. 672.59, are reasonably exhaustive in identifying the relevant and essential considerations. He submitted that any residual discretion simply allows for exceptional or unforeseen circumstances that may arise in a particular case. In addition, he submitted that the residual discretion must be interpreted and applied in a manner that is consistent with the statutory objects of the Part XX.1 Criminal Code fitness regime, namely, expeditious restoration of the accused's fitness to stand trial so that the criminal process can resume and the accused's status of being in a kind of legal limbo can end.

[39] Mr. DiCecca's submission, on behalf of Ms. Walker, was carefully framed in narrow terms applicable to the particular facts of this case. He did not advance the broad and sweeping public policy argument made by trial counsel, which could arguably apply to almost any case. Mr. DiCecca submitted that there were a number of circumstances specific to this case and that they were relevant to the exercise of s. 672.58 discretion. In particular, he stressed the following: Ms. Walker was 41 years old; [page286] she had no prior criminal record; the assault charge she was facing was minor; she had already spent ten days in custody when the Crown applied for a treatment order on December 18, 2015; and finally, the assault charge was eligible under the Attorney General's mental health diversion policy and it was unlikely to ever proceed to trial in all of the above circumstances. As I understand Mr. DiCecca's submission, the elaborate processes involved in assessment orders, fitness hearings, treatment orders and further fitness hearings may simply be unnecessary when a minor case like this one can and should be expeditiously placed in a diversion stream. Indeed, it could be argued that Crown and defence counsel might have engaged early diversion processes at the stage of the bail hearing, before Bigelow J., and tried to restore Ms. Walker's mental health through that diversion process. I doubt that fitness hearings are necessary, prior to diverting minor charges in circumstances like those in the case at bar.

[40] I should state at the outset that there is merit to both Ms. Feindel's and Mr. DiCecca's arguments. Indeed, neither counsel devoted much time or effort to disagreeing with their opponent's argument because both arguments can subsist together. However, the simple answer to Mr. DiCecca's narrow fact-specific submission is that it is not the argument that was made at first instance and it is not the argument that Hogan J. accepted. Rather, the submission at first instance that was adopted by Hogan J. was that Ms. Walker "has certain rights" that accrue to her under the civil provincial treatment regime and that "this is what she, as an individual with certain rights, is saying she wants". The particular rights under the civil system that counsel had stressed were the right to a capacity hearing, to interlocutory appeals and to a substitute decision maker. The argument was that a Criminal Code treatment order "takes away her rights", as counsel put it, assuming these provincial civil rights actually do accrue to an accused who is subject to the criminal process. In my view, this argument could be made in any case where treatment is opposed by an unfit accused and where the more generous rights available under the civil system are preferred by the accused. If successful, the argument would eviscerate s. 672.58 treatment orders in any such case.

[41] I am satisfied that Hogan J. erred in adopting the above argument. The only live issue on this application, in my view, is whether the error is jurisdictional and capable of review by way of certiorari. [page287]

(ii) Ms. Walker's refusal to consent to treatment

[42] Before turning to the applicable legal principles, there are three preliminary points relating to Ms. Walker's lack of consent that should be mentioned. First, as Mr. DiCecca submitted without objection from Mr. Feindel, it is an accepted fact that the proposed treatment of Ms. Walker with anti-psychotic drugs can be unpleasant. Indeed, the record indicates that further drugs were required to treat the "side effects of Paliperidone". Accordingly, a patient's opposition to treatment with anti-psychotic drugs may well be understandable.

[43] Second, Hogan J. stated or inferred on a number of occasions that Ms. Walker wanted or preferred treatment under the civil system. The kind of treatment that she would receive under the civil system would be exactly the same as under the criminal system, namely, with potentially unpleasant anti-psychotic drugs. Ms. Walker was opposed to this treatment. Nevertheless, Hogan J. stated in her reasons that "the other [civil] route . . . is what she [Ms. Walker] . . . is saying she wants".

[44] I can understand why Hogan J. drew this inference from counsel's submissions. What counsel actually said was that "she [Ms. Walker] would like to have her full rights with respect to her treatment decisions". In my view, the record below is clear that Ms. Walker was opposed to any kind of involuntary treatment regime, whether civil or criminal, because she was opposed to treatment. Indeed, at one point during oral argument defence counsel had to intervene when Hogan J. repeatedly challenged Crown counsel with the following proposition concerning Ms. Walker's "wishes":

. . . why does the Crown submit that it should be a Treatment Order pursuant to this section of the Code when she is saying, and Mr. Hynes [defence counsel] is telling me, that these are her instructions, her wishes, that she goes to the ORB, and that is what she wants to do, and have the decisions around treatment made there, and the possibility of a substitute decision maker found for her, and some of these other protections . . . So why shouldn't I listen to her wishes and say, you know, at the end of the day she, in fact, may end up being more compliant because this is something that she wants, as opposed to it being, you know, forced on her . . . she should have the full spectrum of rights and right now she is saying, "I want to go to the ORB. That is where I want to access my treatment and have them deal with me"[.] Why can't we listen to her.

(Emphasis added)

[45] At this point, defence counsel interjected and expressed concern that Hogan J. was "mis-characterizing my client's instructions". He stated that Ms. Walker clearly "does not want this Treatment Order" under the Criminal Code but that he and his client had not had "a big discussion about the civil system". [page288] It was simply counsel himself, as he explained, who was "making the inference" that the civil system was preferable. In my view, it was a factual error to suggest that Ms. Walker "wants" or "would like" the civil treatment system, as Hogan J. and counsel put it in the end. The record was clear that Ms. Walker was opposed to any form of involuntary treatment regime and counsel had no "instructions" that she favoured the civil regime.

[46] This leads to the third preliminary point about lack of consent and that is whether counsel should have been taking "instructions" from a client who had been found unfit, especially "instructions" relating to treatment which would likely restore her fitness. Counsel had not opposed the finding of unfitness and s. 3.2-9 of the Law Society of Upper Canada, Rules of Professional Conduct, states:

When a client's ability to make decisions is impaired because of . . . mental disability . . . the lawyer shall, as far as reasonably possible, maintain a normal lawyer and client relationship.

Commentary . . .

When a client is or comes to be under a disability that impairs their ability to make decisions, the impairment may be minor or it might prevent the client from having the legal capacity to give instructions[.]

(Emphasis added)

[47] In this regard, one of the leading experts in this area of practice, Richard Schneider (now Schneider J., chair of the ORB) stated the following in "Mental Disorder in the Courts" (1996), 17 C.L.A. Newsletter, No. 4, at p.45:

Some accused in respect of whom fitness is in question are, although clearly "unwell", nevertheless able to communicate with counsel and provide rudimentary instructions sufficient to carry counsel through the fitness hearing. The more problematic cases are those where the accused is floridly psychotic and unable to carry on any sort of conversation with anyone and who also may be verbally hostile and/or physically aggressive toward the helpful overtures of counsel in this role. From where does counsel obtain his instructions to act?

See, also, R. v. Szostak (2012), 2012 ONCA 503, 111 O.R. (3d) 241, [2012] O.J. No. 3330, 289 C.C.C. (3d) 249 (C.A.), at paras. 76-86.

[48] It is doubtful that Ms. Walker had the requisite "legal capacity to give instructions" on December 18, 2015, after an uncontested finding that she was unfit pursuant to the principles set out in R. v. Taylor, supra, where the applicable standard and finding was that she lacked "limited cognitive capacity". In any event, there are only a few fundamental decisions in the course of criminal proceedings where counsel must take "instructions" from the client. Counsel should always discuss the issues and communicate effectively with clients but most [page289] decisions in a criminal case are made by counsel and not by the client. See R. v. Faulkner, [2013] O.J. No. 2315, 2013 ONSC 2373 (S.C.J.), at paras. 35-48, where the leading authorities on this point are discussed.

[49] Furthermore, the Criminal Code explicitly states in s. 672.62(2) that a treatment order can be made pursuant to s. 642.58 "without the consent of the accused or a person who, according to the laws of the province . . . is authorized to consent for the accused". In all these circumstances, defence counsel and Hogan J. placed far too much weight on Ms. Walker's "instructions" to oppose the treatment order and on the suggestion that "she wants" or "she would like" to be subject to the civil provincial regime for involuntary treatment. These propositions were both legally and factually doubtful and they were certainly not determinative.

(iii) Statutory interpretation where the term "may" is used

[50] The central issue on this application is whether Parliament has conferred a discretion in s. 672.58 and, if so, the scope of that discretion. Use of the term "may" in a statutory provision ordinarily denotes a permissive discretion as opposed to a mandatory obligation. See R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, [2003] S.C.J. No. 45, 177 C.C.C. (3d) 97, at para. 16. However, there is a line of authority holding that the term "may" can impose a duty when Parliament has gone on to specify all of the conditions precedent for the exercise of a power. Section 672.59 undoubtedly sets out essential conditions precedent for the exercise of the s. 672.58 power. The Supreme Court acknowledged this line of authority in R. v. Johnson, supra, at para. 17, stating:

. . . cases do exist in which courts have found that the power conferred by "may" is coupled with a duty once all the conditions for the exercise of the power have been met.

The court went on to cite, with both emphasis and approval, the discussion of this topic in the fourth edition of Sullivan and Driedger on the Construction of Statutes, where the authors conclude that "the duty, if it arises, is inferred from the purpose and scheme of the Act or from other contextual factors".

[51] The current edition of the above text, now Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis, 2014), at pp. 81-91, has incorporated the most recent authorities on this topic, including Johnson. It states the following in relation to the circumstances where an apparent discretion can become a duty: [page290]

The legal effect of a provision that uses "may" varies, depending on the purpose of the provision and its context. Such a provision may:

Confer a power, subject to a condition precedent: "an official may do something if . . ." The power may be exercised only if the conditions precedent are met. To that extent the discretion is limited. The issue that arises is whether, once the condition is met, the official may decline to exercise the power.

When a legal power is conferred by a provision using the word "may", the recipient has in the absence of evidence to the contrary a discretion to decide whether to exercise the power. Of course, this discretion is limited by the purposes for which it was conferred . . . When the exercise of a power is made subject to one or more conditions precedent, this discretion is further limited in that the power must not be exercised until the specified conditions are met. What is not so obvious, however, in some contexts at least, is whether the power must be exercised once all conditions are met . . . In other words, the use of "may" implies discretion, but it does not preclude obligation. The interpreter must determine whether there is anything in the statute or in the circumstances that expressly or impliedly obliges the exercise of the power . . . The word "may" alone cannot determine the outcome; it must be considered in context, having regard to the usual things -- the Act as a whole, the purpose and scheme, the entire context.

In short, focusing on the word "may" is not enough. In every case, it is essential to consider the meaning of the provision in which "may" is used, the purpose of the provision, its role in the legislative scheme and other relevant contextual features.

(Italics of R. Sullivan in original; underlining added)

[52] Applying the above approach to the statutory power in s. 672.58, the purpose of this provision and the surrounding Part XX.1 Criminal Code fitness regime has been described in a number of authoritative decisions. In R. v. Conception, 2014 SCC 60, [2014] 3 S.C.R. 82, [2014] S.C.J. No. 60, at paras. 15 and 31-34, the majority of the court described "the twin purposes" of Part XX.1 as "protection of the public and fair treatment, in the sense of procedural fairness, of the accused". In this context, the majority went on to describe the s. 642.58 treatment power as follows:

An order under s. 672.58 is extraordinary in at least two respects. First, it directs that treatment of an accused be carried out without the accused's consent. The exceptional nature of this power was noted by the then Justice Minister Kim Campbell when she introduced the legislation in 1991:

At present, there is no power to order a person detained pursuant to a Lieutenant-Governor's warrant to submit to treatment involuntarily. Apart from emergency, there is no power to treat an accused without obtaining consent. We have concluded that the general rule preventing the involuntary treatment of mentally disordered accused ought to be [page291] preserved. However, subject to stringent safeguards, the bill permits a court to order involuntary treatment to make the accused fit to stand trial, thereby avoiding a potentially lengthy period of detention. (Emphasis added by the Supreme Court)

(House of Commons Debates, vol. 3, 3rd Sess., 34th Parl., October 4, 1991, at pp. 3297-98)

The Code establishes a number of special protections that highlight the unusual nature of this power. As provided for in s. 672.59, the order may only be made if the court is satisfied on the basis of testimony from a medical practitioner that a specific treatment should be administered for the purpose of making the accused fit to stand trial. That testimony must fulfill the detailed criteria set out in s.672.59(2), including that the treatment is the least restrictive and least intrusive that could be specified for the purpose and that the risk of harm to the accused is not disproportionate to its anticipated benefit. The accused has important procedural rights including notice, and the right to challenge the application and certain treatments including the performance of psychosurgery or electro-convulsive therapy are not permitted: ss. 672.6 and 672.61.

Second, by necessary implication, it authorizes medical personnel to carry out that treatment against the accused's wishes. This is a remarkable provision, given that informed consent of the patient is generally the sine qua non of medical treatment. However, s. 672.62, by requiring consent of the hospital or the person responsible for the accused's treatment, makes it clear that this provision does not oblige them to carry out the court's disposition order without their consent. As the Court noted in Mazzei, doing so "would constitute interference with the authority and responsibility of hospital authorities to provide medical services to persons in their custody according to their view of what is appropriate and effective": para. 34 (emphasis in original).

That understanding serves the purpose of safeguarding the accused; hospital consent is one of the "stringent safeguards" referred to by Minister Campbell and is designed to ensure that the order can be carried out safely, both with regard to the accused, other patients and medical personnel. Parliament also intended to respect the important role of the treatment provider and to acknowledge how intrusive these provisions are, not only in relation to the accused but in relation to the institutions and personnel who are called on to administer treatment against the patient's will. The provisions recognize the importance of the treatment provider's clinical judgment, not only as to the particular treatment but as to the location, among those designated by the Minister of Health, at which it is to be carried out.

[53] The majority of the Supreme Court in Conception upheld the Ontario Court of Appeal's decision in that case where the court described the legislative purpose of s. 672.58 in the following terms (CAMH v. Ontario, supra, at para. 39):

The purpose of the treatment order regime in the Criminal Code is to restore an unfit accused's fitness to stand trial as expeditiously as possible, thus enabling the trial process to proceed in a timely fashion and, in turn, enhancing both the accused's fair trial and other Charter rights and society's interest is seeing that criminal matters are disposed of on their merits. Experience shows that the majority of accused who are the subject of [page292] treatment orders suffer from a serious psychotic illness, such as schizophrenia, schizo-affective disorder, or bipolar disorder. Experience also shows they can often achieve a return to fitness for trial through the administration of anti-psychotic drug treatment for a period of 30-60 days: hence, the 60-day limit on a s. 672.58 order.

(Emphasis added)

[54] The broader legislative context of the fitness provisions in Part XX.1, and their constitutional legitimacy, was addressed by the Supreme Court in R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, [2004] S.C.J. No. 43, 185 C.C.C. (3d) 257, at paras. 25, 41 and 88-89. The majority stated:

As mentioned above, Part XX.1 Cr. C. was enacted as a balanced response to this Court's decision in Swain. This new scheme reflects both the public's needs (protection from dangerous individuals and bringing to trial an individual accused of a serious crime) and the needs of the accused (right to a fair trial, assessment and treatment of persons with mental disorders). The pith and substance of the impugned provisions falls within both the preventive and criminal procedure branches of the criminal law, all within well-accepted criminal law purposes (Margarine Reference, supra).

The purpose of Part XX.1, as a unique scheme that exists within the criminal process, is to allow for the ongoing treatment or assessment of the accused in order for him or her to become fit for an eventual trial while preserving his or her maximum liberty and dignity. Part XX.1 is not overbroad in the case of temporarily unfit accused, because the means chosen by Parliament significantly advance the goals of assessment and treatment, which can result in rendering the accused fit for trial and the goal of protecting the public.

(Emphasis added)

[55] In light of the above authorities, I am satisfied that s. 672.59 is not exhaustive of the considerations that may apply when deciding to make a s. 672.58 treatment order. Parliament specifically enumerated the most important considerations in s. 672.59 but it used the term "include", signifying that the list of s. 672.59 factors is not exclusive or exhaustive. Furthermore, s. 672.58 is an extraordinary power and Parliament could not predict every possible relevant consideration that might arise in a given case. It was important to maintain some residual discretion, given the coercive nature of this particular power and the real possibility of unforeseen circumstances. By way of analogy, see Baron v. Canada, 1993 154 (SCC), [1993] 1 S.C.R. 416, [1993] S.C.J. No. 6, 78 C.C.C. (3d) 510, at pp. 523-31 C.C.C., where Sopinka J. discussed a number of leading authorities concerning the importance of judicial discretion and explained why "a residual discretion is a constitutional requirement" in the law of search and seizure. [page293] In my view, similar considerations apply in the context of treatment orders.

[56] Although some residual discretion exists under s. 672.58, it is not broad and unlimited. It is constrained by at least the following considerations:

first, the preconditions listed in s. 672.59 are the most important considerations and they make out a strong prima facie justification for a s. 672.58 treatment order. Where s. 672.59 has been satisfied, as in the present case, it means that the accused has been found unfit, the criminal process has been suspended, and the accused is treatable within 60 days by a method that is both proportionate and least restrictive. In these circumstances, it will be difficult to resist a treatment order;

second, any additional discretionary considerations must be consistent with the legislative context, that is, with the criminal law purpose of the surrounding Part XX.1 fitness provisions, as explained by the majority in Demers, supra at para. [41], namely, to attain "the ongoing treatment or assessment of the accused in order for him or her to become fit for an eventual trial while preserving his or her maximum liberty and dignity". Accordingly, if a treatment bed at a hospital is not available in a reasonable period of time, thus prolonging the detention of an unfit accused and unduly delaying resumption of the criminal trial process, this may be an unforeseen or unusual circumstance justifying a discretionary refusal to make a s. 672.58 order and making it preferable to exercise warrant of committal powers to a hospital, pursuant to s. 672.46(2);

third, any additional discretionary considerations must be consistent with the legislative purpose of s. 672.58 itself, as explained in Conception, supra, namely, involuntary treatment of an unfit accused without the accused's consent but with the hospital's consent, [at para. 33] "according to their [the treatment provider's] view of what is appropriate and effective", in order to avoid [at para. 126] "a potentially lengthy period of detention" for the unfit accused. In this regard, it must be remembered that the Taylor criteria only capture the most severely mentally ill accused and s. 672.58 only applies to an even narrower sub-set of mentally ill accused, namely, those who are treatable within 60 days. As Karakatsanis J. put it in Conception, supra, at para. 61 (in dissent but not on this point): [page294]

The cognitive threshold for fitness to stand trial is very low. A person could be ill enough to require civil commitment, but still be considered fit. The treatment order regime in Part XX.1 is intended only to bring mentally ill accused persons to the cognitive threshold required to proceed to trial.

[57] In my view, and with great respect, the reasons of Hogan J. in this case do not accord with the above analysis of the court's discretion under s. 672.58. Instead, the accused's lack of consent became a predominant consideration, the criminal law context and criminal law purpose of the provisions was overlooked or was given little weight, and a system of civil rights under provincial legislation was given primacy even though it risked causing treatment delays and prolonged custody for the accused. In every case where a s. 672.58 treatment order is made, there will be none of the civil rights that are provided under the provincial regime, that is, no capacity hearing, no interlocutory appeals to the Consent and Capacity Board and to the courts, and no substitute decision maker. None of these "rights" are ever provided for under Part XX.1 of the Criminal Code. If the existence of additional civil rights under provincial legislation is a proper basis for declining to exercise discretion under s. 672.58, then there could never be any s. 672.58 orders. Needless to say, the civil treatment regime under provincial law applies to mentally ill persons who are not subject to any criminal proceedings. Accordingly, the criminal law legislative purpose and context is entirely lacking from the civil treatment regime. See CAMH v. Al-Sherewadi, [2011] O.J. No. 1755, 2011 ONSC 2272 (S.C.J.), at para. 11.

[58] Ms. Walker did eventually receive the same involuntary treatment under the civil regime, that she would have received under the criminal regime, and without any significant delays. However, it appears that this result came about by happenstance. Nowhere in the record is there evidence that she was informed of the generous system of interlocutory appeals available to her under the civil provincial regime and there is no evidence that she ever waived these rights of appeal. It is that system of interlocutory appeals from a finding of incapacity, under the Health Care Consent Act, that gives rise to the potential for significant delays and that is arguably inconsistent with the legislative purpose of Part XX.1 of the Criminal Code.

[59] For all these reasons, I am satisfied that Hogan J. erred in the exercise of her discretion under s. 672.58. The only remaining issue is whether that error is reviewable on certiorari as an error going to jurisdiction. [page295]

(iv) The scope of review on certiorari

[60] Given that the present application is now moot, and the guidance sought by the parties concerning the scope of discretion under s. 672.58 has been provided above, it is not strictly necessary to address the final issue which concerns the scope of review on certiorari. As a result, I will only address it briefly.

[61] Both parties rely on leading Canadian texts on administrative law describing the scope of judicial review where a discretionary power is involved. These texts set out the scope of review in the following terms:

Discretion is not absolute or unfettered. Decision makers cannot simply do as they please. All-discretionary powers must be exercised within certain basic parameters. The primary rule is that discretion should be used to promote the policies and objects of the governing Act. These are gleaned from a reading of the statute as a whole using ordinary methods of interpretation. Conversely, discretion may not be used to frustrate or thwart the intent of the statute. A discretionary power should not be used to achieve a purpose not contemplated by the Act. This use is labelled as an "improper purpose".

Discretionary decisions should be based primarily upon consideration of factors pertinent to the policy and objects of the statute. "A public authority in the exercise of its statutory powers may not act on extraneous, irrelevant and collateral considerations." Nor may the public authority ignore relevant considerations. It should consider all factors relevant to the proper fulfilment of its statutory decision-making duties.

(Sara Blake, Administrative Law in Canada, 5th ed. (Markham, Ont.: LexisNexis, 2011), at pp. 99-100)

A discretionary decision may also be quashed if the decision maker has considered irrelevant grounds in the decision making process, or made the decision for a purpose other than that delegated by the enabling statute. An irrelevant ground is one that is wholly outside the policy or intention of the enabling statute. As held by the SCC in Prince George (City) v. Payne: "[b]asing a decision on irrelevant considerations, this is not the judicial exercise of a discretionary power".

Discretion should be used to promote the policies and object of the constituting statute. Conversely, discretion may not be used to frustrate or thwart the intent of the Act, or to achieve a purpose not contemplated by the Act. A decision maker may not act on extraneous, irrelevant and collateral considerations; it must consider all relevant factors as mandated by the enabling statute to fulfil its statutory duties.

(Guy Régimbald, Canadian Administrative Law, 2nd ed. (Markham, Ont.: LexisNexis, 2015), at p. 229)

[62] I have considerable doubt as to whether the broad principles of administrative law set out in the above texts are helpful in relation to the final issue in this case, namely, the scope of certiorari in criminal proceedings. In CAMH v. Al-Sherewadi, supra, [page296] at para. 18, Nordheimer J. granted certiorari, quashed a warrant of committal, and issued a treatment order on the basis that the judge at first instance "failed to exercise her discretion reasonably" and thereby committed "an error of law". The applicant seeks a similar exercise of judicial review in the present case in relation to the same Criminal Code powers.

[63] In criminal proceedings, certiorari is no longer available on the basis of "error of law on the face of the record". It is limited to jurisdictional error. In R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, [2001] S.C.J. No. 53, 157 C.C.C. (3d) 1, at para. 19, McLachlin C.J.C. gave the unanimous judgment of the full court and stated:

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari "runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term aejurisdiction' being given its narrow or technical sense": R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction": Skogman, supra, at p. 100 (citing Forsythe v. The Queen 1980 15 (SCC), [1980] 2 S.C.R. 268).

(Emphasis added)

[64] In R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93, [1984] S.C.J. No. 32, 13 C.C.C. (3d) 161, at p. 167 C.C.C., Estey J. gave the majority judgment and stated:

It need only be added by way of emphasis that such certiorari review does not authorize a superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging a decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached a conclusion different from that which the reviewing tribunal might have reached.

(Emphasis added)

See, also, R. v. Dubois, 1986 60 (SCC), [1986] 1 S.C.R. 366, [1986] S.C.J. No. 21, 25 C.C.C. (3d) 221, at p. 224 C.C.C.; R. v. Forsythe, 1980 15 (SCC), [1980] 2 S.C.R. 268, [1980] S.C.J. No. 66, 53 C.C.C. (2d) 225, at pp. 228-29 C.C.C.

[65] I am satisfied that Hogan J. exercised the statutory discretion in s. 672.58 unreasonably, and committed an error of law by failing to consider the statutory purpose of the provision and by considering matters that were inconsistent with or extraneous to that statutory purpose, as explained above. However, these were errors in the application of, or exercise of, a statutory power that was within Hogan J.'s jurisdiction. [page297] As Major J. explained in R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, [2004] S.C.J. No. 73, 196 C.C.C. (3d) 1, at para. 17, speaking for the majority in an analogous context:

The preliminary inquiry judge has jurisdiction to conduct the inquiry according to the rules of evidence. Any error with respect to the application of those rules that does not rise to the level of a denial of natural justice (which also goes to jurisdiction: see Dubois, supra, at p. 377; Forsythe, supra, at p. 272) constitutes an error of law, not a jurisdictional error. Errors of law are not reviewable by way of certiorari.

(Emphasis added)

[66] In CAMH v. Al-Sherewadi, supra, Nordheimer J. was able to conduct a review of the same statutory power that is at issue in the present case on the basis of "error of law", apparently because certiorari was brought in that case by a third party, namely, the hospital CAMH. The Supreme Court may well have expanded the remedial scope of certiorari in such a case. In Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 94 C.C.C. (3d) 289, at pp. 302-309 C.C.C., Lamer C.J.C. gave the majority judgment. He acknowledged [at para. 16] "the common law principle against interlocutory appeals in criminal matters", which is the policy reason that explains the narrow scope of certiorari in criminal proceedings. However, in the case of "third-party challenges to publication ban orders", which engage s. 2 Charter rights and s. 24(1) Charter remedies, he stated the following:

Another problem with this avenue comes from the apparently limited remedial powers of certiorari. Traditionally, certiorari has been limited remedially. That is, it could only be used to quash an order. Thus, if the media were seeking an additional or alternative remedy, the desired remedy would appear to be unavailable through certiorari.

However, it is open to this court, to enlarge the remedial powers of certiorari and I do so now for limited circumstances. Given that the common-law rule authorizing publication bans must be consistent with Charter principles, I am of the view that the remedies available where a judge errs in applying this rule should be consistent with the remedial powers under the Charter. Therefore, the remedial powers of certiorari should be expanded to include the remedies that are available through s. 24(1) of the Charter.

(Italics of Lamer C.J.C. in original; underlining added)

[67] In Toronto Star Newspapers Ltd. v. Ontario (2003), 2003 13331 (ON CA), 67 O.R. (3d) 577, [2003] O.J. No. 4006, 178 C.C.C. (3d) 349 (C.A.), at para. 17, Doherty J.A. gave the judgment of the court and stated that the Dagenais approach to certiorari means that "the remedial powers of the Superior Court on a certiorari application involving challenges to non-publication orders and similar orders where Charter rights are engaged should be expanded to coincide with the remedial power under s. 24(1) of [page298] the Charter. Section 24(1) certainly allows the Superior Court judge to decide the merits of the sealing order application and make the order which the court concludes should have been made on the initial hearing" (emphasis added). Taking this approach, Doherty J.A. proceeded to make various revisions and amendments to the order below. On further appeal, the Supreme Court unanimously affirmed the Court of Appeal's decision. See Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, 197 C.C.C. (3d) 1.

[68] I assume that Nordheimer J. was applying the expanded Dagenais/Toronto Star approach to certiorari, when deciding CAMH v. Al-Sherewadi, supra, because the application was brought by a third party hospital. In the present case, this approach is not available because certiorari is brought by the Crown. The Crown is one of the two parties to the underlying criminal proceedings and these parties have certain statutory rights of appeal. As a result, the Crown is constrained by the traditional limitations on certiorari which exclude "error of law" as a basis for interlocutory review in criminal proceedings.

[69] For all the reasons set out above, I do not accept that Hogan J.'s error was jurisdictional in nature. Accordingly, certiorari is denied and the application is dismissed. I would like to thank both counsel for their thorough and helpful submissions.

Application dismissed.

End of Document