Court File and Parties

BARRIE COURT FILE NO.: 14-244 DATE: 20160425

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent WAYPOINT CENTRE FOR MENTAL HEALTH CARE Respondent – and – JAMES DOUGLAS ROBERTSON Applicant

COUNSEL: K. Hull, for the Crown J. Blackburn, for the Respondent, Waypoint Centre for Mental Health Care James Douglas Robertson, Self-Represented

HEARD: April 11, 2016

Ruling on Jurisdiction

QUINLAN J.:

[1] Mr. Robertson applies for a writ of habeas corpus with certiorari in aid. He described the “catalyst” for his application as the use by staff at the Waypoint Centre for Mental Health Care (Waypoint) of the Acute Risk of Violence Scale (ARVS) in their dealings with him.

[2] Mr. Robertson’s status is that of an “accused” under the jurisdiction of the Ontario Review Board (Board), pursuant to findings by a court of Not Criminally Responsible By Reason of Mental Disorder, upheld on appeal, and by operation of Part XX.I (section 672) of the Criminal Code of Canada. He is detained at the Waypoint pursuant to a disposition order of the Board.

[3] Over the course of several months, the remedies sought by Mr. Robertson expanded and significantly changed. After filing his habeas corpus application, Mr. Robertson filed a Notice of Constitutional Question and later an amendment to that notice. By the time the matter was before me, Mr. Robertson sought:

“Initial Application

1. A judicial order that the Acute Risk of Violence Scale violates the Canadian Charter of Rights and Freedoms and is illegal and Waypoint Centre for Mental Health Care cease and desist using it; and or

2. Temporary injunction ordering Waypoint Centre for Mental Health Care cease and desist from using Acute Risk of Violence Scale; and

3. A court order that the Acute Risk of Violence Scale is illegal and any and all documentation originated into this applicants and other citizens medical histories be removed; and

4. A Court Order that the Acute Risk of Violence Scale is method of behavioural modification and psychological therapy and therefore requires citizens to consent to participate in such therapies.

Notice of Constitutional Question

1. A judicial order that the Acute Risk of Violence Scale violates the Canadian Charter of Right and Freedoms and is illegal and Waypoint Centre for Mental Health Care cease and desist using it; and or

2. Seven thousand eight hundred ninety three dollars for pain and suffering; and

3. Interim injunction ordering Waypoint Centre for Mental Health Care cease and desist from using Acute Risk of Violence Scale; and

4. A court order that the Acute Risk of Violence Scale is illegal and any and all documentation originated in this applicants and other citizens medical histories be removed; and

5. A Court Order that the Acute Risk of Violence Scale is method of behaviour modification and psychological therapy and therefore requires citizens to consent to participate in such therapies; and

6. Costs; and

7. Any other judicial order this court deems just and constitutional.

Amended Notice of Constitutional Question

1. A judicial order that the Acute Risk of Violence Scale violates the Canadian Charter of Rights and Freedoms and is illegal and Waypoint Centre for Mental Health Care cease and desist using it; and

2. Should this court find that Waypoint Centre for Mental Health Care use of the ARVS violates the Canadian Charter of Rights and Freedoms an court order that Waypoint Centre for Mental Health Care pay this applicant seven thousand eight hundred ninety three dollars for pain and suffering; and

3. Should this court find that Waypoint Centre for Mental Health Care use of the ARVS violates the Canadian Charter of Rights and Freedoms, an order that Waypoint Centre for Mental Health Care pay this applicant sixteen thousand eight hundred twenty nine dollars and fifty cents punitive damages; and

4. Should the court determine that Waypoint Centre for Mental Health Care employee J. Dunn RPN, did violate this applicants civil rights issue a court order that J. Dunn’s employment by the Catholic Health Association be terminated; and

5. Should this court determine that section 345 of the code was violated by Waypoint Centre for Mental Health Care staff order that the police with jurisdiction investigate and charge the perpetrators in accordance of the law; and

6. Should this court determine that section 345 “Public Servant Refusing to Deliver Property” of the code was violated by Waypoint Centre for Mental Health Care staff, an order that the police with the appropriate jurisdiction investigate and charge the perpetrators in accordance of the law; and

7. An court ordered Interim Injunction ordering Waypoint Centre for Mental Health Care cease and desist using Acute Risk of Violence Scale until a scientific study has been completed to determine if the ARVS is a psychological therapy; and

8. Should this court determine that the Acute Risk of Violence Scale violates the Canadian Charter of Rights and Freedoms is illegal. Any and all documentation that was originated by the ARVS into this applicants and other citizens medical histories be removed forthwith; and

9. A Court Order that the Acute Risk of Violence Scale is method of behaviour modification and psychological therapy and therefore requires citizens to consent to participate in such therapies; and

10. Costs; and

11. Any other judicial order this court deems just and constitutional.”

[4] Waypoint and the Crown responded to the Application. By endorsement dated February 29, 2016, Charney J. directed a hearing to decide the jurisdictional issues arising out of the remedies sought in Mr. Robertson’s application.

The Law

[5] The Superior Court, sitting as a criminal court on a habeas corpus application, does not have the power to order civil remedies such as damages or monetary compensation for breach of the Charter, although it can in exceptional cases order costs: See R. v. Reisher, [2002] O.J. No. 1973 at paras. 13, 14, 17, 19-21.

[6] In R. v. Conway, 2010 SCC 22, [2010] S.C.J. No. 22, the Supreme Court established a new test for ascertaining whether or not an administrative tribunal has s. 24(1) remedial Charter jurisdiction. That case dealt with the jurisdiction of the Ontario Review Board.

[7] When a Charter remedy is sought from an administrative tribunal, the initial inquiry is whether the tribunal can grant Charter remedies generally. The answer to this question flows from whether the administrative tribunal has the jurisdiction, explicit or implied, to decide questions of law. If it does, and unless the Legislature has demonstrated its intent to withdraw the Charter from the tribunal’s authority, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate. As such, the tribunal is a court of competent jurisdiction pursuant to s. 24(1) of the Charter: Conway, at paras. 21-22.

[8] In Conway, the Supreme Court decided that the Board is a court of competent jurisdiction. It is a quasi-judicial body with significant authority over a vulnerable population authorized to decide questions of law. The Court described the Board as a “specialized statutory tribunal”. The Supreme Court found that there was nothing in Part XX.I of the Criminal Code, the Board’s statutory scheme, that permitted the Court to conclude that Parliament had demonstrated its intent to withdraw the Charter from the Board’s authority: Conway, at para. 84. As such, the Board was a tribunal with jurisdiction to grant Charter remedies in relation to Charter issues in the course of carrying out its statutory mandate.

[9] The Court determined that after the general inquiries set out above are answered in the affirmative, “the tribunal …must then decide, given its jurisdiction, whether it can grant the particular remedy sought based on its statutory mandate. The answer to this question will depend on legislative intent, as discerned from the tribunal’s statutory mandate…”: Conway, at para. 22. The Court held that “Charter rights can be effectively vindicated through the exercise of statutory powers and processes”: Conway, at para. 103.

[10] The Court re-emphasized previously determined principles that the Board regime is intended to reconcile the twin goals of protecting the public from dangerous offenders and treating patients found not criminally responsible fairly and appropriately, within the paramount consideration of public safety: Conway, at paras. 85-95.

[11] The Board does not have the jurisdiction to grant costs, damages or declarations as a Charter remedy: Re Chaudry, 2015 ONCA 317; Re Starz, 2015 ONCA 318.

Analysis

[12] The Superior Court, sitting as a criminal court on a habeas corpus application, does not have the power to grant general damages, punitive damages, injunctive relief, declarations concerning the rights or breaches of rights of other persons, terminate an employee or order police to investigate and charge individuals. Some of the remedies sought may be granted in a civil application or civil action. Some of the remedies sought are not just and appropriate even if all of Mr. Robertson’s allegations were to be confirmed in some forum, such as orders that the court terminate the employment of a registered practical nurse or direct the police to investigate alleged interferences with the delivery of mail and lay criminal charges.

[13] Mr. Robertson relies on an interim decision of the Board dated January 14, 2012 to support his position that this court should assume jurisdiction because of what he says was the refusal of the Board to hear past Charter applications. In the interim decision, the Board ruled that the constitutional breaches alleged by Mr. Robertson either involved remedies beyond the jurisdiction of the Board or failed to reach the threshold required in law to proceed. A review of the Board’s final decision dated March 30, 2012 makes clear that the Board heard Mr. Robertson’s Charter application; the interim decision related to the Board’s finding that it was unable to provide the remedy sought by Mr. Robertson because the remedies sought were beyond the scope of the Board’s remedial jurisdiction. As such, the Board’s ruling, confirmed by the Court of Appeal in Re Robertson, 2012 ONCA 889 does not support a basis for this court to assume jurisdiction.

[14] This Court and the Board have concurrent jurisdiction to deal with a habeas corpus application, determine whether the Charter has been breached and provide a remedy. Mr. Robertson’s complaint, arising from the use by staff of the ARVS, relates to the conditions of his detention and is an issue that is appropriately dealt with by the expert tribunal. The Board must consider the conditions of Mr. Robertson’s detention, with or without a Charter application, at all reviews of his disposition order: see R. v. Robertson, 2011 ONSC 1945 at para. 58. The expert tribunal can deal with any infringement of Mr. Robertson’s liberty and address concerns that his disposition is not the least onerous or least restrictive. The Board can provide the hospital with guidance on its obligations under the Criminal Code and the Charter and make remedial orders directed at Mr. Robertson. Given the Board’s expertise it is the more appropriate and practical forum for such determinations: see Re Starz, at paras. 111-115; Robertson at paras. 58-65.

[15] The only remedy sought by Mr. Robertson that can be dealt with by the court as a court of criminal jurisdiction dealing with habeas corpus and not by the Board is the granting of costs. However, a criminal defendant is generally not entitled to costs. The Supreme Court has noted that costs are awarded only when there is something “remarkable” about the accused person’s case, or “oppressive or improper conduct” alleged against the Crown: R. v. C.A.M., 1996 SCC 230, [1996] S.C.J. No. 28 at para. 97. There is no such allegation made against the Crown. The Crown’s involvement has been limited to responding to the applications brought by Mr. Robertson. Nothing in the conduct of the Crown can be described as remarkable, oppressive or calling for sanction and as such, there would be no basis for the court to award costs.

Conclusion

[16] For the foregoing reasons, Mr. Robertson’s application is dismissed.

QUINLAN J. Released: April 25, 2016