Kaminski v. Her Majesty the Queen in Right of Ontario, 2016 ONSC 6651
CITATION: Kaminski v. Her Majesty the Queen in Right of Ontario, 2016 ONSC 6651 COURT FILE NO.: CR-16-10000315-00MO DATE: 20161026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL KAMINSKI Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondent
– and –
PERSON IN CHARGE FOR CENTRE FOR ADDICTION AND MENTAL HEALTH Respondent
– and –
PERSON IN CHARGE FOR WAYPOINT CENTRE FOR MENTAL HEALTH, PENETANGUISHENE Respondent
COUNSEL: Chris Hynes, for the Applicant Michael Feindel, for the Respondent, Ontario Crown Michele Warner, for the Respondent, Centre for Addiction and Mental Health James Thomson, for the Respondent, Waypoint Centre for Mental Care
HEARD at Toronto: October 20, 2016
REASONS FOR DECISION
(Application for a Writ of Habeas Corpus with Mandamus in Aid)
THE APPLICATION
1Michael Kaminski brought this application for a writ of habeas corpus with mandamus in aid asking the court to review his detention at Waypoint Centre for Mental Care (“Waypoint”), (formerly, Penetanguishene Mental Health Centre) and order his release and detention at the Centre for Addiction and Mental Health (“CAMH”).
2Mr. Kaminski also claims under s. 24(1) of the Charter of Rights that his s. 7 and s. 9 rights have been breached and seeks costs against the Ontario Crown. Crown counsel submitted that pursuant to s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27 a claimant shall serve notice of their claim on the Crown at least sixty days before the commencement of the action. Mr. Kaminski served his claim on the Crown ten days before the commencement of this application.
3Counsel for Mr. Kaminski conceded at the commencement of the proceeding that the Charter application and the related claim for costs against the Ontario Crown ought not to be brought at this time and withdrew the application and the costs claim.
FACTUAL BACKGROUND
4Michael Kaminski, age 28, was charged in September 2015 on two counts of criminal harassment and in October 2015 on two counts of failure to comply with bail conditions.
5Mr. Kaminski suffers from a mental disorder involving auditory hallucinations wherein he hears voices commanding him to do certain things. Before his arrest he had been a student at the Academy of Realistic Art in Toronto. He began to show obsessive behaviour towards one of his instructors, Gavin Ryan. His condition deteriorated to a point where he was required to receive treatment at CAMH for his mental condition. Mr. Kaminski was asked to leave the Academy. In 2013 he began hearing voices in his head directing him to contact Mr. Ryan. Mr. Kaminski continued to try to contact Mr. Ryan by email and by attending at the Academy.
6On September 2, 2015, Mr. Kaminski appeared at the Academy looking for Mr. Ryan. An owner of the Academy encountered Mr. Kaminski and called the police. Mr. Kaminski was arrested for criminal harassment. He was released on bail on conditions that restricted him from attending at the Academy and from contact with Mr. Ryan and two other persons at the Academy.
7On October 19, 2015, hearing voices directing him to contact the Academy, Mr. Kaminski went to the Academy where he was charged with breach of recognizance. On October 15, 2015, the day following his release, he again went to the Academy in response to direction from the voices. On that occasion, he saw Mr. Ryan on the street and attempted to communicate with him. The police were called and Mr. Kaminski was arrested once again and charged with breach of recognizance. He was placed in custody at Waypoint.
8Mr. Kaminski was assessed by a doctor who found he suffered from paranoia and on January 26, 2016, before the Ontario Court of Justice, Mr. Kaminski was found not criminally responsible (“NCR”) on the criminal harassment and failure to comply charges. He was re-admitted to Waypoint and treated for a paranoid condition that caused him to be preoccupied with contacting Mr. Ryan.
THE ONTARIO REVIEW BOARD DISPOSITION
9On March 8, 2016, at a disposition hearing the Ontario Review Board (“ORB”) ordered that Mr. Kaminski be moved from the maximum secure facility at Waypoint, Penetanguishene to a medium secure facility at CAMH in Toronto. On March 23, 2016, the ORB issued a disposition providing for his transfer from Waypoint to CAMH.
10In part, ORB’s March 23 order directed that Mr. Kaminski be detained at the Secure Forensic Unit of CAMH or in the discretion of the person in charge, be transferred to the General Forensic Unit of CAMH, should he be assessed to have improved, forthwith.
11The ORB provided direction in respect of the nature of Mr. Kaminski’s care at Waypoint before transfer to CAMH and at CAMH after he is transferred there:
IT IS ORDERED that the accused be detained at the Secure Forensic Unit of the Centre for Addiction and Mental Health, Toronto or in the discretion of the person in charge, transferred to the General Forensic Unit of the Centre for Addiction and Mental Health, Toronto, should the person in charge conclude that the accused’s condition has clinically improved to the extent of justifying such transfer, forthwith.
IT IS FURTHER ORDERED that until such time as he is detained at the Secure Forensic Unit of the Centre for Addiction and Mental Health, Toronto, the person in charge of the Waypoint Centre for Mental Health Care, Penetanguishene, create a program for the detention in custody and rehabilitation of the accused within the Waypoint Centre for Mental Health Care – Provincial Forensic Program Division, in which the person in charge, in his or her discretion, may permit the accused:
a. To attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes; and
b. Hospital grounds privileges beyond the secure perimeter, escorted by staff.
- [UPON THE ACCUSED being detained at the Forensic Unit of the Centre for Addiction and Mental Health, Toronto] IT IS FURTHER ORDERED that the person in charge of the Center for Addiction and Mental Health, Toronto, create a program for detention in custody and rehabilitation of the accused within the Secure Forensic Unit of the Centre for Addiction and Mental Health or within the General Forensic Unit of the Centre for Addiction and Mental Health, in which the person in charge, in his or her discretion, may permit the accused:
a. To attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes; and
b. Hospital grounds privileges accompanied by staff or a person approved by the person in charge.
c. Hospital and grounds privileges, indirectly supervised; and
d. To enter the community of Toronto, accompanied by staff or a person approved by the person in charge. [emphasis added]
THE CIRCUMSTANCES AT CAMH
12After the ORB’s disposition on March 23, Mr. Kaminski was placed on a waiting list for a bed on the Secure Forensic Unit at CAMH. There was one other person on the list ahead of him. Since this application was brought, that person was admitted on October 14, 2016. This puts Mr. Kaminski at the top of the list. CAMH has not admitted Mr. Kaminski as yet because there are no beds available on the male secure forensic unit. Counsel for Mr. Kaminski does not dispute this.
13Mr. Kaminski spent only a month in the secure forensic unit at Waypoint where he was originally admitted. On April 26, 2016, Mr. Kaminski was transferred to a program at Waypoint that is “the highest functioning unit within the provincial forensic program at Waypoint”. That program is directed to meeting the long-term care needs of a patient with a major mental illness and personality disorders.
14CAMH filed an affidavit dated October 11, 2016 by Dr. Padraig Darby, a psychiatrist with a practice at the forensic service unit at CAMH. He is the person in charge. He speaks about CAMH’s Secure Forensic and General Forensic Units and the number and availability of beds. His evidence is that during the period Mr. Kaminski has been on the wait list the occupancy rate for forensic beds has been 100%. Dr. Darby explains there is almost always a waiting list for admission to the forensic unit and went on to say that the wait list situation is dynamic and fluctuating based on a number of factors. On October 11, 2016, the date of Dr. Darby’s affidavit, Mr. Kaminski had waited 202 days for a bed on a secure forensic unit which, according to Dr. Darby, is not an atypical wait time.
15CAMH is acutely aware of the critical problem with inadequate forensic beds. Dr. Darby addresses how CAMH is seeking to ameliorate the wait times for admission. It is clear from his evidence that demand for forensic care outweighs the supply of beds. However, in Dr. Darby’s estimation, CAMH has been successful in reducing wait times over the past several years through sustained effort and employing collaborative and creative measures. There are weekly scheduled staff and management meetings directed to monitoring and updating bed use and availability, to anticipating discharges, admissions and transfers and to establishing the means to facilitate patient movement, and so on.
16Dr. Darby also speaks to the effect on CAMH of an order directing CAMH to admit an individual to a secure forensic bed immediately in the absence of confirmation of the availability of a secure forensic bed. He posits that this would result in unfairness to other patients, would lead to potential safety risks to patients and staff and would interfere with CAMH’s internal bed monitoring system.
MR. KAMINSKI’S DETENTION
17Dr. Darby commented on his knowledge of the forensic mental health program at Waypoint gleaned from his visits there and through working with Waypoint clinicians and administrators. Mr. Kaminski was under the care of Dr. Van Impe at Waypoint. He diagnosed Mr. Kaminski as schizophrenic with a delusional disorder and prescribed anti-psychotic medication.
18Dr. Darby’s view is that Waypoint provides assessment, treatment, rehabilitation and community reintegration services to its forensic patients, including persons like Mr. Kaminski, who are awaiting transfer to other forensic hospitals. Dr. Van Impe recommended to the ORB that it grant residual authority to Waypoint to continue to detain and grant privileges and conditions to Mr. Kaminski while he is awaiting transfer. Dr. Darby states that Dr. Van Impe’s recommendation is based on the anticipated delay in transferring Mr. Kaminski.
19ORB adopted that recommendation in its order by the words, “until such time as he is detained at the Secure Forensic Unit of the Centre for Addiction and Mental Health, Toronto, the person in charge of the Waypoint Centre for Mental Health Care, Penetanguishene, create a program for the detention in custody and rehabilitation”. The following portion of the order sets out the privileges the person in charge at CAMH in their discretion could extend to Mr. Kaminski such as the privilege to attend inside and outside the hospital for medical, dental or legal appointments or for compassionate reasons and the privilege to go outside the hospital’s perimeter escorted by staff.
20Dr. Darby provides an up-to-date account of Mr. Kaminski’s circumstances at Waypoint. On October 11, 2016, Dr. Darby spoke to Mr. Kaminski’s treating psychiatrist at Waypoint and she advised that Mr. Kaminski continues to receive anti-psychotic treatment and among other programs, he has been offered a program in cognitive behavioural therapy scheduled to start soon. He has been granted unescorted privileges within Waypoint which he uses up to two hours at a time.
THE PARTIES’ POSITIONS
Mr. Kaminski
21Counsel for Mr. Kaminski takes the position that the continued detention of Mr. Kaminski prejudices him by depriving him of the least onerous and restrictive disposition, as the ORB had directed. His view is that the term “forthwith” in the ORB’s order necessitates that Mr. Kaminski be “immediately” transferred to CAMH following the March 23 order. Mr. Kaminski posits that the ORB order if properly interpreted does not allow lawful authority for his continued detention at Waypoint.
22Compliance with the ORB’s direction, according to Mr. Kaminski, would require him to be immediately detained at CAMH on a secure unit with privileges including accompanied passes in the community; or to be transferred to a general forensic unit with privileges including indirectly supervised community passes.
23While Mr. Kaminski relied on certain cases to support his Charter challenge, which is not before the court, he also relied on those cases for his challenge to CAMH’s failure to transfer Mr. Kaminski to CAMH “forthwith” as instructed by the ORB. These cases however are distinguishable from the case at hand.
24Mr. Kaminski looks to the R. v. Pinet case for support. In that case, the accused was found NCR and was detained at the Mental Health Centre, Penetanguishene (the precursor name for Waypoint). After an ORB hearing ordering the accused to be transferred to Brockville Hospital, the accused sought on a habeas corpus with mandamus in aid application to be transferred to Brockville Hospital. There was an 11½ month delay in the transfer due to Brockville Hospital assigning Michael Pinet low priority due to a bed shortage. The Ontario Court of Justice on a Charter application rendered a declaration that the accused’s s. 7 and s. 9 rights were violated by the Ministry of Health for failure to comply with the ORB disposition.
25Mr. Pinet was ordered detained at Oakridge, Penetanguishene in 2004 − 12 years before the detention of Mr. Kaminski at Waypoint. His conditions at Oakridge were quite distinguishable from Mr. Kaminski’s conditions at present-day Waypoint. Mr. Pinet was housed in a maximum security facility when medium security had been ordered. Instead of receiving therapeutic treatment as ordered, he remained for 11½ months isolated in a maximum security lock down centre: [R. v. Pinet v. Penetanguishene Mental Health Centre, 2006 4952 (ON SC), [2006] O.J. No. 678 (Ont. S.C.J.)].
26In R. v. Singer the accused was found NCR on non-compliance charges and held at Don Jail before his ORB hearing. The Ontario Court of Justice ordered him detained at CAMH but he was actually detained at Don Jail due to a forensic bed shortage. At his disposition hearing before the ORB, the accused was ordered detained at CAMH. He brought a habeas corpus application but abandoned the application, except for costs, because he was transferred to CAMH ten days after the date set for the hearing. The court hearing the habeas corpus application found there was “an unacceptable departure from the reasonable standards expected of the prosecution”: [R. v. Singer, [2010] O.J. No. 5068, paras. 1-5 and 28, (Ont. S.C.J.)].
27Mr. Kaminski submits his continued detention at Waypoint constitutes a similar affront to the ORB. However, R. v. Singer, unlike the case at hand, involved a delay in transferring from the notoriously substandard conditions at the Don Jail. It is well known that the Don Jail was found unfit for detention and ceased housing prisoners from 2013.
28In another case the accused remained during a 60-day delay at Don Jail following a finding of NCR notwithstanding that the ORB had ordered him detained at CAMH. On a habeas corpus application, the court held the delay in transferring the accused was unreasonable. Mr. Kaminski contends that although he is not detained in Don Jail, a seven-month delay at Waypoint is much greater than 60 days and for that reason is highly prejudicial to him: [R. v. Hneihen, 2010 ONSC 5353, [2010] O.J. No. 4115, (Ont. S.C.J.)].
29Mr. Kaminski contends he is unable to participate in cognitive behavioural therapy and further asserts that only CAMH provides such therapy. Mr. Kaminski brought no evidence to establish this as a fact but contends the unavailability of this type of treatment creates “something akin to an extreme hardship”. Mr. Kaminski’s contention however is belied by the recent consultation Dr. Darby had with Mr. Kaminski’s current treating psychiatrist at Waypoint who indicated cognitive behavioural therapy will be available to Mr. Kaminski at Waypoint.
The Position of the Respondents
The Legal Framework
30The three Respondents (the Ontario Crown, CAMH, and Waypoint) advance substantially the same positions. The Ontario Crown and Waypoint have for the most part adopted CAMH’s submissions.
31The Respondents focus their submissions on the legal framework set by the Supreme Court of Canada in May v. Ferndale Institution. There are two elements required to be established to succeed in a habeas corpus application: (a) deprivation of liberty; and (b) the deprivation must be unlawful. The applicant has the onus of establishing deprivation of liberty. The detaining authority has the burden to prove the lawfulness of the deprivation.
32The central issues to be considered are:
a) whether Mr. Kaminski has experienced deprivation;
b) if so, whether that deprivation of liberty is unlawful; and
c) if the deprivation is unlawful, whether an order directing that Mr. Kaminski be transferred to CAMH immediately is a just and appropriate remedy.
[May v. Ferndale Institution, 2005 SCC 82, at p. 84, (S.C.C.)]
Deprivation of Liberty
33Mr. Kaminski did not expressly found his submissions on the May v. Ferndale legal framework. He does not dispute the ORB’s continuing jurisdiction over Mr. Kaminski and its authority to make the custodial disposition it rendered. Nor did he challenge the lawfulness of the ORB’s disposition itself. His complaint is centred on the seven-month delay on the view that CAMH did not comply with the ORB’s order to provide a transfer from Waypoint to CAMH immediately.
34It is not in question that Mr. Kaminski’s deprivation of liberty is a consequence of his NCR status pursuant to the ORB disposition. On March 8 the ORB held its initial hearing. Its disposition mandates Mr. Kaminski’s detention, warrants the ORB’s continued jurisdiction over Mr. Kaminski and justifies the ORB’s imposition of restrictions on his liberty. As the Supreme Court of Canada has held: “There must be evidence of a significant risk to the public before the court or Review Board can restrict the NCR accused’s liberty”: [Winko v. British Columbia (Forensic Psychiatric Institute), [1992] 2 S.C.R. 625, at para. 49, (S.C.R.)].
35It is not the delay in transferring Mr. Kaminski from Waypoint to CAMH itself that caused the deprivation of liberty. The ORB ordered him detained in a hospital and it was the order that is the cause of the deprivation of his liberty, not the delay. As CAMH submits, Mr. Kaminski would be detained in a hospital in any event and the fact he is detained in one hospital as opposed to another does not in and of itself result in an increased deprivation of his liberty.
36On the application Mr. Kaminski filed only an affidavit from a lawyer with his law firm which lacked supporting evidence critical to his submissions. I accept CAMH’s submission that Mr. Kaminski did not advance any evidence to justify his position that he experienced a deprivation of liberty from the delay in effecting his transfer between forensic hospitals as distinct from the deprivation of liberty that is a consequence of the order for detention.
37The least onerous and restrictive situation has to be determined from context. It cannot be concluded from the fact an accused is detained in the maximum secure unit at Waypoint that this is more restrictive than a secure unit at CAMH. It is an error of law to focus solely on the level of security as an indicator of whether a place of detention is more restrictive to the accused than another: [R. v. Magee, 2006 16077 (ON CA), [2006] O.J. No. 1926, at paras. 90 - 100, (Ont. C.A.)]. Applied to the case at hand, Mr. Kaminski was detained for only one month of the seven months on the secure unit at Waypoint. For the following six months he has been on a long-term rehabilitation unit at Waypoint receiving treatment focussed on his specific needs, including a therapeutic program and cognitive behavioural therapy.
38Mr. Kaminski has brought no evidence to show that he is not receiving programs or treatment opportunities at Waypoint that would otherwise be available to him at CAMH. There is no evidence that Mr. Kaminski’s quality of life is more restricted at Waypoint than it would be at CAMH. Dr. Darby’s evidence shows that at Waypoint, Mr. Kaminski has liberal privileges off the ward and has up to two hours on his own. There is a possibility of liberal privileges once at CAMH but whether Mr. Kaminski can exercise those privileges is at the discretion of the person in charge and therefore not guaranteed. There is a concern expressed by Mr. Kaminski’s treating psychiatrist at Waypoint that once at CAMH in Toronto, which puts him closer to Mr. Ryan, consideration would have to be given to the extent of his privileges.
39I conclude based on the evidence before court that Mr. Kaminski has not satisfied the onus to prove there is a deprivation of liberty caused specifically by the delay in transferring him from Waypoint to CAMH. This finding is sufficient to deny the application. But in the event I am in error I will go on to consider the second element.
The Lawfulness of the Deprivation of Liberty
40In the Respondents’ view the words in paragraph 2 of the ORB order provide for Mr. Kaminski’s continued custody at Waypoint, with appropriate privileges, until he is transferred to CAMH:
- IT IS FURTHER ORDERED that until such time as he is detained at the Secure Forensic Unit of the Centre for Addiction and Mental Health, Toronto, the person in charge of the Waypoint Centre for Mental Health Care, Penetanguishene, create a program for the detention in custody and rehabilitation of the accused within the Waypoint Centre for Mental Health Care – Provincial Forensic Program Division, in which the person in charge, in his or her discretion, may permit the accused:
a. To attend within or outside of the hospital for necessary medical, dental, legal or compassionate purposes; and
b. Hospital grounds privileges beyond the secure perimeter, escorted by staff.
41The Ontario Court of Appeal determined that the inclusion of such words as “until such time as he is detained at the Secure Forensic Unit of the Centre for Addiction and Mental Health, Toronto”, and following, are in keeping with the ORB’s authority and duty to make provision for interim custody and privileges pending a transfer from one hospital to another: [Mental Health Centre Penetanguishene v. Ontario, 210 ONCA 197 (Ont. C.A.)].
42In that case the ORB ordered the detention of Mr. Rea in a secure unit of CAMH with certain privileges but the order contained no terms providing for interim privileges during his six-month wait at the Mental Health Centre Penetanguishene (MHCP) pending his transfer to CAMH. The court allowed Mr. Rea’s appeal holding that the failure of the ORB to include express terms relating to interim custody and discretionary privileges was unreasonable. The court remarked:
An interim order of this kind would have added, a not insignificant advantage of providing express lawful authority for the host hospital to hold the detainee pending transfer. [emphasis added]
[MCHP v. Ontario, at para. 69]
43Courts have taken into account orders like that in Mr. Kaminski’s case where there is no date stipulated for the expiration of Waypoint’s authority and no date for the transfer to CAMH. The Ontario Court of Appeal found in one case that the Board did not act unreasonably in not imposing a time limit for the appellant’s transfer to the other facility. The court observed that there is no statutory requirement that the Board provide a date by which a hospital transfer order is to be implemented. A timeframe for implementation must be reasonable and what is reasonable will depend on a variety of circumstances: [Beauchamp v. Penetanguishene Mental Health Centre, 1999 3764 (ON CA), [1999] O.J. No. 3156, at paras. 31-33, (Ont. C.A.)].
44Like the Ontario Court of Appeal cases, Ontario Superior Court cases have recognized the practical realities of both the inevitable delay in implementing ORB disposition orders and of waitlists for forensic beds.
45An accused detained in a secure forensic assessment unit at CAMH sought through a habeas corpus with certiarori application to be transferred to a minimum secure unit of CAMH. In dismissing the application, the court accepted the reality that there were no beds available in the minimum secure unit at CAMH. The court’s decision was founded in part on the fact that other patients were waiting longer than the applicant and the unfairness that would result to those patients if the accused was transferred immediately: [Fortune v. HMQ and CAMH, unreported, December 11, 2009, Ont. Sup. Ct., MacDonald, J., at pp. 2-3].
46Another Superior Court case addressed the shortage of available beds at CAMH where an accused was found unfit and a treatment order recommended. A mental health court judge denied the treatment order and issued a warrant of committal forthwith to CAMH. There was no bed available at CAMH and the accused was held in a holding cell of a police station. The Superior Court judge granted the application, quashed the committal order and granted a treatment order holding:
It seems to me that the solution … is to recognize that there must be some allowance for time for the implementation of treatment for these individuals. Neither an accused person nor a court can reasonably expect that treatment facilities will be available immediately upon a determination of mental illness. Some reasonable period of time must be allowed for the system to accommodate the needs of these individuals. ...to hold otherwise is to insist on a system of perfection that is unrealistic in any normal society.
[CAMH v. Al-Sherewadi, 2011 ONSC 2272, [2011] O.J. No. 1755, at para. 14, (Ont. S.C.J.)]
CONCLUSION
47I find the Respondents have met their burden to prove the lawfulness of the March 23, 2016 ORB disposition order. I accept the Respondents’ position, and the case law clearly establishes that the most logical interpretation of the ORB’s intention in using the word “forthwith” is that Mr. Kaminski be transferred from Waypoint “forthwith upon a bed becoming available at CAMH.” The deprivation of Mr. Kaminski’s liberty was therefore not unlawful.
48I need not decide the third element in May v. Ferndale which depends on a finding of unlawfulness of the deprivation of liberty.
DISPOSITION
49The application is dismissed.
B.A. ALLEN J.
Released: October 26, 2016
CITATION: Kaminski v. Her Majesty the Queen in Right of Ontario, 2016 ONSC 6651 COURT FILE NO.: CR-16-10000315-00MO DATE: 20161026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
MICHAEL KAMINSKI Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Respondent
– and –
PERSON IN CHARGE FOR CENTRE FOR ADDICTION AND MENTAL HEALTH Respondent
– and –
PERSON IN CHARGE FOR WAYPOINT CENTRE FOR MENTAL HEALTH, PENETANGUISHENE Respondent
REASONS for decision
B.A. ALLEN J.
Released: October 26, 2016