Court File and Parties

Court File No.: CV-16-560258 Date: 20170427 Superior Court of Justice - Ontario

Re: Jacqueline Elder, Appellant – AND – John Klukach, Respondent – AND – Attorney General of Ontario, Intervener

Before: Justice E.M. Morgan

Counsel: Ken Berger, for the Appellant Kendra Naidoo, for CAMH and Dr. John Klukach Rochelle Fox, for the Attorney General of Ontario

Heard: April 27, 2017

Endorsement

[1] This matter comes to court as an appeal of the decision of the Consent and Capacity Board (the “Board”) dated September 1, 2016, in which the Board confirmed the Appellant’s involuntary admission to the Centre for Addiction and Mental Health (“CAMH”) and found that she is incapable with respect to determining the course of treatment proposed for her.

[2] The proceeding was commenced by Notice of Appeal dated September 8, 2016. The Appellant has also filed a Notice of Constitutional Question in the appeal seeking, among other things, a declaration that the criteria of psychiatric assessment and involuntary admission known as the ‘Box B’ provisions authorized under the Mental Health Act, RSO 1990, c M.7 (“MHA”) be declared in violation of her rights under sections 7, 9, 12, or 15 of the Charter and of no force and effect. In the Notice of Constitutional Question, the Appellant also seeks specific constitutional remedies under section 24(1) in respect of mistreatment she alleges has occurred while an involuntary patient at CAMH.

[3] The Appellant was discharged from CAMH on October 5, 2016, and so the involuntary admission confirmed by the September 1, 2016 decision of the Board ceased on that date. She was subsequently readmitted on an involuntary basis on October 17, 2016 and was discharged again on October 31, 2016. Her most recent involuntary admission to CAMH was on November 10, 2016, and she remained an involuntary patient there until April 21, 2017 when she apparently became a voluntary patient.

[4] Counsel for the Respondent and for the Intervener take the position that the appeal of the September 1, 2016 decision is now moot. They both submit that neither the merits of that decision, nor the constitutional points related to that decision and the statutory provisions under which it was made, should be heard by the court at this time. They contend that each decision for involuntary commitment under the MHA – each ‘Box B’ decision – stands on its own and must be subject to a separate appeal and challenge.

[5] Counsel for the Appellant submits that the entire matter should be heard today. He argues that the on-and-off status of the Appellant at CAMH is effectively one extended form of incarceration. He says that it does not matter whether she is at the institute on an involuntary or a technically voluntary basis, or whether she has some short stints in the community between each re-admission; the essence of her situation is that she has been there continuously for a long period of time and has suffered serious mistreatment as a consequence.

[6] This court has on previous occasions addressed the question of repetitive involuntary commitments of a patient under the MHA. In E.S. v Joannou, 2015 ONSC 1316, it was determined that once the patient is discharged an appeal of the commitment decision can no longer be entertained as there is no longer a live controversy between the parties. This is more than a technical point of procedure, as the physician who examines the patient and who makes the decision to admit the patient on an involuntary basis will not necessarily be the same each sequential time. Indeed, that is the case here, as the Respondent, Dr. Klukach, was only involved in the Appellant’s admission leading to the September 1, 2016 decision and was not involved in any of her subsequent admissions to CAMH.

[7] The view that the lis between the parties has disappeared once the patient is discharged from the challenged involuntary admission was reiterated in Beckford v Brook, 2016 ONSC 1549. There it was pointed out that each decision must be made on its own terms and in assessment of the patient as he or she appears on the date of the admission decision, and that a patient’s prior admission to a mental health facility does not govern any subsequent decision as to whether or not to admit that patient again. As Diamond J. put it, at para 19 of Beckford, “The appellant’s history of mental disorder is just one of several considerations for an attending physician who may one day assess the appellant anew.”

[8] Counsel for the Respondent and the Intervener also submit that since the substantive appeal has been rendered moot by the Appellant’s discharge on October 5, 2016, the constitutional issues are also moot. They argue that there is an inadequate factual underpinning to support a constitutional case once the actual appeal of the Board’s September 1, 2016 decision can no longer be pursued, and that “the substance of the litigation” has disappeared: Caparelli v Sirman, [1988] OJ No 951, at para 9 (Ont Dist Ct). They rely on the language of this court in Nasr v Wong, [2007] OJ No 5597, at para 8, where it was said in similar circumstances that the Board’s decision as originally appealed is now “of historical interest only”.

[9] Once an appellant is no longer a patient at the hospital, any appeal concerning that patient’s involuntary status necessarily becomes moot: Retief v Ganjavi and Cronje, 2013 ONSC 2654, at paras 13, 17. The ‘Box B’ provisions under the MHA make it clear that the question of whether the patient meets the prerequisites for admission on an involuntary basis must be addressed as at the time of the hearing. If the patient has been discharged from the hospital because she no longer meets those prerequisites there is no compelling reason to consider the appeal of the initial admission decision, Masih v Siekierski, 2015 ONSC 2877, at paras 14-18, even if that discharge into the community turns out to be of short duration. The next decision with respect to that appellant must be challenged in its own right, and cannot be challenged as a form of continued appeal from the last decision in respect of the same patient.

[10] In terms of the constitutional issues raised in this appeal, there is of course some precedent for considering what amounts to a moot case. In Borowski v Canada (Attorney General), [1989] 1 SCR 342, at paras 35-36, the Supreme Court of Canada indicated that there are some cases in which a court could exercise its inherent discretion to hear a constitutional case which, as between the parties, has been rendered moot. This generally has to do with the national importance of the issue at stake, such that where there is a need to “dispel any doubt” about the constitutionality of some enactment the court may consider the question: Reference Re Patriation of the Constitution, [1982] 2 SCR 793. Alternatively, where there is no other way to get a test case judicially considered, a court may dispense with the mootness doctrine for that limited purpose: Wood, Wire and Metal Lathers’ Int. Union v United Brotherhood of Carpenters and Joiners of America, [1973] SCR 756.

[11] That said, the Supreme Court has been equally clear that the mere fact that a similar case, raising an identical constitutional question, may arise in the future is not a reason to address a question that lacks an adversarial context: Borowski, at para 36. Indeed, the very fact that the question posed by the Appellant can recur with a new live dispute militates against the exercise of discretion to hear the constitutional challenge when there is no such live dispute.

[12] In addition to all of that, the Court of Appeal has within the past year had an opportunity to consider the ‘Box B’ criteria and has upheld their constitutionality. In Thompson v Ontario (Attorney General), 2016 ONCA 676, at paras 58-67. Sharpe JA concluded that the individualized nature of the Box B regime, and the tailored application of these criteria by trained medical professionals, negates the claims of arbitrariness, overbreadth, or breach of sections 7, 9, 12, and 15 of the Charter. While I do not deny that legal conclusions are predicated on the facts of a given case, and the Thompson case may have raised somewhat different facts than the Appellant’s case, the fact that the very statutory provisions under challenge here have recently been upheld by the Court of Appeal provides yet one more reason for me to decline to exercise my discretion to hear the case at this point now that the Board decision under appeal is no longer in force.

[13] The Appellant has, in fact, now issued a new Notice of Application challenging provisions of the MHA. This Notice reflects her current status as a voluntary patient at CAMH, and then goes on to enumerate various forms of unconstitutional mistreatment and abuse she has suffered there. I make no comment as to the merits of that new Application, nor do I wish to express any view on whether an application, as opposed to an action leading to a trial of issues, is the appropriate procedural route. I leave that to counsel to work out. I only observe that a stand-alone constitutional proceeding, unconnected to an appeal of the now moot Board decision, appears to be a procedurally better way to get the constitutional issues before the court. Although Appellant’s counsel would not want to put it this way, the issuance of a new Notice of Application, with a new court file number, seems to tacitly acknowledge that the current appeal is now, procedurally speaking, water under the bridge and a new proceeding is called for to raise the issues the Appellant wishes to raise.

[14] As a final note, I will point out that, in addition to the decision regarding involuntary admission to CAMH, the other decision confirmed by the Board on September 1, 2016 was with respect to the Appellant’s capacity to make decisions regarding her own treatment. Along with the confirmation of the decision to admit her on an involuntary basis, the Board also found that the Appellant lacks the requisite treatment capacity. Counsel for the Respondent and for CAMH concedes that the treatment capacity decision remains in force and so can be argued today. It does not expire with the patient’s discharge from the institution.

[15] Counsel for the Appellant responds that he is not in a position to argue the question of treatment capacity in the absence of the various constitutional remedies that he seeks on behalf of the Appellant. He submits that the constitutional violations that his client alleges, and the forcing of medical treatment on her through the finding of a lack of capacity, are part and parcel of the same package of issues.

[16] For reasons of mootness, the appeal of the involuntary admission decision of the Board dated September 1, 2016 is dismissed. This dismissal is without prejudice to the Appellant raising the constitutional issues that she sought to raise here in a new and more procedurally correct way.

[17] There will be no costs ordered for or against anyone in respect of this appeal.

Morgan J. Date: April 27, 2017