R.C. v. Klukach
[Indexed as: C. (R.) v. Klukach]
Ontario Reports
Ontario Superior Court of Justice
Perell J.
December 11, 2018
143 O.R. (3d) 687 | 2018 ONSC 7415
Case Summary
Mental health — Consent and Capacity Board — Procedural fairness — Appellant challenging his involuntary admission to mental hospital — Consent and Capacity Board acceding to appellant's request to represent himself — Appellant experiencing significant delusions at time of hearing and clearly incapable of representing himself — Board instructing and assisting appellant — Board denying appellant procedural fairness by not also appointing amicus curiae to assist it — Appellant's constitutional right to represent himself not precluding board from appointing amicus.
The appellant was suffering from schizoaffective disorder. He was involuntarily admitted to the Centre for Addiction and Mental Health, and his attending psychiatrist found him to be incapable of consenting to antipsychotic medication. He challenged both the involuntary admission and the finding of incapacity. He was initially represented by counsel, but the Consent and Capacity Board acceded to his request to represent himself. After a hearing, the board confirmed the finding that he was incapable of consenting to treatment. The appellant appealed.
Held, the appeal should be allowed.
The appeal was moot as the appellant had now been discharged from CAMH. However, it was in the interests of justice to hear it, as the matter of the role and responsibility of the board in providing due process to self-represented parties was a matter of public interest and importance.
The board took a proactive role and instructed and assisted the appellant throughout the hearing. However, the appellant was manifestly incapable of representing himself, and the board denied him procedural fairness by not also appointing amicus curiae to assist it. The appellant's constitutional right to represent himself did not preclude the board from appointing amicus. That was not to suggest that an amicus curiae must be appointed in every case before the board where a party wishes to exercise his or her right to represent himself or herself. There will be cases where, with or even without the assistance of the board, a person will have a procedurally fair hearing without the appointment of amicus curiae. However, this was not one of those cases.
Hillier v. Milojevic, [2010] O.J. No. 3457, 2010 ONSC 4514, 191 A.C.W.S. (3d) 1328 (S.C.J.); R. v. Romanowicz (1999), 1999 1315 (ON CA), 45 O.R. (3d) 506, [1999] O.J. No. 3191, 178 D.L.R. (4th) 466, 124 O.A.C. 100, 138 C.C.C. (3d) 225, 26 C.R. (5th) 246, 45 M.V.R. (3d) 294, 43 W.C.B. (2d) 339 (C.A.); 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, consd
Other cases referred to
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(3d) 1037 [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 97]; H. (J.) v. Alberta Health Services, [2017] A.J. No. 785, 2017 ABQB 477, 386 C.R.R. (2d) 244, 11 C.P.C. (8th) 312, 282 A.C.W.S. (3d) 75 (Q.B.); H. (Re), 2009 66343 (ON. C.C.B.); Hajgato v. London Health Assn. (1983), 1983 1687 (ON CA), 44 O.R. (2d) 264, [1983] O.J. No. 2911, 23 A.C.W.S. (2d) 54 (C.A.), affg (1982), 36 O.R. (2d) 669, [1982] O.J. No. 2564 (H.C.J.); I.Q. (Re), [2005] O.C.C.B.D. No. 267, 2005 40144 (C.C.B); J. (R.) v. Zalan, [2016] O.J. No. 1792, 2016 ONSC 2337 (S.C.J.); Jemmison v. Ohene-Darkoh, [2016] O.J. No. 3124, 2016 ONSC 3549 (S.C.J.); Khadr v. Canada (Attorney General), [2008] F.C.J. No. 47, 2008 FC 46, 54 C.R. (6th) 76, 322 F.T.R. 256, 166 C.R.R. (2d) 134, [2008] 3 F.C.R. 306, 2010EXP-69, 77 W.C.B. (2d) 248; M. (K.) v. Shammi, [2012] O.J. No. 683, 2012 ONSC 1102 (S.C.J.); M. (M.) v. De Souza, [2016] O.J. No. 960, 2016 ONCA 155; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 (2008), 90 O.R. (3d) 451, [2008] O.J. No. 1353, 2008 ONCA 265, 235 O.A.C. 227, [2008] OLRB Rep. March/April 306, 69 Admin. L.R. (4th) 271, 292 D.L.R. (4th) 554, [2008] CLLC Â220-054, 165 A.C.W.S. (3d) 772; 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; Mental Health Centre Penetanguishene v. Ontario, [2010] O.J. No. 1044, 2010 ONCA 197, 260 O.A.C. 125; Mission Institution v. Khela, [2014] 1 S.C.R. 502, [2014] S.C.J. No. 24, 2014 SCC 24, 2014EXP-1049, J.E. 2014-569, EYB 2014-235045, 455 N.R. 279, 64 Admin. L.R. (5th) 171, 351 B.C.A.C. 91, 307 C.C.C. (3d) 427, 306 C.R.R. (2d) 66, 9 C.R. (7th) 1, 112 W.C.B. (2d) 458; Neto v. Klukach, [2004] O.J. No. 394, [2004] O.T.C. 138, 12 Admin. L.R. (4th) 101, 128 A.C.W.S. (3d) 1008 (S.C.J.); New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47, 177 D.L.R. (4th) 124, 244 N.R. 276, J.E. 99-1756, 216 N.B.R. (2d) 25, 26 C.R. (5th) 203, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 552 A.P.R. 25, 90 A.C.W.S. (3d) 698; Ontario (Provincial Police) v. Thunder Bay (City) Police Service, [2015] O.J. No. 5594, 2015 ONCA 722, 340 O.A.C. 311, 330 C.C.C. (3d) 149, 126 W.C.B. (2d) 264; P. (D.) v. Betlen, [2015] O.J. No. 3893, 2015 ONSC 4442 (S.C.J.); Puri v. Papatheodorou, [2013] O.J. No. 2231, 2013 ONSC 2537 (S.C.J.); R. v. Atherley, 1998 6939 (NWT SC), [2001] O.J. No. 4363 (S.C.J.); R. v. Grice, 1957 375 (ON SC), [1957] O.J. No. 306, 11 D.L.R. (2d) 699, [1957] O.W.N. 527, 119 C.C.C. 18, 26 C.R. 318 (H.C.J.); R. v. Jackson (2015), 128 O.R. (3d) 161, [2015] O.J. No. 6274, 2015 ONCA 832, 25 C.R. (7th) 243, 87 M.V.R. (6th) 5, 342 O.A.C. 284, 332 C.C.C. (3d) 466; R. v. LePage, 2006 37775 (ON CA), [2006] O.J. No. 4486, 217 O.A.C. 82, [page689] 214 C.C.C. (3d) 105, 71 W.C.B. (2d) 748 (C.A.); R. v. Phung, [2006] O.J. No. 5663 (S.C.J.); Retief v. Ganjavi, [2013] O.J. No. 2118, 2013 ONSC 2654 (S.C.J.); Rogers Communications Partnership v. Ontario (Energy Board), [2016] O.J. No. 6437, 2016 ONSC 7810 (Div. Ct.); S.R. (Re), 2008 24495 (ON. C.C.B.); Salem v. Kantor, [2016] O.J. No. 6831, 2016 ONSC 7130 (S.C.J.); Schaeffer v. Ontario (Provincial Police), [2013] 3 S.C.R. 1053, [2013] S.C.J. No. 71, 2013 SCC 71, 452 N.R. 286, 304 C.C.C. (3d) 445, 312 O.A.C. 1, 2014EXP-11, J.E. 2014-8, EYB 2013-230835, 7 C.R. (7th) 59, 297 C.R.R. (2d) 260, 367 D.L.R. (4th) 1, 62 Admin. L.R. (5th) 1, 110 W.C.B. (2d) 786, varg (2011), 107 O.R. (3d) 721, [2011] O.J. No. 5033, 2011 ONCA 716, 246 C.R.R. (2d) 181, 284 O.A.C. 362, 278 C.C.C. (3d) 57, 341 D.L.R. (4th) 481, 209 A.C.W.S. (3d) 702, 98 W.C.B. (2d) 232; Sound v. Fitness Industry Council of Canada, [2014] F.C.J. No. 215, 2014 FCA 48, [2015] 2 F.C.R. 170, 455 N.R. 87, 120 C.P.R. (4th) 287, 72 Admin. L.R. (5th) 1, 238 A.C.W.S. (3d) 445; Starson v. Swayze, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, 2003 SCC 32, 225 D.L.R. (4th) 385, 304 N.R. 326, J.E. 2003-1132, 173 O.A.C. 210, 1 Admin. L.R. (4th) 1, 122 A.C.W.S. (3d) 938; T. (I.) v. L. (L.) (1999), 1999 19918 (ON CA), 46 O.R. (3d) 284, [1999] O.J. No. 4237, 181 D.L.R. (4th) 125, 126 O.A.C. 227, 92 A.C.W.S. (3d) 369 (C.A.); Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 5726 (ON CA), 49 O.R. (3d) 566, [2000] O.J. No. 3372, 192 D.L.R. (4th) 177, 162 O.A.C. 356, 48 C.P.C. (4th) 15, 36 R.P.R. (3d) 58, 99 A.C.W.S. (3d) 206 (C.A.); V. (W.) v. Strike, [2018] O.J. No. 972, 2018 ONSC 1263 (S.C.J.)
Statutes referred to
Canadian Charter of Rights of Freedoms, ss. 7, 11(d)
Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A [as am.], ss. 80 [as am.], (1) [as am.], (10), 81(1) [as am.], (a)
Mental Health Act, R.S.O. 1990, c. M.7, s. 48(1) [as am.], (3)
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 10 [as am.], 25.0.1, 25.1 [as am.]
Substitute Decisions Act, 1992, S.O. 1992, c. 30
APPEAL from a decision of the Consent and Capacity Board.
R.C.,self-represented.
Mercedes Perez, amicus curiae.
Kathryn A. Hunt, for respondent.
PERELL J.: —
A. Introduction
1Pursuant to the Health Care Consent Act, 1996,1 R.C. appeals a decision of the Consent and Capacity Board dated August 11, 2017. In its decision, the Board confirmed the attending psychiatrist's finding that R.C. was incapable of providing consent to a proposed treatment of antipsychotic medications.
2As I shall explain below, R.C.'s appeal is moot, but I shall exercise my discretion to hear and decide the appeal because it [page690] raises the important issues of procedural fairness and due process before the Board and of the adequacy of the Board's rules, procedures and practices with respect to parties who wish to represent themselves at a hearing before the Board.
3R.C., who is a self-represented litigate, appeared to argue the appeal, and he wished the appeal to be heard and not dismissed as moot, but it was amicus curiae who raised the matter of the policies and practices of the Board and whether R.C. had been afforded due process and procedural fairness.
4Amicus curiae submitted that after R.C. exercised his choice to represent himself at the hearing, the Board erred by allowed the hearing to continue without appointing an amicus curiae to assist the Board and without providing sufficient direction and assistance to R.C. to ensure that he received a fair hearing.
5As I shall also explain below, the Board did err and R.C. did not receive a procedurally fair hearing. Therefore, R.C.'s appeal should succeed to the extent of setting aside the Board's decision. No other relief is required.
6In the interest of protecting his privacy, I order an amendment to the style of cause to remove reference to R.C.'s proper name and I substitute initials.
B. Procedural Background: R.C.'s Proceedings before the Board
7On July 6, 2017, pursuant to the Mental Health Act,2R.C. was involuntarily admitted to CAMH (the Centre for Addiction and Mental Health). He had been brought to the hospital as a result of proceedings initiated by his sister. He was admitted, and Dr. Klukach was his attending psychiatrist.
8Dr. Klukach found R.C. incapable of consenting to treatment with antipsychotic medication.
9R.C. challenged both the involuntary admission and the finding of incapacity.
10A hearing before the Board was convened on July 20, 2017. On July 20, 2017, R.C. was represented by D'Arcy J. Hiltz, a very experienced counsel at Board hearings. The hearing, however, at the request of Dr. Klukach, was adjourned to July 26, 2017.
11On July 26, 2017, the hearing resumed and Mr. Hiltz again represented R.C. There was a preliminary motion with respect to R.C.'s involuntary patient status, but the matter of R.C.'s consent [page691] to treatment was not dealt with. R.C.'s hearing was adjourned again, this time to August 10, 2017.
12The hearing resumed on August 10, 2017 to address the merits of R.C.'s challenge to the involuntary admission and to Dr. Klukach's finding about R.C.'s incapacity to consent to treatment. At the hearing, Dr. Klukach was represented by counsel.
13At the August 10, 2017 hearing, R.C. was once again represented by Mr. Hiltz.
14However, after the hearing had commenced, R.C. said he had a Canadian Charter of Rights and Freedoms right to represent himself, and he requested that he be permitted to do so. R.C. was prepared to have Mr. Hiltz stay at the hearing to provide assistance to him "if needed".
15The Board acceded to R.C.'s request to represent himself.
16Mr. Hiltz remained present during the rest of the hearing, but his assistance was not sought by R.C. There was one modest involvement by Mr. Hiltz.
17As noted above, and as I will discuss in more detail below, the ground of appeal advanced by amicus curiae is that in allowing the hearing to proceed as it did with R.C. acting for himself, the Board erred by denying R.C. a procedurally fair hearing.
18The hearing was completed on August 10, 2017, and on August 11, 2017, the Board released its decision. It confirmed Dr. Klukach's finding that R.C. was incapable of providing consent to the proposed treatment of antipsychotic medications.
19R.C. appealed the Board's decision to this court.
20While the appeal to this court was pending, R.C. was discharged from CAMH, and he is no longer receiving treatment from Dr. Klukach.
21R.C. appeared to argue the appeal. Amicus curiae also appeared, as did counsel for Dr. Klukach.
C. Facts
22R.C. is in now in his 60s. In 1986, he was diagnosed as suffering from schizophrenia. His recent diagnosis is schizoaffective disorder. He has a very extensive history of treatment for mental health problems including several hospitalizations. I need not, however, detail his history of mental illness, save to say that his symptoms manifest themselves in stress, anxiety, agitation, irritation, paranoia, aggressive behaviour, disorganized and unfocused thinking, denial of reality, impaired judgment and a pervasive and deep delusional system. He manifested some of those symptoms during the hearing of this appeal.
23At the time of the August 10, 2017 hearing before the Board, R.C. was experiencing significant delusions. He believed [page692] that he was being framed, that his medical team was planting recording devices in him, that there were conspiracies to injure him and his family, that he was a member of NATO and the UN Atomic Energy Control, that he was not ill, that he did not require medical treatment, that he would receive no benefit from medical treatment, that the antipsychotic medications were toxins, and that he had been and would be harmed by the medical treatment.
24At the time of the August 10, 2017 hearing, approximately half an hour into the hearing, R.C. had a brief discussion with Mr. Hiltz. After this conversation, Mr. Hiltz advised the panel that R.C. wished to represent himself. Mr. Hiltz indicated that he would remain to assist as needed, and he said that R.C. accepted that he should remain to assist. The transcript sets out the following exchange:
Mr. Hiltz: Thank you for the opportunity to discuss a particular issue with R.C. Mr. C would like to represent himself at this point going forward and would like me to remain to assist him if he needs assistance. So, Mr. C. wishes to take over and wishes to represent himself.
Chairperson: Understand.
Mr. Hiltz: I've indicated to him if that's his wish, so be it; I'll let him do that subject to any concerns of the Board and I'll remain in attendance to provide him with whatever assistance he may require.
Chairperson: Okay. A quick question; I'll address it to both of you. Mr. Hiltz was partway through a submission and a motion. Is it your intent to continue with that motion or would you -- do you need some time to discuss that with Mr. Hiltz?
R.C.: Questionable. What was the discussion without my presence, which I conduct him to proceed in my absence at present? We've had a further discussion and as counsel suggested that I would represent myself and therefore require his assistance only if needed.
Chairperson: So, I'm happy to turn it over to you. Right now what we have before us is a motion, and I was just inquiring whether or not you thought there might be some benefit in Mr. Hiltz completing that motion. If you feel that you'd like to go forward, there's nothing that stops you from doing that.
R.C.: No, I'd like to proceed and make my own submissions, but I would like to prefer counsel to continue with the motions. The motion should not be granted because under the Charter right, the freedom of speech, acting on my behalf would be crucial in order to prove my innocence and not only to negotiate something beneficial, both for institutions and clients.
The Chairperson: We're very cognizant of your rights, we want to make sure that the process is fair and you have every opportunity. I think what I've heard -- you've said is you'd like Mr. Hiltz to assist you in some regard.
R.C.: Only if needed. [page693]
The Chairperson: -- and so the question I'm asking you at this point -- I'm just going to ask it one more time. Do you want Mr. Hiltz to assist you with the completion of this initial motion or not?
R.C. And then proceed?
The Chairperson: Yeah.
R.C.: Correct. Yes sir. Yes, Mr. Chair.
25After accepting that R.C. would represent himself after the completion of the preliminary motion by Mr. Hiltz, the Board heard the motion, recessed, and then upon reconvening, the chairperson explained how the hearing would continue. The Chairperson advised R.C. as follows:
The Chairperson: So, in terms of the process, it's important that the process be fair, thorough and orderly. By orderly, one of the things that we talk about is that, you know, one person speaks at a time and our job is to make sure that everybody has the chance to say what they want to say, whether it's through counsel or by themselves. In this case, Dr. Klukach is going to have the burden of proving that the criteria be met for involuntary status as well as with respect to the legal test for incapacity. For that reason, he'll present his evidence first. It typically takes the form of documents and oral testimony. Once he's set out his evidence, you will have an opportunity to ask him questions; when I say you, I mean R.C. will have the opportunity to ask him questions . . . The panel members may also ask questions. Once his evidence -- Dr. Klukach's evidence -- is over, we'll turn it over to you and we'll ask you whether you want to testify. The important . . . [interruption by R.C.] . . . what I wanted to let you know is there's absolutely no requirement for you to testify. If you want to, you can; but then if you do that, you may get questions from the doctor and you may get questions from the panel . . . So once everybody's evidence has been heard, we're going to ask the parties for their closing submissions and when we ask for closing submissions, one of the things you want to do is tell us what issues you think are important, what's the evidence you think that supports them and what outcome you'd like the panel to reach. Once we receive those from you, we will ask you to leave because the hearing will be over, and then the panel will stay behind, and we'll deliberate, and we'll have a decision out to you through your counsel within twenty-four hours.
26The hearing then continued. A review of the transcript of the hearing on August 10, 2017 reveals that during the course of the hearing, the chairperson told R.C.
(a) that the first step at the hearing would be to hear the doctor's evidence;
(b) when it was R.C.'s turn to ask Dr. Klukach questions;
(c) that cross-examination questions may be leading questions, but the questions must be relevant;
(d) that it was desirable to break a long and multi-faceted cross-examination question into shorter questions; [page694]
(e) that his questions should focus on the issues that the panel needed to make a decision; visualize: "questions that are related to your ability to consent to treatment with antipsychotic medication and whether or not you are at risk of experiencing physician impairment, whether or not you pose a risk to others. Those are the things that are -- we're concerned about today.";
(f) that if R.C. gave evidence, then he would be questioned by Dr. Klukach and by the panel;
(g) when testifying, that R.C. should tell the Board whether he thought his mental health would deteriorate if he left hospital and whether he thought he was at risk of suffering serious physical impairment; and
(h) that R.C. should indicate what findings he would like the panel of the Board to make.
27A review of the transcript also reveals that R.C. interrupted the chairperson on several occasions and wished to ask questions and make submissions about a variety of irrelevant matters including whether his detention was contrary to the Criminal Code;whether Dr. Klukach was delusional; whether disciplinary action should be taken against Dr. Klukach; whether patients should be allowed to consume oxygen; whether Dr. Klukach was depriving him of his legal and moral rights. The chairperson from time to time would tell R.C. to stop an irrelevant line of questioning.
28Before the closing submissions, the chairperson stated to R.C.:
Feel free to make your submissions, but we are very concerned about a very narrow set of issues and you're taking us on a very broad -- and we really don't have the time or the resources to hear things that are not relevant to this case. So, if you can focus in on the issues today about you being in the hospital, why you're here, whether or not you should be able to make decisions around treatment -- that's what we're really focused on.
D. Is R.C.'s Appeal Moot?
29In the immediate case, R.C. is no longer a patient of Dr. Klukach and no treatment is being proposed for R.C. Thus, there is no longer a live controversy between the parties and the appeal is moot.3 [page695]
30A case is said to be moot when the dispute between the parties has been resolved, has vanished or faded away. With some exceptions, a court will not hear or decide a case that is moot.4 The general rule of mootness is that courts will not decide hypothetical or academic questions and will decline to hear a case where the outcome has no practical effect.
31There are exceptions to the mootness rule, and the court has a jurisdiction to hear a moot proceeding in the interests of justice.5 Where there is no live dispute between the parties but there is the prospect that the contentious legal issue that prompted the proceedings will repeat itself and remain unresolved and evasive of review, then the court may hear the matter notwithstanding its mootness. In circumstances where the court is in a position to make a fully informed decision and it is strongly in the public interest for the court to express an opinion on a legal issue that is uncertain but likely to recur, a court may decide to hear a case that is moot.6
32While no single factor is dispositive, important factors that govern the court's discretion to hear a moot matter are: (1) whether, despite the absence of a live controversy, the matter will be fully argued and the court will be able to make a fully informed decision; (2) whether the influence of the judgment on the disputed issue will have practical value in other cases; (3) whether the issue in the case is a matter of public importance of which a resolution would be in the public interest; and [page696] (4) whether, the court's activism in deciding the issue is appropriate having regard to its role and the role of the other branches of government.7
33In the immediate case, it is in the interests of justice to hear the appeal. The issue in the immediate case is significant to operation of the Mental Health Act and to the exercise of the Board's jurisdiction. The matter of the role and responsibility of the Board in providing due process to self-represented parties is a matter of public interest and of importance worthy of appellate review. It is a significant access to justice issue, and it is to be noted that both patient applicants and medical practitioner respondents appear self-represented before the Consent and Capacity Board.
34The issues were fully and very capability argued by Dr. Klukach's counsel and by amicus curiae. I, therefore, shall hear the appeal notwithstanding its mootness.
E. Did the Board Make a Reviewable Error?: The Submissions of the Parties
35On this appeal, R.C. made no coherent or meaningful argument about whether the Board erred in deciding that he did not have the capacity to consent to treatment.
36Amicus curiae submitted that it was apparent that R.C. could not represent himself in any meaningful way and by proceeding with the hearing, the Board failed to follow its own practice and policy guidelines, failed to assist R.C. throughout the hearing process, and it failed to consider the appointment of amicus curiae. Amicus curiae submits that these failures destroyed the hearings adjudicative and adversarial context and resulted in a legal process that was procedurally unfair.
37Dr. Klukach's counsel submitted that the Board made no error, that R.C.'s right to represent himself was respected and that the hearing on August 10, 2017 was a fair hearing that reached a just result. In assessing whether R.C. was provided with due process, Dr. Klukach's counsel submitted that the following factors should be noted. While not appointed amicus curiae, Mr. Hirtz [page697] remained throughout the course of the hearing and he was available to assist R.C. as R.C. might choose. While it is always arguable that more advice could have been given about the process and the procedure, there was no denial of R.C.'s right to cross-examine, to introduce evidence, to testify and to argue his case. While much of R.C.'s evidence and submissions were immaterial and irrelevant to the issues the Board had to decide, R.C. was told what were the material issues, and it was his choice to ignore those directions and to speak about other matters, and he said what he wanted to say. He knew the case he was required to meet, he was told what issues he should address, he was given an opportunity to address those issues, and there was no denial of procedural fairness.
F. Standard of Appellate Review
38Pursuant to s. 48(1) of the Mental Health Act, a party to a proceeding before the Consent and Capacity Board may appeal the Board's decision or order to the Superior Court of Justice on a question of law or fact or both.
39Pursuant to s. 48(3) of the Mental Health Act, s. 80 of the Health Care Consent Act, 1996 applies to the appeal. Section 80(10) of the Health Care Consent Act, 1996 provides as follows:
80(10) On the appeal, the court may,
(a) exercise all the powers of the Board;
(b) substitute its opinion for that of a health practitioner, an evaluator, a substitute decision-maker or the Board;
(c) refer the matter back to the Board, with directions, for rehearing in whole or in part.
40The case law establishes that on an appeal to the Superior Court, the decision of the Board applying the law to the evidence is subject to review on a standard of reasonableness;8 however, the Board's interpretation of the law is reviewable on a standard of correctness.9 [page698]
41Thus, an appellate court reviews the findings of fact of the Board and the Board's application of the law to the facts to the standard of reasonableness. To be reasonable, a decision must withstand a probing examination. It must satisfy the requirements for justification, transparency and intelligibility within the decision-making process.10 A reasonable decision must fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.11
42The reasonableness standard shows deference to the relative expertise of the Board members who are likely to have acquired experience over the course of their appointments in dealing with assessments of capacity and are uniquely positioned to hear the viva voce evidence of the parties. If the Board's decision, however, is unreasonable, then it should be set aside. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination. If the Board's decision is within the range of conclusions that could reasonably have been reached on the law and evidence, the decision should be affirmed.
43Decisions of the Board on questions of law are reviewed on a standard of correctness.12
44Decisions of the Board on matters of procedural fairness are reviewed to a standard of correctness.13 However, administrative tribunals are shown a margin of deference in determining what is the scope of procedural fairness in the context of a particular proceeding.14 Put somewhat differently, there is a range or [page699] scope to what counts for procedural fairness and depending on the administrative tribunal and its enabling legislation, a degree of deference is accorded the tribunal in determining the scope of procedural fairness but the tribunal must meet the standard of correctness in its application of procedural fairness.15
45In determining the scope of procedural fairness, the following non-exhaustive set of factors are relevant:16 (a) the nature of the statutory scheme and the terms of the statute pursuant to which the tribunal operates; (b) the nature of the decision being made; (c) the importance of the decision to the person affected; (d) the legitimate expectations of the person affected by the decision; (e) the choice of procedure available to the tribunal; and (f) process followed by the tribunal to make the decision.
46In the immediate case, neither R.C. nor amicus curiae made submissions about the reasonableness of the Board's decision or about whether the Board decided any questions of law. The issue on the appeal was the matter of procedural fairness.
47I conclude that the standard of review for the immediate review is the correctness standard.
G. Representation, Incapable Persons and the Practice and Procedure of the Consent and Capacity Board
48The crux of this appeal are the related matters of the representation of a person who is or may be incapable with respect to treatment, that person's right to represent himself or herself at a hearing of the Board, the Board's responsibility to ensure that a hearing is procedurally fair and the appointment of amicus curiae.
49The Consent and Capacity Board is subject to the Statutory Powers Procedure Act,17 of which the following provisions are relevant to the immediate case:
Right to representation
- A party to a proceeding may be represented by a representative.
Examination of witnesses
10.1 A party to a proceeding may, at an oral or electronic hearing,
(a) call and examine witnesses and present evidence and submissions; and
(b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.
Control of process
25.0.1 A tribunal has the power to determine its own procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1.
Rules
25.1(1) A tribunal may make rules governing the practice and procedure before it.
Application
(2) The rulesmay be of general or particular application.
50As may be noted, pursuant to s. 10 of the Statutory Powers Procedure Act, a party to a proceeding may be represented. The representative may be a lawyer.
51Pursuant to s. 81(1) of the Health Care Consent Act, 1996, where a person who is or may be incapable with respect to treatment is a party to a proceeding before the Board, he or she is deemed to have capacity to retain and instruct counsel. Section 81(1) states:
Counsel for incapable person
81(1) If a person who is or may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service is a party to a proceeding before the Board and does not have legal representation,
(a) the Board may direct Legal Aid Ontario to arrange for legal representation to be provided for the person; and
(b) the person shall be deemed to have capacity to retain and instruct counsel.
52On procedural consequence of s. 81(1) of the Health Care Consent Act, 1996, is that a patient or person challenging a finding of incapacity does not require a litigation guardian in order to retain and instruct counsel. Further, pursuant to s. 81(1) of the Health Care Consent Act, 1996,notwithstanding whether the person subject to the proceedings is or may be incapable with respect to treatment, he or she shall be deemed to have capacity to retain [page700] and instruct counsel. Pursuant to s. 81(1) (a), the Board may direct Legal Aid Ontario to arrange representation for a person who does not have legal representation.
53As noted above, s. 25.1 of the Statutory Powers and Procedures Act empowers the Board to enact Rules of Practice. For the present purposes of considering the matters of self-represented parties and procedural fairness in Board hearings, the pertinent rules of the Board are Rules 1.1, 3.1, 3.2, 3.3, 5.4, 5.5, 20.1, 23.1, 24.1 and 29.1, which state:
Purpose of the Rules
1.1 The purpose of these Rules is to provide a just, fair, accessible and understandable process for parties to proceedings before the Board. The Rules attempt to facilitate access to the Board; to promote respectful hearings; to promote consistency of process; to make proceedings less adversarial, where appropriate; to make proceedings as cost effective as possible for all those involved in Board proceedings and for the Board by ensuring the efficiency and timeliness of proceedings; to avoid unnecessary length and delay of proceedings; and to assist the Board in fulfilling its statutory mandate of delivering a just and fair determination of the matters which come before it.
Board Powers
3.1 The Board may exercise any of its powers under these Rules on its own initiative or at the request of any party. Unless otherwise provided, members of the Board, sitting alone or in a panel of three or five members to deal with particular applications, may exercise the powers provided to the Board in these Rules.
3.2 During any proceeding, the Board may do whatever is necessary and permitted by law to enable it to effectively and completely adjudicate on the matter before it. The Board may decide the procedure to be followed for any proceeding and may make procedural directions or orders at any time. The Board may impose such conditions as are appropriate and fair.
3.3 The Board may waive or vary any of these Rules at any time in order to ensure the fair and just determination of the proceedings before it.
Parties
5.4 If it appears to the Board, prior to the commencement of or at any time during the hearing, that the subject of the application will not have legal representation at the hearing, the Board may exercise its powers under section 81 of the Health Care Consent Act, 1996 to arrange legal representation for that person.
5.5 In order to exercise its powers under section 81 of the Health Care Consent Act, 1996, the Board or its administrative staff may make inquiries for the sole purpose of determining whether the subject of the application is or may be incapable with respect to treatment, admission to a care facility or [page701] a personal assistance service and/ or whether he or she wishes to be represented by counsel at the hearing.
Procedure at a Hearing
20.1 The Board controls its own process and will determine its own practices and procedures during the hearing according to the legislation and principles of common law.
Evidence
23.1 At a hearing, the Board may admit any evidence relevant to the subject matter of the proceeding. The Board may receive any facts agreed upon by the parties without proof or evidence. The Board may direct the form in which evidence shall be received.
Order of Presentation of Evidence
24.1 Evidence at a hearing shall be presented by the parties in the order directed by the Board. Questioning of witnesses will follow in the same order as the parties adduced evidence.
Argument and Submissions
29.1 After all of the parties have had an opportunity to present evidence, the Board shall give all parties an opportunity to make a final argument in support of the decision or order they w0ant the Board to make. No new evidence may be presented during final argument.
54In determining the procedure for a case, the Board has the jurisdiction to appoint an amicus curiae,18 and it has the jurisdiction to define the role of the amicus curiae for the particular case from the minimum of just standing by to be available to assist the unrepresented person as need arises to examining and cross-examining witnesses and to making submissions.19 The Board has exercised its jurisdiction to appoint an amicus in numerous cases.20
55The role of an amicus curiae varies and can be specified by the tribunal or court. The role may include some variation of [page702] representing unrepresented interests before the court; informing the court of some fact or circumstance that the court may otherwise be unaware of; advising the court of a point of law.21
56The Board's Policy Guideline 2, "Ordering Counsel Where the Subject of an Application Does Not Have Legal Representation", among other things, addresses the circumstance where a party requests to represent himself or herself at a Board hearing.
57The Board's policy about self-represented parties is based on its understanding of the Supreme Court of Canada's decision in R. v. Swain22 and the Ontario Court of Appeal's decision in R. v. Romanowicz.23 In K (Re),24 the Board stated: "It is the Board's policy to respect a person's wish (and right) to self-represent, where that wish is clearly conveyed to the panel hearing the matter."
58Policy Guideline 2 was amended after R.C.'s hearing, but at the time of his hearing, the guideline stated:
- Purpose
This Policy Guideline outlines the procedure for determining whether the Board should issue an order [pursuant to s. 80(1) of the Health Care Consent Act, 1996] to arrange for the legal representation of the subject of an application. The Policy Guideline also addresses the Board's duty to inquire and to elicit evidence when dealing with unrepresented subjects of an application.
- General Principles
3.1 Parties have a constitutional right to represent themselves if they wish, regardless of whether or not they are likely to represent themselves effectively.
- Process
4.5 The Board will strive to avoid adjournments as a general principle. When the subject of an application appears unrepresented, the panel of the Board will decide whether or not to proceed without legal representation by conducting a preliminary mini-inquiry to establish: [page703]
a. Whether the subject of the application refuses to obtain legal representation at the time of the hearing; and if so,
b. Whether the subject of the application has made an informed decision. The Board will not consider the objective wisdom of the choice once an informed decision has been made.
d. Whether the subject of the application has already been granted adjournment(s) to obtain counsel.
4.6 The Board has a duty to inquire. That duty gives the Board the authority to take a proactive role during the course of the hearing when dealing with the unrepresented subject of an application ("unrepresented person"). The panel of the Board should act in accordance with the following principles in any proceeding involving an unrepresented person:
a. Make the unrepresented person aware of the nature of the proceedings to the extent possible.
b. Explain the format of the hearing, the process of presenting evidence, and the basic principles of cross-examination.
c. Ask if the unrepresented person requires pen and paper for note taking.
d. Explain the role of the panel to the unrepresented person.
e. Instruct and assist the unrepresented person throughout the hearing while ensuring fairness to the other parties.
f. Accommodate the unrepresented person's lack of familiarity with the process while respecting the rights of the other parties. The panel should err on the side of providing more, rather than less, assistance to the unrepresented person.
g. Ask the unrepresented person if they have any questions and encourage questions throughout the hearing.
h. Satisfy itself that the legal requirements (for involuntary detention, incapacity, etc.) were met by the health practitioner (if applicable).
4.7 Rule 2 of the Rules of Professional Conduct of the Law Society of Upper Canada require a lawyer not to withdraw from representation of a client except for good cause and upon notice to the client appropriate in the circumstances. A lawyer may not withdraw if serious prejudice to the client would result. In those cases, the Board may order counsel to remain for the hearing as amicus curiae (in this case, friend of the Board).
59The amended, as of September 1, 2017, Policy Guideline No. 2 states:
- Purpose
1.1. This Policy Guideline outlines the principles behind and the procedure for ordering counsel where the subject of an application does not have legal representation. [page704]
- Legislation
2.1 Section 81(1) of the Health Care Consent Act, 1996 (HCCA) provides that if a person who is or may be incapable with respect to a treatment, admission to a care facility or a personal assistance service is a party to a proceeding before the Board, and does not have legal representation,
(a) the Board may direct Legal Aid Ontario to arrange for legal representation to be provided for the person; and
(b) the person shall be deemed to have capacity to retain and instruct counsel.
- General Principles
3.1 Parties have a constitutional right, affirmed by the Courts, to represent themselves if they wish, regardless of whether or not they are likely to represent themselves effectively. The deemed capacity of a person to retain and instruct counsel is not a rebuttable presumption; the person is capable. The deemed capacity includes the right to represent oneself and to terminate existing representation.
- Process
4.1 The Board will use the following procedures:
4.2 On receipt of an application, the Registrar's Office will promptly issue an order to Legal Aid Ontario in respect of any subject of an application who does not have representation. The exception to this is where there is a clear indication that the person does not wish to be represented by counsel or will arrange for their own legal representation.
4.4 The Board will strive to avoid adjournments as a general principle. When the subject of an application appears unrepresented, the panel of the Board hearing the application will decide whether or not to proceed without legal representation by asking whether the person wishes to have representation:
a. When so inquiring, the panel shall advise the individual of the nature of the proceeding including the implications of the decision(s), the fact that the assistance of counsel may offer benefit, and that Legal Aid Ontario may provide counsel at no cost;
b. If the person chooses to proceed without representation, no order for counsel will be made; and
c. If the person chooses to consult or retain counsel, the panel shall consider all relevant factors in determining whether to permit an adjournment for this purpose and shall consider whether or not it should order Legal Aid Ontario to appoint counsel.
4.6 The Board has a duty to inquire into evidence relevant to the matter(s) before them. That duty creates an obligation on the panel to take a proactive role during the course of the hearing when dealing with an unrepresented party. In accordance with the Board's duty to inquire, the panel of the Board [page705] shall act in view of the following principles in any proceeding involving an unrepresented person (particularly the subject of the application):
a. Make the unrepresented person aware of the nature of the proceedings to the extent possible.
b. Explain the format of the hearing, the process of presenting evidence, and the basic principles of asking questions.
c. Ask if the unrepresented person requires pen and paper for note taking.
d. Explain the role of the panel to the unrepresented person.
e. Instruct and assist the unrepresented person throughout the hearing while ensuring fairness to the other parties.
f. Accommodate the unrepresented person's lack of familiarity with the process while respecting the rights of the other parties.
g. Ask the unrepresented person if they have any questions and encourage questions throughout the hearing where it is fair and appropriate to do so.
Withdrawal from Representation
Rule 2 of the Rules of Professional Conduct of the Law Society of Upper Canada requires a lawyer not to withdraw from representation of a client except for good cause and upon notice to the client appropriate in the circumstances. A lawyer may not withdraw if serious prejudice to the client would result. In those cases, the Board may order counsel to remain for the hearing as amicus curiae (in this case, friend of the Board).
H. Discussion and Analysis
60In the immediate case, R.C. did not avail himself of the assistance of Mr. Hirtz and R.C. represented himself at the August 10, 2017 hearing before the Consent and Capacity Board. On this appeal, amicus curiae submits that the Board erred in how it handled these circumstances where, to use the language of the Board's own Policy Guideline 2, "the subject of an application does not have legal representation".
61On this appeal, amicus curiae submits that the Board erred because it ought to have appointed Mr. Hirtz to be amicus curiae and that in the absence of an amicus curiae,the Board did not adequately assist R.C. who was manifestly incapable of representing itself with the result that there was a procedurally unfair proceeding.
62In effect, amicus curiae submits that determining whether and when to appoint an amicus curiae is fundamentally important to the statutory scheme that governs the Board, to the nature of the decisions the Board must make, and to the legitimate expectations of the person affected by the decision, including his or her right to a fair proceeding and that the [page706] Board erred in determining the scope of procedural fairness in the immediate case.
63I agree that in the circumstances of the immediate case that the Board erred in administering its Rules of Practice and in determining the scope of procedural fairness, but I would explain the Board's error somewhat differently than amicus curiae because, in my opinion, the Board did not fail in offering assistance to R.C. as an unrepresented party, which is part of the Board's policy.
64The Board did take a proactive role and, among other actions, it did instruct and assist R.C. throughout the hearing while ensuring fairness to Dr. Klukach. The Board did accommodate R.C.'s lack of familiarity with the process while respecting the rights of the other parties. The Board appears to have proceeded in accordance with its Rules and with Guideline No. 2, which explains what the Board should do when a party decides to represent himself or herself.
65However, in my opinion, in determining the scope of procedural fairness, the Board erred and its decision was not correct and is subject to appellate review. The Board erred by misconstruing the nature of R.C.'s constitutional right to discharge Mr. Hirtz as his representative and to represent himself. More precisely, in circumstances where R.C. had made an informed decision to represent himself, the Board erred in construing the exercise of R.C.'s rights as precluding the appointment of an amicus curiae to assist the Board.
66In my opinion, in no circumstance is the Board precluded from appointing an amicus curiae,if that is what is required for the proceeding before the Board to be conducted in a procedurally fair manner. In the immediate case, R.C. was constitutionally entitled to represent himself regardless of the fact that it was a virtual certainty that he would not be an effective advocate. But that entitlement did not preclude the Board from discharging Mr. Hirtz as R.C.'s legal representative but then appointing him amicus curiae to complete the hearing on August 10, 2017.
67In my opinion, what the Board ought to have done is both: (a) to have assisted R.C. as a self-represented litigate, which the Board did do; and also, (b) to have appointed Mr. Hirtz amicus curiae to assist the Board, which the Board did not do. The hearing before the Board ought to have proceeded much like the hearing of this appeal proceeded. I heard R.C.'s submissions, which were largely unintelligible and unhelpful, and then I heard the helpful submissions of amicus curiae and Dr. Klukach's counsel.
68A party's decision to be a self-represented party, be it an informed decision, an uninformed decision, or a forced decision [page707] (as in the situation where the party cannot obtain legal representation or where the legal representative withdraws from representation) does not preclude the Board from appointing an amicus curiae to assist the Board. In other words, regardless of why a party is self-represented, be it a matter of a personal decision or not, the self-represented party should be assisted throughout the hearing and the Board may also in appropriate circumstances appoint an amicus curiae to ensure procedural fairness and due process.
69I now turn to the case law that supports my opinion.
70In R. v. Swain, supra,Swain was charged with assault and transferred to a psychiatric facility for the criminally insane. He was given medication, released into the community and granted bail. At his assault trial, over his objection, the Crown introduced evidence of insanity at the time of the offence. The result was that Mr. Swain was found not guilty by reason of insanity. He was remitted to the psychiatric facility under a warrant of the Lieutenant Governor, where he was detained for a period of time until he was released on conditions. Mr. Swain appealed and advanced several constitutional challenges that eventually reached the Supreme Court of Canada, where the court held that the common law rule permitting the Crown to adduce evidence of insanity against an accused's wishes violated s. 7 of the Charter.
71The Swain decision is authority that a person whose liberty or security of the person interest has been deprived is entitled to be represented by counsel and that person is also entitled to decide not to be represented by counsel. At paras. 33, 35-36 of his decision, Chief Justice Lamer, writing for himself and Justices Sopinka and Cory, stated:25
The appellant argues that it is a principle of fundamental justice that an accused person be able to participate in a meaningful way in his or her defence and to make fundamental decisions about the conduct of his or her defence -- such as waiving the defence of insanity. (I pause here to note that I will use the term "defence" in the broad sense of "any answer which defeats a criminal charge"; see my reasons for judgment in R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303, at p. 1318.) It is argued that the functioning of the adversarial system is premised on the autonomy of an accused to make fundamental decisions about his or her defence which require certain consequences and risks to be weighed. The appellant's argument is reflected in the words of Stewart J. in Faretta v. California, 422 U.S. 806 (Calif. C.A., 1975), at p. 834: [page708]
The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law".
Given that the principles of fundamental justice contemplate an accusatorial and adversarial system of criminal justice which is founded on respect for the autonomy and dignity of human beings, it seems clear to me that the principles of fundamental justice must also require that an accused person have the right to control his or her own defence. The appellant has properly pointed out that an accused will not be in the position of choosing whether to raise the defence of insanity at his or her trial unless he or she is fit to stand trial. If at any time before verdict there is a question as to the accused's ability to conduct his or her defence, the trial judge may direct that the issue of fitness to stand trial be tried before matters proceed further (see Criminal Code, s. 543, now s. 615). Thus, an accused who has not been found unfit to stand trial must be considered capable of conducting his or her own defence.
An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society's traditional respect for individual autonomy within an adversarial system. In R. v. Chaulk, supra, I indicated that the insanity defence is best characterized as an exemption to criminal liability which is based on an incapacity for criminal intent. In my view, the decision whether or not to raise this exemption as a means of negating criminal culpability is part and parcel of the conduct of an accused's overall defence.
72Justice Wilson wrote a concurring decision, and on the matter of an accused's right to control his or her own defence, she stated, at para. 164:
Like the Chief Justice, I find it unnecessary to deal with ss. 9 and 15 of the Charter since I agree with him that the common law rule as enunciated in R. v. Simpson (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337, and R. v. Saxell (1980), 1980 1623 (ON CA), 59 C.C.C. (2d) 176, infringes the accused's s. 7 right to liberty in that it deprives the accused of control over his own defences contrary to the principles of fundamental justice. I accept the appellant's submission that to permit the Crown to tender evidence of insanity against the wishes of the accused is to countenance too great an interference with the fundamental right of an accused to advance whichever defences he considers to be in his best interests and to waive those which he considers are not. I agree with the appellant that to allow the prosecution to raise the issue of insanity can completely distort the trial process because of the impact it can have on other defences raised by the accused, on the jury's assessment of his credibility, and on the traditional role played by defence counsel in an adversary system.
73It should be noted that R. v. Swain says nothing about how a trial should be conducted or about whether an amicus curiae may be appointed in circumstances where a person exercises his or her right to not have legal representation. [page709]
74The effect of an accused's decision to be self-represented was considered by the Ontario Court of Appeal in R. v. Romanowicz,where the court considered whether there is a constitutional right to effective assistance where an accused charged with a summary conviction offence is represented by an agent who is not a lawyer. In this case, the court stated, at paras. 27-30 and 37-38:
Every accused is owed a fair trial. That right is guaranteed by s. 11(d) of the Charter. Representation by professionals trained in the law and bound by the ethics and obligations of their profession serves that right. In some cases, legal representation is essential to the securing of a fair trial and an accused who wants counsel must be provided with counsel: R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 at 66 (Ont. C.A.). If an accused retains counsel, she is constitutionally entitled to competent representation by that counsel: R. v. L.C.B. (1996), 1996 937 (ON CA), 104 C.C.C. (3d) 353 at 367 (Ont. C.A.); R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35 at 56-58. The constitutional right to the effective assistance of counsel recognizes that counsel, by virtue of their professional training, will bring to their task an expertise which others, including the accused, do not possess. An accused who chooses to seek the assistance of legally trained counsel is entitled to assistance which reflects that expertise.
An accused is also entitled to proceed without counsel. The accused may choose self-representation, or if the Crown has proceeded summarily, the accused may choose to be represented by an agent: R. v. Vescio, 1948 53 (SCC), [1949] S.C.R. 139 at 142; R. v. Littlejohn and Tirabasso (1978), 1978 2326 (ON CA), 41 C.C.C. (2d) 161 at 173 (Ont. C.A.). By choosing to proceed without counsel, an accused elects to forego the right to the effective assistance of counsel. An accused cannot at the same time exercise the right to proceed without the assistance of counsel and yet demand the right to the effective assistance of counsel.
If an accused chooses self-representation, he or she cannot be heard to complain that the conduct of the trial did not rise to the level of a competent counsel. We see no reason why the same conclusion would not follow when an accused chooses to be represented by an agent who is not a lawyer. Nor does the fact that the agent is paid create any presumption as to the agent's competence. Just as where an accused chooses self-representation, an accused who chooses to be represented by an agent who is not a lawyer has decided against exercising the right to effective assistance of counsel, and cannot be heard to contend that the agent's performance should be tested against the standard reserved to counsel trained in the law: Harrison v. Canada, [1998] A.J. No. 109 at paras. 15-17 (Alta. Q.B.).
In holding that an accused who chooses to be represented by an agent and not a lawyer has no constitutional right to competent representation, we do not suggest that the accused's right to a fair trial is diminished. That right remains in full force and the absence of legally trained counsel puts an added obligation on the trial judge to protect that right: R. v. McGibbon (1988), 1988 149 (ON CA), 45 C.C.C. (3d) 334 at 347 (Ont. C.A.).
The kind of inquiry expected of a trial judge where an accused chooses to proceed without any representation provides guidance in cases where an accused chooses to be represented by an agent who is not a lawyer. In R. v. McGibbon, supra, Griffiths J.A. commented on the duty of a judge at the opening of a trial where the accused is unrepresented. At p. 346 he stated: [page710]
The trial judge, of course, has a duty to the accused to see that he or she has a fair hearing and that duty will generally cast upon the judge an obligation to point out to the accused that he or she would be at a distinct disadvantage in proceeding without the assistance of competent counsel and that the accused is entitled to have such counsel. Where the accused expressly desires counsel, it is clear that unless the accused has deliberately failed to retain counsel, or has dis-charged counsel, with the intent of delaying the process of the court, the trial judge should afford the accused an opportunity to retain counsel either at his expense or through the services of Legal Aid. If Legal Aid will not fund counsel it may be necessary at least in long complicated trials to stay the proceedings until counsel is funded.
In R. v. Hardy (1990), 1990 5615 (AB KB), 62 C.C.C. (3d) 28 (Alta. Q.B.), McDonald J. provided a checklist of issues which a trial judge should address before proceeding with a trial where the accused was un-represented by counsel. These included informing the accused of the right to be represented by counsel, explaining the assistance that counsel might provide, and ensuring that the accused did not wish to be represented by counsel.
75For present purposes, three points emerge from R. v. Romanowicz that should be kept in mind. First, a person has a constitutionally protected right to have a lawyer and also a constitutionally protected right to proceed without a lawyer. Second, where a person exercises his or her right to be a self-represented litigant, the trial judge has a duty to see that he or she has a fair hearing; the right to a fair trial is guaranteed by s. 11(d) of the Charter. Third, like R. v. Swain there is nothing in R. v. Romanowicz that would preclude a court from appointing an amicus curiae when a person has discharged his or her lawyer and he or she seeks to exercise his or her right to be a self-represented party.
76In the case at bar, amicus curiae relied on Justice Trotter's decision in Hillier v. Milojevic in support of her argument that Mr. Hiltz, who remained available through the hearing of August 10, 2018 ought to have been appointed amicus curiae,notwithstanding that he had been discharged by R.C. In the immediate case, in reaching my opinion, I too rely on the Hillier v. Milojevic decision.
77In Hillier v. Milojevic,in 2001, Mr. Hiller suffered a serious brain injury in a car accident in British Columbia. In 2005, after a B.C. physician declared Mr. Bon Hiller incapable of managing his financial and legal affairs due to his brain injury, the B.C. Public Guardian and Trustee was appointed guardian of this property. In 2008, Mr. Bon Hiller moved to Ontario, and in 2009, the B.C. Public Guardian and Trustee requested that his capacity to manage his financial affairs be assessed pursuant to Ontario's [page711] Substitute Decisions Act, 1992.26Ms. Milojevic, a capacity assessor, completed the assessment, and she concluded that Mr. Bon Hillier was incapable of managing property. As a result, the Ontario Public Guardian became the guardian of his property. He applied to the Consent and Capacity Board for a review of the assessor's finding.
78There was a hearing, and Mr. Bon Hiller appeared without counsel. Upon inquiry, he explained to the board member that he had discharged his lawyer because he had been told by the lawyer that if he was represented at the hearing, then he would not be allowed to make a personal presentation. Without disabusing Mr. Bon Hillier of the idea that he could not make a personal presentation if he was represented by a lawyer, the Board member told Mr. Bon Hillier that a lawyer could still be appointed for him if he wished. Mr. Bon Hillier declined the invitation, and he proceeded to represent himself at the hearing, where he was an ineffective advocate for his own case even though he had a reasonable strong argument that he was capable of managing his financial affairs. His presentation of his own case was unfocused, disorganized, disjointed, incomplete, verbose and grandiose. He did not address the relevant issues. The Board affirmed the capacity assessor's decision, and Mr. Bon Hillier appealed to the Superior Court.
79For the purposes of the appeal, Justice David Brown ordered the appointment of amicus curaie.27 In making the appointment, Justice Brown stated that it was apparent that Mr. Bon Hillier lacked a sufficient understanding of the legal system or the applicable principles of law to undertake any meaningful appeal.
80On the appeal itself, based on personal observation, Justice Trotter came to the same assessment about Mr. Bon Hiller's competence to argue his own appeal. Justice Trotter said that this want of understanding about the legal process would have been apparent during the hearing before the Board and that what occurred before the Board would not have happened had amicus counsel been present at the hearing. Justice Trotter ordered a new hearing before the Board because there had not been a fair hearing. He stated, at para. 52 of his decision:
Mr. Bon Hillier is a 28-year-old man who faces many challenges in his life. The finding of incapacity made by Ms. Milojevic will dramatically affect his [page712] life for years to come. Despite the best efforts of the Board, Mr. Bon Hillier was not afforded the opportunity to properly exercise his statutory right to challenge the finding that he is incapable of managing his property. In saying this, I acknowledge that Mr. Bon Hillier presents real challenges for those who are tasked with making decisions about his life (doctors, capacity assessors, adjudicators and judges). He lacks focus. He is verbose. He is also prone to bursts of grandiosity, a quality that most find off-putting. Yet, these characteristics are the product of the injuries Mr. Bon Hillier suffered as a result of his accident. They must be accommodated in a proceeding like the one before the Board. Of course, it is easy to sit back and criticize the process after the fact. It may not have been apparent to the Board exactly what lie ahead as the hearing continued. Also, I appreciate that it is sometimes difficult to gauge the cumulative impact of events as they transpire at a hearing. Be that as it may, looking back at what occurred, as an appeal requires, I have come to the conclusion that Mr. Bon Hillier was not able to properly challenge the conclusion of Ms. Milojevic. Consequently, there must be a new hearing.
81The case at bar has obvious similarities to the Hillier v. Milojevic case, and the Hillier v. Milojevic case is not distinguishable on the basis that Mr. Bon Hiller's decision to discharge his lawyer to present his own case was an uninformed or ill-informed decision. The point remains that regardless of his reasons for dismissing his lawyer, he did not receive a fair hearing because he was manifestly incapable of representing himself.
82The Hillier v. Milojevic is also not distinguishable on the basis that Mr. Bon Hiller apparently had a reasonable strong case to make to overturn the assessor's decision. In the immediate case, who is to say how strong R.C.'s case might be or what decision the Board would have made had the Board obtained the assistance of an amicus curiae, particularly in circumstances where a very competent lawyer was just standing by precluded from participating by the Board's misguided deference to R.C.'s wish to represent himself.
83To repeat the point made above, that R.C. did represent himself did not preclude the Board from appointing an amicus curiae just as it did not preclude the court on this appeal from hearing from both the self-represented party and the amicus curiae.
84To complete the explanation why in the immediate case, the Board erred in determining the scope of procedural fairness and in not appointing an amicus curiae, it is necessary at this juncture to analyze either iteration of Policy Guideline No. 2, set out above, which implement the Board's rules and the Board's powers and duties under s. 80(1) of the Health Care Consent Act in circumstances where a person decides to exercise his or her right to represent themselves. It is necessary to explain why the Guideline may be a source of confusion. [page713]
85The explanation of why the Guideline is confusing may begin with the observation that the intent and spirit of s. 81(1) of the Health Care Consent Act is to encourage and facilitate a party's constitutional right to exercise his or her right to have legal representation; thus, s. 81(1) empowers the Board to arrange for legal representation when a party presents himself as without representation.
86However, the operative thrust of the Board's Guideline is about when the Board should not exercise its powers under s. 81(1) to direct Legal Aid Ontario to arrange for legal representation. The operative thrust conflicts with the spirit of the Guideline, which remains that the Board should facilitate affected parties having legal representation unless satisfied that that the affected person has made an informed decision not to have legal representation, which the Board acknowledges is a constitutionally protected right. The Guideline is confusing because its thrust and its spirit conflict.
87The spirit of the Guideline is to encourage a party to have legal representation while acknowledging that the party has a right to chose not to do so. The operative thrust of the Guideline is to address what to do to assist parties who ignore the encouragement and do not have legal representation. This conflicted spirit and thrust is revealed by the features of the Guideline.
88By way of illustration, under s. 4.2 of the recent version of the Guideline, the Board automatically presumes that the affected person wishes legal representation and the Board will promptly issue an order to Legal Aid Ontario, unless there is a clear indication that the person does not wish to be represented by counsel.
89As another illustration, under s. 4.4 of the Guideline, where a person presents without legal counsel the Board will decide whether or not to proceed without counsel and inquire whether or not the subject of an application does actually wish to have representation while advising him or her of the benefits of the assistance of counsel and that Legal Aid Ontario may provide counsel at no cost. The Board is testing whether the party actually wishes to forgo his or her right to legal representation and the testing encourages the party to choose to be represented by a lawyer. The Guideline has the confusing double or triple negative of not permitting an affected person to exercise his or her right to represent himself or herself unless the Board is satisfied that an informed decision was made by the affected person. The guideline then goes on to attempt to ameliorate the person's decision to proceed without legal representation by directing how [page714] the Board should ensure that there is a fair hearing. The result is that the Guideline is confusing.
90The last point to extricate is that there is nothing in the Guideline that relieves the Board of its duty to provide a fair hearing and there is nothing in the Guideline that precludes the Board from appointing an amicus curiae simply because an affected party, like R.C., decides to exercise his or her right to represent himself or herself.
91In the case at bar, however, the Board appears to have felt constrained from appointing an amicus curie because it was satisfied that R.C. had decided to forgo legal representation. Decisions of the Board on matters of procedural fairness are reviewed to a standard of correctness and in my opinion the Board was incorrect in constraining itself from appointing Mr. Hiltz as amicus curiae.
92To avoid any misunderstanding about the above analysis and the above conclusions, I do not suggest that an amicus curiae must be appointed in every case where a party before the Board wishes to exercise his or her right to represent himself or herself. There will be cases where with the assistance of the Board or even without the assistance of the Board a person will have a procedurally fair hearing before the Board and the person will have no grounds of appeal associated with the procedural fairness of the hearing.
93Nor do I suggest that the Board should not respect a person's wish and right to self-represent where that wish is clearly conveyed to the panel hearing the matter. That decision must be respected, but respecting a party's right to not have legal representation does not preclude the Board in appropriate cases from appointing an amicus curiae.
94Nor do I suggest that there are no consequences to a party's decision to represent himself or herself. As the Court of Appeal noted in R. v. Romanowicz, supra, by proceeding without counsel, the person forgoes his or her constitutional right to competent representation, and that has consequences. But, as also noted, in R. v. Romanowicz, a party's decision to represent himself or herself does not diminish his or her right to a fair trial or hearing. The right to a fair trial or hearing imposes a burden on the Board to assist the unrepresented party and the right to a fair trial may in some -- but not all cases -- require the Board to appoint an amicus curiae. The case at bar was one such case. [page715]
I. Conclusion
95For the above reasons, the appeal is granted and the Board's decision is set aside.
Appeal allowed.
Footnotes
- S.O. 1996, c. 2, Sch. A.
- R.S.O. 1990, c. M.7.
- Giannoylis v. McIntyre, [2018] O.J. No. 407, 2018 ONSC 547 (S.C.J.); Capano v. Geagea, [2017] O.J. No. 4286, 2017 ONSC 2983 (S.C.J.); Dickey v. Alexander, [2016] O.J. No. 6566, 2016 ONCA 961; Retief v. Ganjavi, [2013] O.J. No. 2118, 2013 ONSC 2654 (S.C.J.); M. (K.) v. Shammi, [2012] O.J. No. 683, 2012 ONSC 1102 (S.C.J.).
- Schaeffer v. Ontario (Provincial Police) (2011), 107 O.R. (3d) 721, [2011] O.J. No. 5033, 2011 ONCA 716, at para. 44, vard (sub nom. Wood v. Schaeffer) [2013] 3 S.C.R. 1053, [2013] S.C.J. No. 71, 2013 SCC 71; Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 (2008), 2008 ONCA 265, 90 O.R. (3d) 451, [2008] O.J. No. 1353 (C.A.); Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, at para. 17.
- Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14; Doherty v. Horowitz, [2016] O.J. No. 3915, 2016 ONSC 4457 (S.C.J.); Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819 (2008), supra; Neto v. Klukach, [2004] O.J. No. 394, [2004] O.T.C. 138 (S.C.J.).
- Borowski v. Canada (Attorney General), supra; New Brunswick (Minister of Health and Community Services v. G. (J.), 1999 653 (SCC), [1999] 3 S.C.R. 46, [1999] S.C.J. No. 47; Tamil Co-operative Homes Inc. v. Arulappah (2000), 2000 5726 (ON CA), 49 O.R. (3d) 566, [2000] O.J. No. 3372 (C.A.).
- Borowski v. Canada (Attorney General), supra; 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; Fraser v. Canada (Public Service Staff Relations Board), 1985 14 (SCC), [1985] 2 S.C.R. 455, [1985] S.C.J. No. 71; H. (J.) v. Alberta Health Services, [2017] A.J. No. 785, 2017 ABQB 477; R. v. Jackson (2015), 128 O.R. (3d) 161, [2015] O.J. No. 6274, 2015 ONCA 832; Ontario (Provincial Police) v. Thunder Bay (City) Police Service, [2015] O.J. No. 5594, 2015 ONCA 722; Mental Health Centre Penetanguishene v. Ontario, [2010] O.J. No. 1044, 2010 ONCA 197; Tamil Co-operative Homes Inc. v. Arulappah, supra.
- Giecewicz v. Hastings, [2007] O.J. No. 4969, 2007 ONCA 890, leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 97; M. (M.) v. De Souza, [2016] O.J. No. 960, 2016 ONCA 155.
- Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at paras. 45- 49; Duarte v. Kingston Psychiatric Hospital, [2000] O.J. No. 3238 (S.C.J.), at paras. 10-11; T. (I.) v. L. (L.) (1999), 1999 19918 (ON CA), 46 O.R. (3d) 284, [1999] O.J. No. 4237 (C.A.), at pp. 290-92 O.R.; Hajgato v. London Health Assn. (1982), 36 O.R. (2d) 669, [1982] O.J. No. 2564 (H.C.J.), affd (1983), 1983 1687 (ON CA), 44 O.R. (2d) 264, [1983] O.J. No. 2911 (C.A.).
- Dunsmuir v. New Brunswick, supra, at para. 47; Giecewicz v. Hastings, supra, at para. 13; Jemmison v. Ohene-Darkoh, [2016] O.J. No. 3124, 2016 ONSC 3549 (S.C.J.), at para. 10; P. (D.) v. Betlen, [2015] O.J. No. 3893, 2015 ONSC 4442 (S.C.J.), at para. 12.
- Dunsmuir v. New Brunswick, supra, at para. 47.
- Starson v. Swayze, [2003] 1 S.C.R. 722, [2003] S.C.J. No. 33, 2003 SCC 32, at paras. 5, 10; Salem v. Kantor, [2016] O.J. No. 6831, 2016 ONSC 7130 (S.C.J.), at paras. 9-16; Doherty v. Horowitz, supra, at paras. 27-30; J. (R.) v. Zalan, [2016] O.J. No. 1792, 2016 ONSC 2337 (S.C.J.), at para. 89; Gajewski v. Wilkie (2014), 123 O.R. (3d) 481, [2014] O.J. No. 6026, 2014 ONCA 897, at para. 33; Puri v. Papatheodorou, [2013] O.J. No. 2231, 2013 ONSC 2537 (S.C.J.), at paras. 54-58.
- Mission Institution v. Khela, [2014] 1 S.C.R. 502, [2014] S.C.J. No. 24, 2014 SCC 24, at para. 79; Rogers Communications Partnership v. Ontario (Energy Board), [2016] O.J. No. 6437, 2016 ONSC 7810 (Div. Ct.); V. (W.) v. Strike, [2018] O.J. No. 972, 2018 ONSC 1263 (S.C.J.), at paras. 19-26.
- Rogers Communications Partnership v. Ontario (Energy Board), supra, at para. 18; Sound v. Fitness Industry Council of Canada, [2014] F.C.J. No. 215, 2014 FCA 48, at para. 42; V. (W.) v. Strike, supra, at paras. 19-26.
- Rogers Communications Partnership v. Ontario (Energy Board), supra, at para. 18; Sound v. Fitness Industry Council of Canada, supra, at para. 42; V. (W.) v. Strike, supra, at paras. 19-26.
- Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at paras. 23-27; V. (W.) v. Strike, supra, at paras. 19-26.
- R.S.O. 1990, c. S.22.
- Statutory Powers Procedure Act, s. 25.0.1 and Consent and Capacity Board Rules of Practice, Rule 3.2.
- Hillier v. Milojevic, [2010] O.J. No. 3457, 2010 ONSC 4514 (S.C.J.), at paras. 44-49.
- H. (Re), 2009 66343 (ON. C.C.B.); B. (Re), 2009 54132 (ON. C.C.B.); S.R. (Re), 2008 24495 (ON. C.C.B.); I.Q. (Re), [2005] O.C.C.B.D. No. 267, 2005 40144 (C.C.B.); A.M. (Re), 2004 6726 (ON. C.C.B.).
- R. v. LePage, 2006 37775 (ON CA), [2006] O.J. No. 4486, 214 C.C.C. (3d) 105 (C.A.); Khadr v. Canada (Attorney General), [2008] F.C.J. No. 47, 2008 FC 46; R. v. Phung [2006] O.J. No. 5663 (S.C.J.); R. v. Atherley 1998 6939 (NWT SC), [2001] O.J. No. 4363 (S.C.J.); R. v. Grice, 1957 375 (ON SC), [1957] O.J. No. 306, 119 C.C.C. 18 (H.C.J.).
- 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32.
- (1999), 1999 1315 (ON CA), 45 O.R. (3d) 506, [1999] O.J. No. 3191 (C.A.).
- 2009 (Ont. C.B.B.).
- Justice Gonthier, writing for himself and Justice La Forest, was in substantial agreement with the reasons of Chief Justice Lamer.
- S.O. 1992, c. 30.
- Hillier v. Milojevic, supra.