Court File and Parties

COURT FILE NO.: CV-20-00652696-0000

DATE: 20220124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CHRISTOPHER DUCHARME, Appellant

– and –

DR. CRAIG HUDSON, Respondent

BEFORE: E.M. Morgan J.

COUNSEL: Christopher Ducharme, on his own behalf Antonietta Raviele [antonietta@rvalw.ca], as amicus curiae James Thomson [jthomson@tbll.ca], for the Respondent

HEARD: January 21, 2022

APPEAL FROM CONSENT AND CAPACITY BOARD

[1] In a decision dated July 24, 2020, the Consent and Capacity Board (the “Board”) found the Appellant incapable of consenting to treatment for a mental disorder and that he was unable to appreciate the reasonably foreseeable consequence of any decisions regarding treatment.

[2] The Appellant submits that the Board conducted its hearing in a way that denied him procedural fairness. In addition, the Appellant contends that the Board misapplied the relevant legal test and that the Appellant is indeed capable of making his own treatment decisions.

[3] Appellant’s original counsel, Christel Francis, received a disclosure package from the Respondent on July 3, 2020. That was the date on which the hearing was originally set to proceed. Ms. Francis advised the Board that she was unable to communicate with the Appellant and the hearing was adjourned to July 24, 2020. Ms. Francis was apparently unable to review the materials with the Respondent during the weeks between July 3 and July 24. The Appellant was being held in seclusion at Waypoint Mental Health Centre.

[4] On the new hearing date, the Respondent delivered to Ms. Francis a new disclosure package just before commencement of the hearing. Ms. Francis requested an adjournment to review the disclosure materials with the Appellant. That request was denied by the Board. The Board stated that it was important that the hearing proceed without further delay.

[5] Ms. Francis then advised the Board that under the circumstances she was unable to properly represent the Appellant and asked permission to withdraw from the proceeding as counsel of record. Permission was granted and the hearing proceeded without counsel representing the Appellant.

[6] The Board then briefly recessed for 7 minutes to allow the Appellant to review the documents that had just been produced by the Respondent. This short time does not meet the requirements of procedural fairness. The production was over 20 pages of dense, single spaced medical material. No one could have absorbed the material in a coherent way in that short a time, let along prepare a defense and plan out a cross-examination based on those materials. Indeed, if Ms. Francis was unable to properly prepare for a hearing under this kind of time pressure, it stands to reason that the Appellant, who is not legally trained, would have been unable to do so as well.

[7] The standard of review of a question of mixed fact and law is one of “clear and palpable error”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para 37. However, there is also a line of case law holding that an issue of procedural justice is to be reviewed on the standard of correctness: W.V. v. Strike, 2018 ONSC 28907. Either way, the Board’s decision at issue here falls below the requisite standard.

[8] In my view, the Board made a clear and palpable error in forcing the Appellant to proceed with the hearing having effectively not received any disclosure prior to its taking place. I would go so far as to say that this error was both “clear to the mind [and] plain to see”, and that it was “so obvious it can easily be seen or known”: Housen v. Nickolaisen, [2002] 2 SCR 234, at para 5.

[9] In R. v. Kankis, 2012 ONSC 378, the accused was only advised at the outset of the hearing that an NCR hearing was about to take place, and was thereupon handed a 13 page psychiatric report. Justice Trotter held that this amounted to a miscarriage of justice. He went on to observe, at para 37, that such a finding “need not always be supported by a demonstration of actual prejudice to the appellant; sometimes, public confidence in the administration of justice is just as shaken by the appearance as by the fact of an unfair proceeding.”

[10] In the instant case, having regard to the nature of the decision being made and the nature of the procedural misstep, together with the importance of the proceeding to the Appellant and the range of choices available to the Board, the scope of the Board’s duty of procedural fairness was a broad one: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at paras 233-27.

[11] As amicus counsel pointed out at the hearing before me, even a 30 or 45 minute adjournment and a pencil might have sufficed to allow the Appellant a modicum of preparation for the hearing. It was a palpable error for the Board not to advert to its inquisitorial role and to at least make an inquiry as to whether the Appellant had sufficient time to review the disclosure package and to proceed: R. v. LePage, 2006 CanLII 37775, at para 25 (SCJ). The Board elevated efficiency over fairness in a way that undermined the justice of its hearing. Its decision cannot stand.

[12] Capacity fluctuates over time. I did not see the Appellant on July 24, 2020, and his state of mind and capacity today may or may not reflect what the Board saw then or what a doctor examining him will see. I also do not have the benefit of evidence of capacity presented by the Appellant. Although he did appear before me at the hearing of this Appeal, his entire presentation was focused on the procedural error made by the Board and not on his own mental capacity. What evidence is in the appeal record was produced on July 24, 2020 without him having had time to review the case he had to meet.

[13] Accordingly, I cannot conclude that the Appellant either lacks or has capacity to make his own medical decisions. Under the circumstances, I am compelled to send the matter back to the Board for a new hearing.

[14] There will be an Order that the decision of the Board upholding the finding of incapacity was unreasonable and that the Board’s interpretation of section 4 of the Health Care Consent Act, 1996, SO 1996, c. 2, Sched. A, was incorrect and is rescinded.

[15] There will be a further Order that the Board convene a new hearing to consider the Appellant’s decision-making capacity. The Appellant is to be provided with disclosure of the case he must meet and full production of documentation by the Respondent at least one week prior to the date of the new hearing.

[16] Upon receiving the disclosure from the Respondent, the Appellant is to be given sufficient opportunity to retain and instruct counsel. That counsel may be any counsel of the Appellant’s choosing, including Antonietta Raviele if she is willing and available to take this case on. She has been very effective as amicus curiae and is already familiar with the matter. If the Appellant does not wish to retain counsel, I recommend that arrangements be put in place for Ms. Raviele to continue in the role of amicus if she is available to do so.

Date: January 24, 2022 Morgan J.