P.S. v. Ontario et al.

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Weiler, Laskin, Sharpe, Gillese and van Rensburg, JJ.A.
• Citation: (2014), 327 O.A.C. 72 (CA),2014 ONCA 900
• Date: 03 September 2014
• Subject Matter: PERSONS OF UNSOUND MIND,CIVIL RIGHTS,PRACTICE

P.S. v. Ont. (2014), 327 O.A.C. 72 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.038

In The Matter Of the Habeas Corpus Act, R.S.O. 1990, c. H.1

In The Matter Of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11

P.S. (applicant/appellant) v. Her Majesty the Queen in Right of Ontario , Centre for Addiction and Mental Health, Royal Ottawa Health Care Group, St. Joseph's Health Care, London, Attorney General for Ontario and Waypoint Centre for Mental Health Care (respondents/respondents in appeal)

(C57256; 2014 ONCA 900)

Indexed As: P.S. v. Ontario et al.

Ontario Court of Appeal

Weiler, Laskin, Sharpe, Gillese and van Rensburg, JJ.A.

December 23, 2014.

Summary:

The applicant was convicted of sexual assault of a young boy and sentenced to 45 months in prison. On the day he was released from serving his sentence, he was involuntarily committed under the Mental Health Act (MHA) to a maximum security facility, where he had remained for 19 years with no apparent end to the committal in sight. The applicant was deaf and had limited access to interpreters throughout his 19 year confinement. The applicant applied for habeas corpus and challenged the constitutional validity of the provisions of the MHA providing for involuntary committal, as those provisions applied to long-term detainees (i.e., more than six months). The applicant contended that the MHA failed to provide an appropriate review procedure to protect his right to liberty (Charter, s. 7). He also alleged that his right to equality (s. 15) was violated because he had not received the level of interpretation required to meet his treatment, rehabilitative and other needs.

The Ontario Superior Court, in a decision reported [2013] O.T.C. Uned. 2970, held that the MHA contained a complete code for reviewing decisions made under that statute and therefore declined to exercise its habeas corpus jurisdiction. The court, except for finding some historical violations of s. 15(1) of the Charter by the Province before it divested the institution to a public corporation, rejected the applicant's Charter claims. The applicant appealed.

The Ontario Court of Appeal allowed the appeal. The court held that the provisions of the MHA dealing with involuntary committal violated s. 7 of the Charter by allowing for indeterminate detention without adequate procedural protection of the liberty interests of long-term patients. The court also concluded that the applicant had not been provided with adequate interpretation services and that his right to equality (s. 15) had been violated. As a remedy for the s. 7 breach, the court, pursuant to s. 52(1) of the Constitution Act, 1982, severed certain words from the MHA, such that the duration of MHA committals would be approximately six months. The court suspended the declaration for 12 months to afford the legislature the opportunity to consider how best to deal with the issue of long-term involuntary committals and the powers of the Consent and Capacity Board. Also, pursuant to s. 52(1), the court issued a declaration of the applicant's rights under s. 15(1) of the Charter. The matter of remedies specific to the applicant under s. 24(1) of the Charter were left to a later phase of the litigation.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 647

Liberty - Limitations on - Mental health legislation - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 659

Liberty - Limitations on - Committal of insane accused - The applicant, after serving his sentence for sexual assault, had been held in a maximum security facility for 19 years under the involuntary committal provisions of Mental Health Act (MHA) - He claimed that the involuntary committal provisions were contrary to s. 7 of the Charter - The Ontario Court of Appeal held that the MHA scheme violated s. 7 because it failed to include a fair procedure to ensure, on a regular and ongoing basis, that the risk to public safety continued, and that the individual's liberty was being restricted no more than was necessary to deal with that risk - The MHA lacked the procedural safeguards required by s. 7 to ensure adequate protection of a long-term patient's liberty interest - The infringement was not saved by s. 1 - The court held that severance was the appropriate remedy, such that the duration of MHA committals would be approximately six months - See paragraphs 111 to 132 and 193 to 214.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of a physical or mental disability - [See both Civil Rights - Topic 5660.4 ].

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - The Ontario Court of Appeal stated that "It is well established that s. 7 guarantees individuals facing detention the right to a fair process. Even where detention is justified for reasons of public security or safety, s. 7 mandates procedural protections that provide for a fair hearing by an independent and impartial arbiter ... The procedural requirements mandated by the principles of fundamental justice depend upon the context ... '[t]he greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter' ..." - See paragraphs 77 and 78.

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - The Ontario Court of Appeal stated that "In sum, the case law suggests that in the non-punitive detention context, s. 7 requires the body reviewing detention to have the procedures and powers necessary to render a decision that is minimally restrictive on liberty in light of the circumstances necessitating the detention" - See paragraph 92.

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 3177

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Requirement of a hearing - [See Civil Rights - Topic 659 and first and second Civil Rights - Topic 3106 ].

Civil Rights - Topic 3180

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Fair hearing - [See Civil Rights - Topic 659 and first and second Civil Rights - Topic 3106 ].

Civil Rights - Topic 3187

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to independent and impartial tribunal - [See first Civil Rights - Topic 3106 ].

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure contrary to fundamental justice - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 5644

Equality and protection of the law - Committal of or disposition re accused with mental disorder - [See second Civil Rights - Topic 5660.4 ].

Civil Rights - Topic 5660.4

Equality and protection of the law - Hearing impaired persons - The Ontario Court of Appeal stated that "Deafness is a physical disability that triggers the protection of s. 15(1) [of the Charter]: Elbridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 ... The guarantee of equal protection and equal benefit of the law gives a deaf person ... the right to adequate interpretation services in order to access governmental services. In Eldridge, the Supreme Court held .... that 'discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public'. The court also held ... that to fulfil its s. 15(1) obligation to ensure equal benefit of the law, an entity acting in a governmental role 'will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services'." - See paragraph 134.

Civil Rights - Topic 5660.4

Equality and protection of the law - Hearing impaired persons - The applicant, after serving his sentence for sexual assault, had been held in a maximum security facility for 19 years under the involuntary committal provisions of Mental Health Act (MHA) - The applicant was deaf - He alleged that his right to equality (s. 15) was violated because he had not received the level of interpretation required to meet his treatment, rehabilitative and other needs - The Ontario Court of Appeal, pursuant to s. 52(1) of the Constitution Act, 1982, declared that the applicant's s. 15(1) rights had been violated - The court also set out in general terms the nature and extent of his entitlement under s. 15(1), namely, that the Province and the institution were required to provide the necessary and appropriate communication services that would ensure: (i) that the applicant's basic and fundamental personal needs as a detainee were fully understood and addressed, and (ii) that the applicant was able to communicate effectively to access the therapeutic, treatment and other programs offered to hearing detainees - The matter of remedies specific to the applicant under s. 24(1) of the Charter were left to a later phase of the litigation - The court rejected the submission that any infringement of s. 15(1) could be saved by s. 1 of the Charter - See paragraphs 133 to 212.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 659 and second Civil Rights - Topic 5660.4 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - The Ontario Court of Appeal opined that the Consent and Capacity Board (Mental Health Act) did not have s. 24(1) (Charter) jurisdiction - See paragraphs 190 to 192.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 8380.14

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Severance of portion of statute or section - [See Civil Rights - Topic 659 ].

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - [See second Civil Rights - Topic 5660.4 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See both Civil Rights - Topic 5660.4 ].

Persons of Unsound Mind - Topic 203

Committal - Involuntary committal - General - Prison inmates - [See Civil Rights - Topic 659 and second Civil Rights - Topic 5660.4 ].

Persons of Unsound Mind - Topic 211

Committal - Involuntary committal - Procedure - General - [See Civil Rights - Topic 659 ].

Persons of Unsound Mind - Topic 297

Committal - Involuntary committtal - Review - Procedure - [See Civil Rights - Topic 659 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - The Ontario Court of Appeal stated that "... An appellate court will only entertain a fresh issue on appeal where the opposing party would not be prejudiced, where the interests of justice require the new argument to be heard and where the court would have a sufficient evidentiary record to entertain the issue" - See paragraph 48.

Cases Noticed:

Starnaman v. Penetanguishene Mental Health Centre and Robinson (1995), 83 O.A.C. 95; 24 O.R.(3d) 701 (C.A.), dist. [para. 29].

R. v. Gibbons (L.) (2010), 258 O.A.C. 182; 100 O.R.(3d) 248; 2010 ONCA 77, refd to. [para. 49].

R. v. Roach (K.) (2009), 246 O.A.C. 96; 2009 ONCA 156, refd to. [para. 48].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 78].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 78].

Kobzar, Re (2012), 292 O.A.C. 83; 110 O.R.(3d) 671; 2012 ONCA 326, refd to. [para. 78].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 79].

Dehghani v. Minister of Employment and Immigration, [1993] 1 S.C.R. 1053; 150 N.R. 241, refd to. [para. 79].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 82].

Winko v. Forensic Psychiatric Institute (B.C.) et al., [1999] 2 S.C.R. 625; 241 N.R. 1; 124 B.C.A.C. 1; 203 W.A.C. 1, refd to. [para. 83].

Penetanguishene Mental Health Centre et al. v. Ontario (Attorney General) et al., [2004] 1 S.C.R. 498; 318 N.R. 73; 185 O.A.C. 201; 2004 SCC 20, refd to. [para. 84].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201; 2004 SCC 46, refd to. [para. 84].

Pinet v. St. Thomas Psychiatric Hospital et al., [2004] 1 S.C.R. 528; 317 N.R. 365; 185 O.A.C. 8; 2004 SCC 21, refd to. [para. 84].

Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; 85 F.T.R. 99 (T.D.), refd to. [para. 88].

Mazzei, Re, [2006] 1 S.C.R. 326; 346 N.R. 1; 222 B.C.A.C. 1; 368 W.A.C. 1; 2006 SCC 7, refd to. [para. 90].

Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services - see Mazzei, Re.

C.B. v. Sawadsky et al., [2005] O.J. No. 3682, affd. (2006), 216 O.A.C. 105; 82 O.R.(3d) 661 (C.A.), leave to appeal refused (2007), 368 N.R. 393; 233 O.A.C. 398 (S.C.C.), refd to. [para. 103].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 109].

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al., [2011] 2 S.C.R. 175; 416 N.R. 1; 306 B.C.A.C. 1; 516 W.A.C. 1; 2011 SCC 23, refd to. [para. 110].

R. v. Conception (B.) (2014), 462 N.R. 315; 322 O.A.C. 199; 2014 SCC 60, refd to. [para. 121].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 130].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 134].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29; 2009 SCC 31, refd to. [para. 182].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 183].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 190].

Ontario (Attorney General) v. Jane Patient et al. (2005), 194 O.A.C. 331; 250 D.L.R.(4th) 697 (Div. Ct.), refd to. [para. 190].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 200].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161, addendum (1993), 147 N.R. 335, refd to. [para. 200].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 209].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 75]; sect. 15(1) [para. 133]; sect. 24(1) [para. 209].

Constitution Act, 1982, sect. 52(1) [para. 193].

Mental Health Act, R.S.O. 1990, c. M-7, sect. 20(1), sect. 20(3), sect. 20(4) [para. 24, Appendix], sect. 20(4)(b)(iii) [para. 202]; sect. 20(5), sect. 34, sect. 39(1), sect. 41(1), sect. 41(3) [para. 24, Appendix].

Authors and Works Noticed:

Brown, Donald J.J., Civil Appeals (2014) (Looseleaf), vol. 2, para. 10:4210 [para. 48].

Hannah-Suarez, Andres, Psychiatric Gating of Sexual Offenders under Ontario's Mental Health Act: Illegality, Charter Conficts and Abuse of Process (2005-2006), 37 Ottawa L. Rev. 71, generally [para. 100].

Henry, Yukimi, Psychiatric Gating: Questioning the Civil Committal of Convicted Sex Offenders (2001), 59 U.T. Fac. L. Rev 229, generally [para. 100].

Roach, Kent W., Constitutional Remedies in Canada, (2nd Ed. 2013) (Looseleaf), p. 14.970 [para. 200].

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), p. 289 [para. 7].

Counsel:

Mercedes Perez and Karen A. Steward, for the appellant;

Susan Adam Metzler and Kathryn M. Frelick, for Waypoint Centre for Mental Health Care;

Hart Schwartz and Joshua Hunter, for Her Majesty the Queen in Right of Ontario and the Attorney General for Ontario;

Karen R. Spector, for the intervenor, Mental Health Legal Committee;

David S. Morritt and Eric Morgan, for the intervenor, Canadian Civil Liberties Association.

This appeal was heard on September 3, 2014, before Weiler, Laskin, Sharpe, Gillese and van Rensburg, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Sharpe, J.A., with written reasons released on December 23, 2014.