R. v. Phaneuf (S.), (2010) 275 O.A.C. 160 (CA)

• Judge: Doherty, Armstrong and MacFarland, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 20, 2010
• Jurisdiction: Ontario
• Citations: (2010), 275 O.A.C. 160 (CA);2010 ONCA 901

R. v. Phaneuf (S.) (2010), 275 O.A.C. 160 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JA.005

Her Majesty the Queen in Right of Ontario (defendant/respondent) v. Sylvie Phaneuf (plaintiff/appellant)

(C52119; 2010 ONCA 901)

Indexed As: R. v. Phaneuf (S.)

Ontario Court of Appeal

Doherty, Armstrong and MacFarland, JJ.A.

December 24, 2010.

Summary:

The plaintiff was arrested for criminal harassment. She was remanded in custody at the Royal Ottawa Hospital for the purpose of determining whether she was criminally responsible for her actions. A hospital bed was not immediately available and she was detained at the Regional Detention Centre for 16 days awaiting a bed. The plaintiff sued the defendant claiming damages for wrongful detention. She sought certification of the action as a class proceeding. She proposed to represent all persons in Ontario who were being or had been detained in a detention centre and/or prison awaiting an assessment of their mental condition pursuant to an order made under s. 672.11 of the Criminal Code since November 10, 2004.

The Ontario Superior Court, in a decision reported at [2007] O.T.C. 2077, certified the action as a class action. The defendant sought leave to appeal the certification decision.

The Ontario Divisional Court, per Ratushny, J., granted leave to appeal. There was good reason to doubt the correctness of the certification decision and the proposed appeal involved matters arising out of the certification decision that were of widespread importance. Whether the defendant could be liable in a class action for damages respecting court ordered detentions and assessments was clearly an issue of public importance and should be reviewed and resolved by a higher level of judicial authority.

The Ontario Divisional Court, in a decision not reported in this series of reports, allowed the appeal, set aside the order certifying the action as a class action and dismissed the plaintiff's claim on the basis that it did not disclose a cause of action. The plaintiff appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 646

Liberty - Limitations on - Prisoners and imprisonment - The plaintiff was arrested for criminal harassment - She was remanded in custody at a hospital for the purpose of determining whether she was criminally responsible for her actions - A hospital bed was not immediately available and she was detained at a detention centre for 16 days awaiting a bed - The plaintiff sued the defendant claiming damages for, inter alia, wrongful detention contrary to ss. 7 and 9 of the Charter and sought damages under s. 24(1) - A motion judge certified her action as a class proceeding - She proposed to represent all persons in Ontario who were being or had been detained in a detention centre and/or prison awaiting an assessment of their mental condition pursuant to an order made under s. 672.11 of the Criminal Code since November 10, 2004 - The Ontario Divisional Court allowed the defendant's appeal and dismissed the claim as not disclosing a cause of action - The Ontario Court of Appeal dismissed the plaintiff's appeal - It was "plain and obvious" that the relevant provisions of the Criminal Code could not be interpreted as requiring that accused who were ordered assessed in custody in a hospital be taken immediately to that hospital and could not be detained in a detention centre pending transfer to the hospital - It was plain and obvious that the mere fact that the plaintiff was detained in the detention centre under lawful orders pending transfer to a hospital could not give rise to a Charter claim under s. 7 or s. 9 - See paragraphs 14 to 21.

Civil Rights - Topic 1209

Security of the person - General - Detention and imprisonment - [See Civil Rights - Topic 646 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Civil Rights - Topic 646 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Civil Rights - Topic 646 ].

Criminal Law - Topic 92.2

General principles - Mental disorder - General - Assessment order - The Ontario Court of Appeal stated that it did not condone the warehousing in detention centres of persons who were apparently mentally ill and had been ordered assessed in a hospital under s. 672.16 of the Criminal Code - The court stated that the incarceration of mentally ill persons in a jail setting risked further deterioration of their mental state and potentially placed them at real risk of physical harm - If detention of the accused was justified only for the purpose of assessment and a bed was not readily available, the accused should not be ordered held in custody - In that circumstance, a judge could order the accused released on bail and defer the making of an assessment order until a bed was available - Also, the judge could make it clear to the Crown that if an in custody assessment in the hospital was necessary, there would be no assessment ordered until a bed was available and the case would not proceed without that assessment - Where the accused's detention was justified on public safety grounds as well as on assessment grounds, the judge would be required to make an order that contemplates incarceration of the accused in a detention centre before he was transferred to the hospital - In those circumstances, the judge could inquire into the location of the proposed detention and the circumstances of that detention - The judge could, where appropriate, make specific orders with respect to the place and circumstances of incarceration - The judge could also monitor the availability of space in the hospital by requiring that the accused be brought back within a few days of the initial order for a "bed check" - There might also come a point where an order directing transfer to the hospital was an appropriate exercise of the judge's discretion - See paragraphs 28 to 30.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - The plaintiff was arrested for criminal harassment - She was remanded in custody at a hospital for the purpose of determining whether she was criminally responsible for her actions - A hospital bed was not immediately available and she was detained at a detention centre for 16 days awaiting a bed - The plaintiff sued the defendant claiming damages arguing, inter alia, that the detention in jail rather than a hospital was a breach of the fiduciary duty owed by the Crown to the plaintiff - A motion judge certified her action as a class proceeding - She proposed to represent all persons in Ontario who were being or had been detained in a detention centre and/or prison awaiting an assessment of their mental condition pursuant to an order made under s. 672.11 of the Criminal Code since November 10, 2004 - The Ontario Divisional Court allowed the defendant's appeal and dismissed the claim as not disclosing a cause of action - The Ontario Court of Appeal dismissed the plaintiff's appeal - This claim could not possibly succeed - The Crown's duties to the plaintiff and to the public were circumscribed by the terms of the orders made in respect of the plaintiff's custody and the relevant provisions of the Criminal Code - The Crown was obliged to implement the court orders in accordance with their terms and in a manner consistent with the relevant provisions of the Criminal Code - In doing so, its obligation was to act in the public interest - That obligation could not possibly co-exist with a fiduciary obligation to the plaintiff to act in her best interests to the point of disregarding or compromising the Crown's obligation to act within the terms of the court orders and the provisions of the Criminal Code - See paragraph 22.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Equity - Topic 3606 ].

Cases Noticed:

R. v. Hussein (A.A.), [2004] O.T.C. 996 (Sup. Ct.), refd to. [para. 9].

R. v. Rosete (R.), [2006] O.J. No. 1608 (Sup. Ct.), refd to. [para. 17].

Counsel:

Joseph Obagi and Elizabeth Quigley, for the plaintiff/appellant;

Elaine Atkinson and Lise Favreau, for the defendant/respondent;

Louis Sokolov and Ryan Clements, for the intervenor, CLA.

This appeal was heard on December 20, 2010, before Doherty, Armstrong and MacFarland, JJ.A., of the Ontario Court of Appeal, who released the following decision on December 24, 2010.