V.S. v. Nova Scotia (Minister of Health), (2006) 249 N.S.R.(2d) 185 (CA)

• Judge: Cromwell, Saunders and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 15, 2006
• Jurisdiction: Nova Scotia
• Citations: (2006), 249 N.S.R.(2d) 185 (CA);2006 NSCA 122

V.S. v. N.S. (2006), 249 N.S.R.(2d) 185 (CA);

    792 A.P.R. 185

MLB headnote and full text

Temp. Cite: [2006] N.S.R.(2d) TBEd. NO.022

V.S. (appellant) v. Minister of Health (respondent)

(CA 262669; 2006 NSCA 122)

Indexed As: V.S. v. Nova Scotia (Minister of Health)

Nova Scotia Court of Appeal

Cromwell, Saunders and Fichaud, JJ.A.

November 15, 2006.

Summary:

A 56 year old woman suffering from chronic paranoid schizophrenia was hospitalized 43 times before she was first declared in 1999 to be an "adult in need of protection" under the Adult Protection Act. The woman had a history of not taking her medication unless compelled to do so, resulting in a continuing pattern of rapid deterioration and readmittance to hospital. The adult protection order permitted the woman to live somewhat independently in the community by providing for, inter alia, support persons to ensure that she took her medication. The adult protection order was renewed every six months. In 2005, the woman challenged the constitutionality of the cyclical six month review process, submitting that it violated her s. 7 Charter rights to liberty and security of the person and constituted cruel and unusual treatment contrary s. 12 of the Charter. The Charter challenge was combined with the Minister's next application for a renewal of the adult protection order.

The Nova Scotia Supreme Court, in a judgment not reported in this series of reports, renewed the adult protection order and dismissed the constitutional challenge. The woman appealed the renewal order. She abandoned her s. 12 challenge and sought, for the first time, to challenge the definition of "adult in need of protection" under s. 3 of the Act as violating s. 7 of the Charter.

The Nova Scotia Court of Appeal dismissed the appeal. The woman was not permitted, for the first time on appeal, to raise Charter issues not raised at trial where the record did not contain all of the facts relevant to the issue and the Minister would be prejudiced. The woman could initiate a new challenge in a court of first instance to pursue the new Charter issue. On the merits, the trial judge did not err in finding that the woman remained an "adult in need of protection".

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - In 1999, a woman was declared to be an "adult in need of protection" under the Adult Protection Act - The order had to be renewed every six months following a review hearing - The woman challenged the constitutionality of the cyclical review process, submitting that the stress it caused her violated her s. 7 Charter rights to liberty and security of the person - The Charter challenge was rejected at trial and the adult protection order was once again renewed - The woman appealed - For the first time, the woman sought to challenge the definition of "adult in need of protection" under s. 3 of the Act as violating s. 7 of the Charter - The Nova Scotia Court of Appeal held that the woman was not permitted, on appeal, to raise a Charter issue not raised at trial - The new Charter issue was more than just a refinement of her challenge to the six month renewal process - The trial record did not contain all of the facts material to the issue and the Minister would be prejudiced in a manner not remediable in costs - See paragraphs 20 to 37.

Guardian and Ward - Topic 813

Public trustee or guardian - Appointment - Child or adult in need of protection - General - [See Guardian and Ward - Topic 818 ].

Guardian and Ward - Topic 818

Public trustee or guardian - Appointment - Child or adult in need of protection - Protective order - A 56 year old woman suffering from chronic paranoid schizophrenia was hospitalized 43 times before she was first declared in 1999 to be an "adult in need of protection" under the Adult Protection Act - The woman had a history of not taking her medication when released from hospital, resulting in a continuing pattern of rapid deterioration and readmittance to hospital - The adult protection order permitted the woman to live somewhat independently in the community by providing, inter alia, support persons to ensure that she took her medication - The adult protection order was renewed every six months - The trial judge, on the Minister's latest renewal application, renewed the adult protection order on the ground that the woman continued to be an "adult in need of protection" as defined under s. 3 of the Act and it remained in her best interests to continue the order which compelled the woman to accept the Minister's services - The Nova Scotia Court of Appeal held that the trial judge did not err in renewing the order - The court rejected the woman's submission that a refusal to take medication was not relevant to whether she was an "adult in need of protection" - See paragraphs 38 to 59.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Civil Rights - Topic 8584 ].

Cases Noticed:

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 22].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 28].

R. v. K.S. (2000), 136 O.A.C. 238; 148 C.C.C.(3d) 247 (C.A.), refd to. [para. 28].

Perez et al. v. Salvation Army et al. (Governing Council) (1998), 115 O.A.C. 328; 171 D.L.R.(4th) 520 (C.A.), refd to. [para. 28].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163, refd to. [para. 28].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 28].

Canadian Newspapers Co. v. Canada, [1988] 2 S.C.R. 122; 87 N.R. 163; 32 O.A.C. 259, refd to. [para. 28].

Vickery v. Prothonotary, Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181, refd to. [para. 28].

Ross v. Ross (1999), 181 N.S.R.(2d) 22; 560 A.P.R. 22; 1999 NSCA 162, refd to. [para. 28].

S-Marque Inc. v. Homburg Industries Ltd. (1999), 176 N.S.R.(2d) 218; 538 A.P.R. 218 (C.A.), refd to. [para. 28].

Jeffrey v. Naugler (2006), 248 N.S.R.(2d) 372; 789 A.P.R. 372; 2006 NSCA 117, refd to. [para. 28].

Scott Maritimes Pulp Ltd. v. B.F. Goodrich Canada Ltd. and Day & Ross Ltd. (1977), 19 N.S.R.(2d) 181; 24 A.P.R. 181 (C.A.), refd to. [para. 28].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 28].

R. v. Demers (R.), [2004] 2 S.C.R. 489; 323 N.R. 201, refd to. [para. 32].

Nova Scotia (Minister of Health) v. R.G. (2005), 232 N.S.R.(2d) 51; 737 A.P.R. 51; 2005 NSCA 59, refd to. [para. 38].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 38].

Nova Scotia (Minister of Health) v. J.J., [2005] 1 S.C.R. 177; 231 N.R. 103; 231 N.S.R.(2d) 1; 733 A.P.R. 1, refd to. [para. 53].

Statutes Noticed:

Adult Protection Act, R.S.N.S. 1989, c. 2, sect. 3(b) [para. 25]; sect. 9(5), sect. 9(6), sect. 9(7), sect. 9(8) [para. 20].

Authors and Works Noticed:

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (2nd Ed. 2000), p. 66 [para. 28].

Counsel:

Claire McNeil and Natalie Kuzik (senior student), for the appellant;

John Underhill, for the respondent;

Louise Walsh-Poirier, Q.C., for the Attorney General.

This appeal was heard on October 12, 2006, at Halifax, N.S., before Cromwell, Saunders and Fichaud, JJ.A. of the Nova Scotia Court of Appeal.

On November 15, 2006, Fichaud, J.A., delivered the following judgment for the Court of Appeal.