Centre for Addiction and Mental Health v Ontario, 2012 ONCA 342 (24 May 2012)
The Court of Appeal for Ontario allowed an appeal by the Centre for Addiction and Mental Health and another setting aside an order of the trial judge requiring immediate treatment of a mentally ill prisoner to be conducted at the Centre. The Court held that while to delay such treatment on the basis that there was not sufficient space at the Centre for the prisoner would undoubtedly be a deprivation of life, liberty and security of his person per article 7 of the Canadian Charter of Rights and Freedoms, to do so nonetheless came within the fundamental justice exception to that article.
The accused was charged with sexual assault. Because of his mental health difficulties, his matter was heard at “102 Court”, a forum specifically designed for persons with such concerns. Following a finding that he was unfit to stand trial, the trial judge made an order under section 672.58 of Canada’s Criminal Code requiring the accused to submit to antipsychotic drug therapy at the Centre.
The Centre advised the trial judge that there was no bed available for the accused and that none would become available for another six days. It refused consent for the order. The trial judge nonetheless proceeded, instructing that the accused was not to be taken to a jail or correctional facility under any circumstances. The accused was left in a hallway at an alternative mental health facility and the trial judge’s order stayed with the launch of the hospital’s appeal.
Justices of Appeal Simmons, Blair and Hoy agreed with the Centre’s submission that the trial judge erred in granting the treatment order in the absence of any consent by the Centre and in the knowledge that the Centre would not have the capacity to treat the accused for at least six days.
Analysing the legislative power of the trial judge to order treatment, Justice Blair held that it was implicit in the (prerequisite) consent of the hospital or mental health facility to which the accused was directed that it would have the “necessary facilities to enable [it] to provide the treatment required in a manner that is effective and ensures the safety of the patient, the medical and hospital staff”. As the Centre lacked bedspace, consent had not been satisfied.
Much of their Honours’ reasoning focussed upon submissions made by an amicus, Mr Burstein. Chief among these was that the consent requirement under section 672.62 of the Code was unconstitutional as it violated an accused’s rights under article 7 of the Canadian Charter of Rights and Freedoms; that is, “the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
Justice Blair accepted that a hospital’s refusal to provide consent as a precursor to a treatment order could engage an accused’s rights under article 7. After all, where accommodation cannot be made for an accused at a mental health facility he or she will likely be detained in jail. As Justice Blair noted, “detention and a threat of imprisonment can engage a person’s liberty interest, as can a continuation of the deprivation of liberty”, adding that “for mentally ill accused, the threat of imprisonment may also trigger particular security of person concerns”.
Nonetheless, their Honours recognised that the “competing demands within the psychiatric hospital environment” meant that some impingement on article 7 rights was inevitable. This created no discord with the principles of fundamental justice as it was “not unreasonable” for the accused (and the judiciary) to expect delay with respect to space available at mental health facilities. Moreover, the trial judge’s treatment order essentially leapfrogging the accused to the front of the queue may have “jeopardize[d] and disadvantage[d] other individuals who are also the subject of judicial orders”. The trial judge should not have ignored the “overall policy context” of funding for mental hospitals, according to Justice Blair. The message was simple: “an allowance of a reasonable period of time for compliance with the [treatment] order should be permitted”.
Finally, their Honours emphasised that the role of the trial judge in ordering any kind of treatment for the accused was “not medical but legal”. Accommodation at the Centre or its equivalent was ordered to ensure the accused would be fit to stand trial; it was not “intended to be therapeutic or [for his] medical benefit” and therefore minimal delay in the accused attaining that treatment was presumably more acceptable despite its bearing upon his article 7 rights.
Relevance to the Victorian Charter
This case is relevant to section 21 of the Victorian Charter. Similar to section 7 of the Canadian Charter, section 21 of the Victorian Charter protects the right to liberty and security of the person. While the Victorian provision does not contain the limitation that the right can be deprived “in accordance with the principles of fundamental justice”, the analysis required by the Canadian provision is similar to that under section 7 of the Victorian Charter, which provides that human rights may be subject to “reasonable limits as can be demonstrably justified in a free and democratic society”.
Few Victorian cases considering section 21 of the Charter have done so in the context of involuntary or court-ordered treatment as an alternative to incarceration. This case, as Justice Blair noted, provides an “illuminating window through which the tension between the court and the government and hospitals surrounding forensic psychiatric resources may be understood”, and is likely to inform future consideration by Victorian courts of how the rights involved in this tension should be balanced.
The decision is available online at: http://canlii.ca/en/on/onca/doc/2012/2012onca342/2012onca342.html
Ingrid Weinberg, Law Graduate, King & Wood Mallesons Human Rights Law Group.