Mental Health Centre Penetanguishene v. Ontario

Mental Health Centre Penetanguishene v. Ontario Collection Decisions of the Court of Appeal Date 2010-03-16 Neutral citation 2010 ONCA 197 Docket numbers C50716 Judges Armstrong, Robert Patrick; Juriansz, Russell G.; Watt, David Subject Civil Decision Content CITATION: Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197 DATE: 20100316 DOCKET: C50716 COURT OF APPEAL FOR ONTARIO Armstrong, Juriansz and Watt JJ.A. BETWEEN The Person in Charge of Mental Health Centre Penetanguishene Appellant and Her Majesty the Queen Respondent and Thomas Stuart Rea Respondent and The Person in Charge of Centre for Addiction and Mental Health Respondent Janice E. Blackburn, for the appellant Grace Choi, for the respondent Her Majesty the Queen Jay Hammond, for the respondent, Person in Charge of Centre for Addiction and Mental Health Thomas Stuart Rea, in person Heard: January 29, 2010 On appeal from a disposition of the Ontario Review Board dated May 6, 2009, with Reasons for Disposition dated June 17, 2009. Watt J.A.: [1] In an ideal world, the disposition made by a provincial Review Board directing transfer of a mental disorder detainee from one hospital to another would take place immediately. Not so in the harsh light of reality in the first decade of 21st century Ontario. [2] Thomas Rea is a mental disorder detainee, a person found not criminally responsible on account of mental disorder (“NCRMD”), on a charge of criminal harassment. At his first disposition hearing before the Ontario Review Board, (the “Board”) Thomas Rea was detained without privileges in the Regional Forensic Services Program at the Mental Health Centre Penetanguishene (“MHCP”) under a warrant of committal issued by the trial judge. [3] At the disposition hearing common ground was prevalent. The parties agreed that Thomas Rea remained a significant threat to the safety of the public, and that he should be detained in custody in a hospital. Minimum security was deemed sufficient, including conditions that permitted the person in charge of the hospital to extend to Thomas Rea certain hospital and grounds privileges and supervised community access. [4] The administrator of the MHCP was familiar with Thomas Rea, thus suggested he be detained there in the minimum secure unit with a range of privileges at the discretion of the person in charge. Thomas Rea preferred a transfer to the Centre for Addiction and Mental Health (“CAMH”), a hospital closer to his family with whom he could visit if granted community access. His treating psychiatrist at MHCP acknowledged that a transfer to an equivalent level of security at CAMH could well be the least onerous and least restrictive disposition for Thomas Rea. [5] The treating psychiatrist at MHCP also expressed the view that, if Thomas Rea were to be transferred to CAMH, he could and should have the same discretionary privileges at MHCP during the time between disposition and actual transfer. [6] In its custodial disposition, the Board ordered that Thomas Rea be detained in the minimum secure unit at CAMH with various privileges, including supervised community access, to be determined by the person in charge of CAMH. [7] But the transfer to CAMH was not immediate. Six months after the disposition was issued, Thomas Rea remained at MHCP. He remained there without any privileges, because the disposition said nothing about his interim custody there and nothing about any interim privileges he might be afforded while awaiting transfer. [8] The issue raised on this appeal has to do with the duty of the Board to include directions as to the interim custody, and available interim privileges, in a disposition that involves the transfer of a detainee from one hospital to another. [9] For the reasons that follow, I would allow the appeal. THE FACTS The Finding [10] On March 9, 2009, a judge of the Ontario Court of Justice found Thomas Rea NCRMD on a charge of criminal harassment. The judge was not asked and did not conduct a disposition hearing but, at the prosecutor’s request, made an order under s. 672.46(2) of the Criminal Code detaining Thomas Rea at the Regional Forensic Services Program of MHCP. The Disposition Hearing [11] The Board held Thomas Rea’s initial disposition hearing on April 21, 2009. The Board considered that Thomas Rea remained a significant risk to the safety of the public. According to the Board, the least onerous and least restrictive disposition for Thomas Rea was detention in a minimum secure unit at CAMH with several privileges to be awarded in the discretion of the person in charge of the hospital. [12] The Board disposition was consistent with the position of the parties at the disposition hearing. The Availability Issue [13] Dr. Ann Jones, a psychiatrist at MHCP and Thomas Rea’s treating physician, testified at the disposition hearing. During cross-examination by a Board member, Dr. Jones acknowledged that an argument could be made that the least onerous and least restrictive disposition for Thomas Rea would be detention in minimum security at CAMH. There, while being held at an equivalent level of security, he would be closer to members of his family than at MHCP. [14] Dr. Jones did not know how long the waiting list was for transfer to CAMH. She conjectured that the wait could very well be months, but she had no recent experience with CAMH and transfers to the minimum secure unit of that hospital. Dr. Jones commented that Thomas Rea should have the same privileges that were being proposed for his detention at CAMH during the time he remained at MHCP awaiting transfer. [15] A Board member asked Dr. Jones about the availability of privileges for Thomas Rea at MHCP while he awaited transfer to CAMH. The following exchange took place: Q. The reason I’m asking is because would you be recommending if the Board orders that he be transferred to another hospital that he have privileges at this hospital? A. Certainly. Q. And if the Board were simply to transfer him to another hospital and give him privileges at that hospital, would this hospital give him the privileges that he would be entitled to at that other hospital? Do you follow that? A. No. Q. Okay. If a disposition said you are transferred to CAMH and at CAMH you have these five privileges, all right, and he was at the Regional. So that’s the disposition you would have, and say he’s sitting here three months awaiting transfer, what privileges would you give him? A. It would be helpful if the Board was intending to order transfer to CAMH to indicate that while he is awaiting transfer, he could have the following privileges at MHCP. Q. And if the Board did not put that helpful section in? A. I do not know how the hospital would interpret that. Q. Okay. All right, and based on your assessment of Mr. Rea’s risk at this time, I believe you said that he was eligible did you say at this moment accompanied passes? A. I believe at this time he would be suitable for grounds privileges with staff, yes. Q. Yes, accompanied by staff? A. Yes. [16] A few minutes later, the presiding alternate chairperson of the Board returned to the issue of interim privileges at MHCP while awaiting transfer to CAMH. Dr. Jones offered to contact the person in charge of MHCP to determine whether interim privileges would be extended at MHCP to the same extent as were contemplated after transfer to CAMH. During this exchange, counsel for Thomas Rea reported to the Board that the detainee wanted to be transferred to CAMH, irrespective of provision of equivalent interim privileges at MHCP. [17] After speaking to the Chief of the Forensic Division at MHCP, Dr. Jones reported to the Board: [G]iven that this is Mr. Rea’s initial disposition on his current NCR finding, he has no current disposition naming this hospital, giving him privileges at this hospital, and therefore were the Board to write an order transferring him to CAMH with privileges at CAMH, Dr. Brian Jones would not be recommending to the hospital that he get those same privileges at this hospital because he does not have a current disposition at this hospital on his current NCR finding granting him privileges at this hospital. [18] No Board member asked and no one provided information about bed availability or wait times at CAMH for Thomas Rea. The Disposition by the Board [19] In its disposition of May 6, 2009, the Board ordered that Thomas Rea be detained in the minimum security unit at CAMH. The person in charge of the hospital was given the discretion to provide a series of privileges to Thomas Rea. [20] Absent from the disposition was any mention of the date upon which Thomas Rea was to be transferred to CAMH, or of any privileges that the person in charge of MHCP could award the detainee while he awaited transfer to CAMH. The Reasons of the Board [21] The Board issued its reasons for disposition on June 19, 2009. There too, silence prevailed about transfer date, interim detention or placement, and the availability of privileges acknowledged to be appropriate pending transfer. The Appellate Proceedings [22] Thomas Rea remained at MHCP, without privileges, for six months after the Board made its disposition. [23] On November 13, 2009, a judge of this Court decided that the MHCP had residual custodial authority over Thomas Rea pending his transfer to CAMH and that the person in charge of MHCP had the discretion to extend privileges to Thomas Rea on the same terms as the person in charge of CAMH would have after transfer. [24] Transferred to CAMH on November 23, 2009, Thomas Rea has been detained in a minimum secure unit of CAMH with the availability of defined privileges left to the discretion of the person in charge of CAMH. THE GROUNDS OF APPEAL [25] This appeal raises two issues. The first is preliminary, and relates to the application of the doctrine of mootness to the circumstances of this case. The second is substantive and has to do with whether the decision of the Board not to make provision for interim or residual custody and privileges at MHCP pending transfer to CAMH was unreasonable or reflects legal error. ANALYSIS The First Issue: The Doctrine of Mootness and its Application The Background [26] When MHCP filed its notice of appeal from the Board’s disposition on July 7, 2009, Thomas Rea was detained at the Regional Forensic Services Program at MHCP. The original Form 49 warrant issued by the judge who had found Thomas Rea NCRMD was spent. The disposition of the Board ordered his transfer to the minimum security unit of CAMH, but made no provision for interim or residual custody or privileges at MHCP pending that transfer. In the result, Thomas Rea remained at MHCP, as if the original warrant remained controlling. He had no privileges. [27] On November 23, 2009, about one month prior to the date scheduled for and the actual hearing of MHCP’s appeal, Thomas Rea was transferred to CAMH where he remains subject to the terms of the Board’s disposition of May 6, 2009. The Positions of the Parties [28] MHCP, supported by CAMH, advances two alternative submissions in response to the Attorney General’s position that the appeal is moot and ought not to be heard. [29] In the first place, MHCP and CAMH say, the appeal is not moot. There remains a lis inter partes. True, the person most directly affected, Thomas Rea, has been admitted to CAMH in compliance with the Board disposition, thus the complaint about the failure to provide for interim or residual custody and privileges for him has vanished. But the issue remains live for the hospitals, both MHCP and CAMH, in every case in which a transfer between hospitals occurs. Failure to make interim or residual provisions leaves the detainee confined without lawful authority, exposing the host hospital to liability and vulnerable on habeas corpus. [30] Secondly, MHCP and CAMH argue in the alternative that, even if the appeal is moot, the court should exercise its discretion to hear it. Mootness is not an absolute bar. An appellate court has the discretion to decide whether it should hear an appeal that is moot. While no finite set of criteria emerges to inform the exercise of discretion to hear a moot appeal, but several features of this appeal favour hearing. [31] For one, MCHP and CAMH point out that an adversarial context exists. The issue can be well and fully argued on an ample evidentiary record, and is apt to arise in any case in which a custodial disposition may involve a transfer between hospitals with privileges to be provided or withheld at the discretion of the person in charge of the hospital. The issue is evasive of review since its existence is dependent on the speed with which the ordered transfer is executed. Several of the leading decisions under Part XX.1 of the Criminal Code were moot when heard and determined by appellate courts, including the Supreme Court of Canada, yet they were heard and determined nonetheless. [32] Further, MHCP and CAMH say, judicial economy favours hearing. A panel of this court has never considered the precise issue raised here. The Board’s own practice is uneven, suggesting that some guidance is essential. [33] The Attorney General responds that this appeal is moot. No lis inter partes remains. Thomas Rea is at CAMH in accordance with the disposition of the Board. The issues of interim or residual custody and privileges are historical, not current. It is now of no significance whether the decision of the Board to say nothing on either subject was unreasonable, or legally wrong. [34] In the alternative, the Attorney General advocates against any exercise of discretion in favour of the appellant. The issue raised is substantially dependent on the evidence adduced in individual cases, thus not susceptible to principled statements like those the appellant seeks here. The issue is not evasive of judicial review in later cases and its determination here is not consistent with the prudent use of scarce judicial resources. The Governing Principles [35] The doctrine of mootness is one aspect of a general practice of courts to decline deciding a case that raises only a hypothetical or abstract question: see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353. This general principle applies when the court’s decision will not, in effect, resolve some controversy that affects or may affect the rights of the parties: Borowski at p. 353. Courts decline to decide cases in which their decision will have no practical effect on the rights of the parties. This essential ingredient, a lis inter partes, must exist at the commencement of the proceeding and persist when the court is assigned the task of reaching a decision: Borowski at p. 353. [36] The courts enforce this general policy in moot cases. But the general rule is not unyielding. A court may exercise its discretion to depart from its policy or practice by considering two questions: i. Has the tangible and concrete dispute disappeared, leaving only academic issues? ii. If the answer to the above question is “yes”, should the court exercise its discretion to hear the case? The answer to the first question, whether a live controversy exists, determines the issue of mootness. The answer to the second question is only required where mootness has been established: Borowski at p. 353. [37] Several factors may induce the disappearance of the live controversy. The contentious issues may be of brief duration. The circumstances of the parties may eliminate the tangible nature of a dispute. The governing statute or controlling legal principle may change. An exhaustive list eludes composition: Borowski at p. 358. [38] An examination of the rationalia underlying the general rule informs the formulation of guidelines for the exercise of discretion in departing from the general rule against hearing and determining issues that are moot inter partes. To the extent that a particular foundation upon which the rule is grounded is absent or its grip is tenuous, the reason for its enforcement vanishes or diminishes: Borowski at p. 358. [39] One such rationale underlying the rule prohibiting forensic scrutiny of moot issues is that a court’s competence to resolve legal disputes requires an adversarial context. An adversarial context encourages the parties to put their best foot forward. Parties must frame their cases, adduce evidence, and advance available arguments. However, this requirement may also be satisfied where the necessary adversarial relationships survive the end of a live controversy. Collateral consequences of the outcome may provide the essential adversarial context: Borowski at pp. 358-359. [40] A second important and broad rationale upon which the mootness doctrine is founded is the concern for judicial economy. Judicial resources must be rationed among competing claimants. Live controversies, not academic endeavours, should attract these scarce resources. The academic debate can occur elsewhere. [41] But judicial economy is a two-way street. Sometimes, in cases that have become moot, a court’s decision will have some practical effect on the rights of the parties, even though it will not have the effect of determining the underlying controversy itself: Borowski at p. 360. The expenditure may also be warranted in cases in which, while the immediate controversy is moot, the circumstances are likely to recur but be of brief duration. The mootness doctrine should not be strictly applied that important questions that might independently evade review go unheard and undetermined by the court: Borowski at p. 360. [42] The mootness doctrine may also be shunted to the sidelines when the issues raised are of public importance and their resolution is in the public interest. In these cases, what is required is a delicate balancing of the economics of judicial involvement, on the one hand, and the social cost of legal uncertainty, on the other: Borowski at p. 361. The Principles Applied [43] Despite the absence of a live controversy between Thomas Rea and the Board, I am satisfied that we should exercise our discretion to determine the issues raised and fully argued about the Board’s authority and duty to provide for interim or residual custody and privileges pending transfer of a detainee to another hospital. [44] Disposition hearings before the Board are not adversarial. As the definition of “party” in s. 672.1 of the Criminal Code makes clear, parties other than the prosecutor and detainee appear before the Board. Their interests vary. If the parties fail to present sufficient information to permit the Board to discharge its statutory obligations, it falls to the Board to seek out additional evidence or material to fulfill its obligation: see, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 54. The absence of a lis between some of several parties does not mean that an appeal by another party is moot. [45] The issues raised by MHCP are not unique to Thomas Rea, or to MHCP or to CAMH. Rather, issues about interim or residual custody are apt to arise in any disposition that involves a transfer from one hospital to another; especially where, as appears to be the everyday reality, a delay in carrying out the disposition is reasonably foreseeable as it plainly was here. [46] The detritus of the Board’s failure to make provision for interim or residual custody and privileges in its first disposition may include the creation of a gap in the authority to hold the detainee. It may be arguable, for example, that the original Form 49 warrant of committal in this case was spent when the disposition was issued since the detainee had been dealt with according to law. The disposition directs the detainee’s detention in the transfer hospital. Under what authority then, does the host hospital continue a detention, that is no longer authorized by the original warrant? [47] A decision on the issues raised here may also have a practical impact on a group of mental disorder detainees of whom Thomas Rea was representative, but not unique: mental disorder detainees subject to custodial dispositions and hospital transfers. It may fairly be said that any detainee who finds him or herself in circumstances similar to those of Thomas Rea can invoke the appellate process and have the issue determined while the lis remains alive. But the issue remains live for only a short period in appellate time and thus is largely evasive of appellate review. Recourse to an extraordinary remedy is scarcely a viable alternative. [48] Having determined that this Court should exercise the discretion to determine the issues raised, what remains is an assessment of the merits of the claim. The Second Issue: Error or Unreasonable Decision in Failure to Include Interim Custody and Privileges The Background [49] Context is important in the resolution of MHCP’s claim that the omission of any provision for residual or interim custody or privileges was unreasonable and legally flawed. [50] Among the materials filed as an exhibit on the disposition hearing was the report of the administrator of MHCP, the host hospital. The administrator supported the opinion of the clinical team who were of the view that Thomas Rea remained a significant threat to the safety of the public due to his serious untreated mental disorder. The administrator also supported the clinical team’s unanimously recommended disposition as follows: [T]he Clinical Team is of the unanimous opinion that Mr. Rea should continue to be detained within the Regional Division of the Mental Health Centre Penetanguishene with the following privileges: 1. Indirectly supervised hospital and grounds privileges; 2. May enter the communities of Midland /Penetanguishene indirectly supervised for the purposes of recreation, socialization or vocation; 3. May travel beyond the communities of Midland/Penetanguishene accompanied by staff or a person approved by the person in charge; 4. Passes for up to 48 hours accompanied by staff or a person approved by the person in charge; and 5. No contact, directly or indirectly, with Lori Scheffel. Administrator’s Recommendation The Administrator supports the clinical team’s opinion and recommends a Hospital Order with the above-mentioned privileges. [51] The recommendation in the report of the administrator of MHCP that Thomas Rea continue his detention at MHCP with listed privileges, was based in part upon the understandable advantage that mental health care providers at MHCP have prior and current involvement in the detainee’s treatment. But his treating psychiatrist, Dr. Jones, acknowledged the obvious merit in the detainee’s transfer to the minimum secure unit at CAMH with equivalent privileges from which the detainee could benefit through interaction with family members who live nearby. [52] When the dust settled at the Board hearing, it was common ground that the least onerous and least restrictive disposition for Thomas Rea was detention in the minimum secure unit at CAMH with privileges to be extended or refused by the person in charge of CAMH. [53] As a result of inquiries made by Board members during questioning of Dr. Jones, it became clear that: i. MHCP recommended that Thomas Rea have the same privileges proposed for CAMH at MHCP while he remained there; and ii. unless the disposition expressly provided for privileges at MHCP while awaiting transfer to CAMH, Thomas Rea would not receive those privileges at MHCP. [54] Dr. Jones did not know when Thomas Rea’s transfer to CAMH was likely to occur. She speculated that the transfer could take “a period of months”. [55] The Board made no inquiries of CAMH about how long it would take before any transfer would be implemented. Nor did the Board ask anyone else to make any inquiries about available space at the minimum secure unit of CAMH. [56] In its disposition and its reasons the Board said nothing about residual or interim detention or privileges while Thomas Rea awaited transfer to CAMH under the disposition. In the result, Thomas Rea, a detainee in the assessment-treatment model introduced by Part XX.1 of the Criminal Code was detained at MHCP for six months without access to privileges that, the principals agreed, were appropriate for him and the Board knew would not be extended in the absence of expressed terms. The Positions of the Parties [57] Counsel for MHCP and CAMH occupy common ground. They say that the failure of the Board to include in its disposition and consider in its reasons provision for interim or residual custody and discretionary privileges at MHCP while awaiting transfer to CAMH was at once unreasonable and wrong in law. [58] Counsel for MHCP and CAMH argued that the evidence before the Board clearly indicated the appropriateness of a disposition of detention in a minimum secure unit with various privileges to be determined by the person in charge. The Board had a duty to obtain reliable information about the length of time that would likely pass before transfer to CAMH. The Board failed in its duty. In light of the uncertainty about time of transfer, the Board was under a duty, in the circumstances of this case, to make provision for interim or residual custody and discretionary privileges at MHCP. Counsel argued that the failure to do so was unreasonable, and constituted legal error because it resulted in a disposition that was not the least onerous and least restrictive to the detainee. [59] Counsel for the Attorney General took a contrary position. She argued the failure to include the provisions of which the appellant complains was neither unreasonable nor legally wrong. [60] Counsel for the Attorney General submitted that the record did not support any reasonable inference of a significant delay between the time of disposition and that of the expected transfer to CAMH. Resource decisions made by hospitals cannot colour discretionary decisions of the Board as erroneous or unreasonable. The Board exercised its discretion to not include interim or residual custody and privilege terms, and its decision in that respect is entitled to difference. The Governing Principles [61] To determine the issue raised by the appellant, it is helpful to recall some basic principles about the nature of Review Board proceedings and the obligations of the Board in making dispositions under s. 672.54 of the Criminal Code, as well as the standard this court is to apply in its review of those dispositions. [62] Part XX.1 of the Criminal Code departs from the traditional adversarial model of the criminal justice process. The system is inquisitorial. The Board has a duty to review all the relevant evidence and if the parties before the Board do not present sufficient information, it falls to the Board to seek out the evidence it requires to make its decision: Winko at paras. 54-55 and 61-62. [63] In making a disposition, the Board must take into account the factors listed in s. 672.54 and make the disposition that is the least onerous and least restrictive to the mental disorder detainee. The least onerous and least restrictive standard applies to both the disposition and any conditions included in it: Winko at para. 62; Pinet v. St. Thomas Psychiatric Hospital, [2004] 1 S.C.R. 528, at para. 21; and Penetanguishene Mental Health Centre v. Ontario (Attorney General), [2004] 1 S.C.R. 498, at paras. 3 and 71. [64] The dispositive authority of this court on an appeal from a disposition made by the Board under s. 672.54 resides in s. 672.78 of the Criminal Code. A disposition may be set aside if it is unreasonable or cannot be supported by the evidence or is based on a wrong decision on a question of law: Criminal Code, ss. 672.78(1)(a) and (b). Errors of law may be subject to the application of the curative proviso in s. 672.78(2)(b). [65] The standard of reasonableness erected by s. 672.78(1)(a) involves respectful attention, though not submission to the Board’s reasons. An unreasonable decision is a decision that “is not supported by any reason that can stand up to a somewhat probing examination”: Starson v. Swayze, [2003] 1 S.C.R. 722, at para. 88; R. v. Owen, [2003] 1 S.C.R. 779, at paras. 33 and 34. A decision by the Board that could reasonably be the subject of disagreement among Board members properly informed of the facts and instructed on the governing legal principles should not generally attract appellate intrusion: Owen at para. 33. [66] The appropriate standard of review applicable to claims of legal error is correctness: Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), [2006] 1 S.C.R. 326, at para. 16. The Principles Applied [67] It is common ground that the Board’s decision to impose a disposition that included detention in a minimum secure unit of a hospital with defined privileges to be extended or refused according to the discretion of the person in charge of the hospital was an appropriate disposition in this case. [68] The complicating factors here were that: i. Thomas Rea sought a transfer from MHCP to CAMH; ii. The Board made no effort to acquire accurate information about when the transfer could take place; iii. The Board was aware that without express terms providing for interim or residual custody and discretionary privileges at MHCP, Thomas Rea would receive no privileges; and iv. The clinical team at MHCP agreed that the discretionary privileges were appropriate for Thomas Rea and MHCP. [69] In the circumstances of this case, especially those listed in para. 68, the failure of the Board to obtain concrete information about the delay in transfer and include express terms relating to interim custody and discretionary privileges was unreasonable. The disposition made was not the least onerous and least restrictive to the detainee and was thus legally wrong, because it meant that during an inevitable detention at MHCP of uncertain duration while awaiting transfer, the detainee would be disentitled to apply for privileges for which the Board itself determined he should be eligible. An interim order of this kind would have the added, and not insignificant advantage of providing express lawful authority for the host hospital to hold the detainee pending transfer. CONCLUSION [70] In my view, the failure of the Board to include in its disposition and consider in its reasons the interim or residual custody of the detainee and availability of privileges for him at MHCP was at once unreasonable and legally wrong. The Board has the authority to include terms in its dispositions providing for interim or residual custody and privileges pending transfer of the detainee to another hospital, and should exercise that authority in appropriate cases such as this. Accordingly, I would allow the appeal. Because Thomas Rea has finally been transferred to CAMH, in accordance with the Board’s disposition, the central issue in this appeal is moot. Despite its success here, no practical remedy is available for MHCP. [71] For these reasons, I would allow the appeal. RELEASED: March 16, 2010 “RPA” “David Watt J.A.” “I agree Robert P. Armstrong J.A.” “I agree Russell G. Juriansz J.A.”