(on appeal from the Court of Appeal for Ontario) BETWEEN: BRIAN CONCEPTION

61 Pages·2012·2.52 MB·English

Court File No. 34930
IN THE SUPREME COURT OF CANADA
(on appeal from the Court of Appeal for Ontario)
BETWEEN:
BRIAN CONCEPTION
Appellant (Respondent)
-and·
HER MAJESTY THE QUEEN
Respondent (Respondent)
and
THE PERSONS IN CHARGE OF THE CENTRE FOR
ADDICTION AND MENTAL HEALTH and
THE MENTAL HEALTH CENTRE
PENETANGUISHENE
Respondents (Appellants)
and
ATTORNEYGENERALFORCANADA
Intervener
and
PROCUREUR GENERAL DU QUEBEC
Intervener
APPELLANT'S FACTUM
FRANK ADDARIO RAIJA PULKINNEN
Addario Law Group Sack Goldblatt Mitchell LLP
171 John Street Ste. 500 -30 Metcalfe Street
Toronto, Ontario M5T 1X3 Ottawa, Ontario K1P 5L4
Tel.: [phone] Tel.: [phone]
Fax: [phone] Fax: [phone]
[email protected] K1P 5L4
PAUL BURSTEIN
Burstein Bryant Barristers Ottawa Agent for Appellant
51h Floor -6 Adelaide Street East
Toronto, Ontario MSC 1H6
Tel. [phone]
Fax: [phone]
pburstein@bursteinbryantcom
Counsel for the Appellant
PAUL BURSTEIN and FR.Al~K ADD ARlO RAIJA PULKINNEN
Paul Burstein Sack Goldblatt Mitchell LLP
Burstein Bryant Barristers 30 Metcalfe Street, Suite 500
6 Adelaide Street East, 5th Floor Ottawa, Ontario KIP 5L4
Toronto, Ontario MSC IH6 Tel: [phone]
Tel: [phone] Fax: [phone]
Fax: [phone] Email: :r:pulkki:nen@sgrnlaw .com
Email: [email protected]
Frank Addario Ottawa Agents for the Appellant,
Addario Law Group Brian Conception
171 John Street, Suite 101
Toronto, Ontario M5T 1X3
Tel: [phone]
Fax: [phone]
Email: gg~]Q(;~~m~
Counsel for the Appellant, Brian Conception
RIUN SHAL~DLER and GRACE CHOI ROBERT E. HOUSTON, Q.C.
)vfinistry of the Attorney General (Ontario) Burke -Robertson LLP
Crown Law Office - Criminal 441 MacLaren Street, Suite 200
720 Bay Street, lOth Floor Ottawa, On K2P 2H3
Toronto, Ontario M7 A 2S9 Tel: [phone]
Tel: [phone] Fax: [phone]
Fax: [phone] Email: [email protected]
Email: rilm.shandler(Zi''.ontario.ca
£[email protected]
Counsel for the Respondent, Ottawa Agents for the Respondent,
Her Majesty the Queen Her :Y1aj esty the Queen
JAL'VIES P. THOMS0::.\1 lVIARIE- IHAJOR
FR.Al~CE
Bersenas Jacobsen Chouest Thomson Supreme Advocacy LLP
Blackburn LLP 397 Gladstone Avenue, Suite 100
33 Yonge Street, Suite 201 Ottawa, Ontario K2P OY9
Toronto, Ontario M5E 1G4 Tet 613-695-8855
Tel: [phone] Fax: [phone]
416-982-3801 Email: [email protected]
Email: @;;m}_~ifill~~~&QlQl
Ottawa Agents for the Respondents,
Counsel for the Respondents, The Person In Charge The Person In Charge of the Centre for
of the Centre for Addiction and Mental Health and Addiction and Mental Health and The Person
The Person In Charge of the Mental Health Centre In Charge of the Mental Health Centre
Penetanguishene P enetanguishene
RICHARD KRAl'VI:ER and GTh'ETTE GOBEIL ROBERT J. FRATER
Department of Justice, Ontario Regional Office Senior General Counsel
130 King Street West, Suite 3400 Department of Justice, Criminal Law Section
Toronto, Ontario M5X 1K6 Attorney General of Canada
Tel: [phone] Wellington Street, Room 1161
Fax: [phone] Ottawa, Ontario KIA OH8
Email: rk:ramer(@.justice.gc.ca Tel: [phone]
ginette. ~wbeil@oosc-sunc. gc.ca Fax: [phone]
Email: rfrater('@.iustice.gc.ca
Ottawa Agents for the Intervener, the
Counsel for the Intervener,
The Attorney General of Canada Attorney General of Canada
CAROLil\TE RENAlJ'TI and DOl\Hi'{IQDE PIERRE LAL~DRY
A. JOBIN Noel et Associes
Direction generale des affjur.et legis 111, rue Champlain
1200 route de l'Eglise, 2e etage Gatineau, Quebec J8X 3Rl
Quebec, QC Gl V 4Ml Tel: [phone]
Tel· 418-643-1477 ext.20780 Fax: [phone]
Fax : [phone] Email : [email protected]
Email : caroline.renaud(ci),justice.gouv.qc.ca
dominique-a. j o bin@justi ce. gouv. q c. ca
Ottawa Agents for the Intervener,
Counsel for the Intervener, theAttomey General of Quebec
the Attorney General of Quebec
Court File No. 34930
IN THE SUPREME COURT OF CANADA
(on appeal from the Court of Appeal for Ontario)
BETWEEN:
BRIAN CONCEPTION
Appellant (Respondent)
~and~
HER MAJESTY THE QUEEN
Respondent (Respondent)
and
THE PERSONS IN CHARGE OF THE CENTRE FOR
ADDICTION AND MENTAL HEALTH and
THE MENTAL HEALTH CENTRE
PENETANGUISHENE
Respondents (Appellants)
and
ATTORNEYGENERALFORCANADA
Intervener
and
PROCUREUR GENERAL DU QUEBEC
Intervener
APPELLANT'S FACTUM
INDEX
PART I: STATEMENT OF THE FACTS 1
1) Overview 1
2) Procedural history of this case 2
3) The Criminal Code regime governing the hospitalization of UST accused 4
4) A brief legislative history of UST treatment orders under Part XX.1 of
the Code 5
-ii-
INDEX (cont'd)
5) Jails are an unacceptable waiting area for UST accused in acute need
of treatment 7
6) Ontario's inadequate response to the chronic forensic bed shortage 10
7) Jails are not adequate substitutes for hospitals in administering the
forcible treatment of UST accused 12
8) The deleterious effects of delays in treating the unfit mentally ill accused 13
9) The lack of standard criteria governing forensic bed allocations 15
10) Judicial efforts to superintend delays in implementing
transfer-to-hospital orders 17
PART II: POINTS IN ISSUE 25
(i) Did the Court of Appeal err in holding that the "consent" required
of a hospital by s. 6 72.62 of the Code relates to the timing of the s. 6 72.58
order and not just to the treatment concerns identified by s. 672.59? 25
(ii) In the alternative, does requiring a hospital's "consent" for the issuance
of a s. 6 72.58 order violate s. 7 of the Charter? 25
PART III: ARGUMENT 26
I. Introduction -mootness and sequencing of issues 26
II. The "consent" requirement of s. 672.62 was satisfied in this case 26
1) Section 672.62 requires only that the treatment-provider endorse the
appropriateness and effectiveness ofthe proposed treatment 26
2) While there was evidence of the Hospitals' consent, there was no
evidence to support delaying the commencement of the s. 672.58
disposition 28
III. The "consent" requirement ins. 672.62(1)(a) violates s. 7 ofthe Charter 31
1) Introduction 31
-iii-
INDEX (cont'd)
2) Provincial jurisdiction over "health" does not insulates. 672.62(1)(a)
from Charter review nor does it support a broad interpretation of the
"consent" requirement 31
3) Section 672.62 does not accord with the principles of fundamental justice 34
(a) Unconstitutional delegation oft he decision to issue as. 672.58
treatment order 34
(b) The hospitals' decision-making power is arbitrary and vague 35
4) Section 1 of the Charter cannot justify the violation created by
s. 672.62's vague "consent" requirement and/or the lack of procedural
fairness 37
5) Constitutional Remedy 39
PART IV: SUBMISSIONS CONCERNING COSTS 40
PART V: ORDER REQUESTED 40
PART VI: AUTHORITIES TO BE CITED 41
PART VII: RELEVANT LEGISLATIVE PROVISIONS 43
APPELLANT'S FACTUM Page 1 Part I -Statement of Facts
Court File No. 34930
IN THE SUPREME COURT OF CANADA
(on appeal from the Court of Appeal for Ontario)
BETWEEN:
BRIAN CONCEPTION
Appellant (Respondent)
-and-
HER MAJESTY THE QUEEN
10 Respondent (Respondent)
and
THE PERSONS IN CHARGE OF THE CENTRE FOR
ADDICTION AND MENTAL HEALTH and
THE MENTAL HEALTH CENTRE
PENETANGUISHENE
Respondents (Appellants)
and
ATTORNEYGENERALFORCANADA
Intervener
20 and
PROCUREUR GENERAL DU QUEBEC
Intervener
APPELLANT'S FACTUM
PART I: STATEMENT OF THE FACTS
1) Overview
1. This case concerns the treatment of mentally disordered Canadians caught up in the
criminal justice system. Unfit accused in need of treatment are typically remanded to wait in
an Ontario jail if a forensic bed is not available. Because of government business decisions, the
supply of forensic hospital beds has not kept pace with the demand for them. However,
30 Ontario jails are not equipped to handle the special needs of this acutely ill population of
APPELLANT'S FACTUM Page2 Part I -Statement of Facts
inmates. Mentally ill persons in Ontario jails have been the victims of homicide and suicide
while awaiting access to forensic mental health services.
2. This appeal is the Court's first opportunity to address the proper interpretation of the
Code provisions relating to treatment orders and the constitutional implications of limiting
judicial supervision of that process. The narrow legal question on appeal is whether the
provincial court has jurisdiction to supervise the delays in giving restorative treatment to
those mentally disordered accused who have been found unfit to stand trial ("UST") and who
must remain in custody until they can be returned to a state of fitness and continue with the
criminal process. Should the court be allowed to supervise the decision by hospital
10 administrators concerning if and when a UST accused should be treated to restore fitness? The
Appellant submits the answer is yes. The Court of Appeal disagreed.
2) Procedural history of this case
3. The Appellant was arrested for a charge of sexual assault on April12, 2010. On April
13, 2010, he was taken to a specially designated mental health court ("102 Court") at the
Ontario Court ofJustice in downtown Toronto. The Crown successfully applied to the presiding
judge, Justice Mary Hogan, to have the Appellant found UST. The Crown then brought an
application for an order under s. 672.58 authorizing up to 60 days of a specified psychiatric
treatment aimed at restoring the Appellant's fitness. After hearing from Dr. Waisman 1 that the
statutory criteria had been met, Hogan J. granted the application.
20 4. Despite having consented to administer the treatment ordered by Hogan J., CAMH
indicated that ie could not accept the Appellant for at least 6 days. Acting on the evidence
1 A provincially-licenced psychiatrist employed by the Centre for Addiction and Mental Health
("CAMH").
2 As the evidence made clear, CAMH was speaking on behalf of both itself and the
Penetanguishine Mental Health Centre ("PMHC").
APPELLANT'S FACTUM Page3 Part I -Statement of Facts
adduced at the hearing, Hogan J. issued the treatment order and directed that the Appellant
be taken "forthwith" to a mental hospital- "CAMH or its designate3
".
-Reasons for judgment of Court ofA ppeal, Appellant's Record. Vol. 1. at p. 95 (paras. 2 and 3);
-Transcript of Proceedings before Hogan]., Appellant's Record. Vol. 1. at pp. 132-138
5. CAMH and PMHC immediately launched an appeal against the treatment order to the
Court of Appeal for Ontario pursuantto s. 672.72 of the Code. Under s. 672.75 of the Code, the
filing of the appeal automatically suspended the operation of the s. 672.58 order. However,
the Hospitals applied to Lang J.A.4 three days later for an order allowing them to treat the
Appellant immediately. The application was granted. After the treatment set out in Hogan J. ' s
10 order, the Appellant was made fit and the charge against him was stayed in June, 2011.
-Notice ofA ppeal to Court ofA ppeal for Ontario, Appellant's Record. Vol. 1, at pp. 55-58;
-Notice ofA pplication to Court ofA ppeal for Ontario, Appellant's Record. Vol. 1. at pp. 59-65;
-Endorsement of Lang ].A., Appellant's Record. Vol. 1. at pp. 66-67
6. Although the lis involving the Appellant was moot, the Court of Appeal heard the
Hospitals' appeal of Hogan J.'s order on December 14, 2011. The Court of Appeal was
presented with a brief of the legislative history of Part XX.1 's treatment order regime, a brief
of some recent government reports and academic writings, and a collection of fresh evidence
materials from a variety of experts5 On May 24, 2012, the Court allowed the appeal and set
•
aside the order.
20 -Reasons for judgment ofC ourt ofA ppeal, Appellant's Record. Vol. 1. at pp. 97 and 98-99 (paras.
9 and 15-16)
7. The Appellant appeals against the decision of the Court of Appeal. The Appellant
submits (1) that there was no basis to interfere with Hogan J.'s determination that the
3The "designate" is a reference to hospitals like PMHC with whom CAMH had established
relationships to pool their supply of forensic beds for the purpose of satisfying Part XX.1 orders.
4Sitting as a single judge under s. 672.76(2)(a) of the Code.
5 As the "legislative facts" were the subject of the paper record introduced for the first time on
appeal, this Court is free to take its own view of that fresh evidence.
APPELLANT'S FACTUM Page4 Part I -Statement of Facts
"consent" requirement ins. 672.62(1)(a) had been met in this case and (2) that if a proper
construction of s. 672.62(1)(a) allows hospitals to decide unilaterally if or when a treatment
order may issue, s. 672.62(1)(a) infringes s. 7 of the Charter.
-Notice ofA ppeal, Appellant's Record. Vol. 1. at pp. 80-83
3) The Criminal Code regime governing the hospitalization of UST accused
8. When a mentally disordered accused has been found UST, the criminal process comes
to a halt until the accused's fitness is restored. Part XX.1 authorizes courts to do one of three
things as a consequence of a UST finding:
(i) Under s. 6 72.45, the court may immediately hold a disposition hearing in which
10 it may make any ofthe dispositions authorized by s. 672.54 ofthe Code.
(ii) Under ss. 6 72.46 and 6 72.4 7, the court may defer the disposition hearing to the
Review Board and may either continue the accused's bail or remand the accused
to the custody of a hospital.
(iii) Under s. 672.58, the court may make a disposition6 that the accused be sent
somewhere to receive up to 60 days of forcible treatment for the purpose of
restoring their fitness.
9. Whichever one of these orders a court chooses to make, a party has a right of appeal to
the provincial court of appeal on any question of law, f(;!,ct or mixed law and fact: s. 672.72.
Accordingly, as a "party'' to as. 672.58 disposition (pursuant to s. 6 72.1), a hospital may appeal
20 against a treatment order and thereby immediately suspend the effect of that order pending
review by an appellate court: s. 672.75.
10. Only a prosecutor may apply for a s. 672.58 treatment order. The treatment
contemplated by such an order may not exceed a period of 60 days: s. 6 72.58. It may not
include psychosurgery or electroconvulsive therapy: s. 672.61. Unlike assessment orders,
there is no provision authorizing an extension of this 60-day period. The order may not be
granted unless the court has heard evidence from "a medical practitioner that a specific
6Pursuant to s. 672.1, "disposition" includes orders under either s. 672.54 or s. 672.58.