JH v Alberta Health Services, 2017 ABQB 477

Court of Queen’s Bench of Alberta Citation: JH v Alberta Health Services, 2017 ABQB 477 Date: 20170728 Docket: 1501 03347 Registry: Calgary Between: J.H. Applicant - and - Alberta Health Services Respondent - and - Minister of Justice and Solicitor General and Calgary Legal Guidance Interveners Restriction on Publication Identification Ban – See the Public Health Act , section 53(1). No one may publish or disclose information from a record created under the Public Health Act , that a person has or had a communicable disease, in a way that is detrimental to that person's interest, reputation or privacy.

NOTE: This judgment is intended to comply with the restriction so that it may be published.

_______________________________________________________ Oral Judgment Re Mootness Question of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ Background [ 1 ] JH was detained in hospital against his will under the Mental Health Act , RSA 2000, c M-13 (the “ Act ”) for several months. He had arrived in the emergency ward on September 14, 2015 and was ultimately certified as a formal patient. JH appealed the decision of the Mental Health Review Panel rendered on March 17, 2015 which was an automatic review of his certificates at the six-month mark.

JH challenged his certification as an involuntary patient under the Act and claimed breaches of his Charter rights in an Originating Application-Notice of Appeal filed March 30, 2015. [ 2 ] In his originating Application/Notice of Appeal, the remedies sought at para 15 are as follows: (

a) Order an immediate stay of involuntary and/or forcible treatment pending the rehearing on the merits of the Applicant’s appeal; (

b) Cancel the renewal admission certificate upheld by the Panel on March 17, 2015, which effectively continued the Applicant’s long- term detention as a “formal patient” at the Foothills hospital. (

c) Declare that the Alberta Health Services, through the Foothills Hospital has breached the Applicant’s rights under sections 7 , 8 , 9 and 10 of the Canadian Charter of Rights and Freedoms ; (

d) Declare that the MHA is unconstitutional when it applies to a patient who has been detained for more than six months because the MHA lacks an appropriate review procedure at the Panel level that would ensure that the liberty of a long term patient is restricted as minimally as possible and lacks the procedural safeguards to ensure the least restrictions to a patient’s liberty ; (

e) Rescind the decision of the review Panel committing the Applicant to a life of continuous detention, by being “warehoused” as a “formal patient” under the MHA; (

f) Grant any and all remedies under Section 24(1) of the Canadian Charter of Rights and Freedoms , including without limitation, the immediate discharge from the psychiatric facility at Foothills Hospital or in the alternative, ordering a new clinical, mental, cognitive and risk assessment conducted by an independent psychiatrist and physician experienced with the aboriginal cultures and languages, to determine whether the Applicant suffers from a “mental disorder” under the MHA and if he does, why a community treatment order would not be appropriate in the Applicant’s case; (

g) grant a remedy under section 52(1) of the Constitution Act , 1982 by declaring that the provisions of the MHA that are violating the Applicant’s Charter rights without granting him with procedural fairness are of no force and effect or in the alternative, severing those provisions of the MHA that permit the Applicant to be continuously detained in a psychiatric facility for more than six months ; (

h) award the costs of this application to the Applicant; and (

i) grant such further and other relief as this Honourable Court may deem just and appropriate to all the circumstances. [ 3 ] Constitutional notices were sent to the Minister of Justice and Solicitor General of Alberta (“Alberta”) and to the Attorney General of Canada on March 30, 2015. An Order for an oral hearing was granted on May 1, 2015 (and amended on May 11, 2015) which set out the evidence to be led on the certification appeal and constitutional issues.

Alberta was allowed as an intervenor and allowed to file a brief by May 4, 2015. [ 4 ] At the May 13 and 14, 2015 hearing Alberta sought an adjournment of the constitutional issues. [ 5 ] The following is the exchange that occurred between the Court, Counsel for Alberta, Ms. Riczu and for the Applicant on May 13, 2015 (at pages 102-103 of transcripts): Ms. Riczu: In the brief I indicated that I was filing it on the issue raised in the constitutional notice but that I required further time to address the other issues and then to have argument down the road sometime. Ms.

Janmohamed: And, My Lady, I will be fine with that. My only concern is with respect to time. J.H. has been in hospital for nine

months now, and so if the Court finds that it needs the constitutional arguments to be heard before J.H. can be released, then I want this to be heard, you know, we will have to give the Justice Minister 14 days and so we have 14 days in order to - - we can’t hear this for the next 14 days with the exception that if my friend is filing a brief, then I might want an opportunity to respond to that as well. But the concern I have is, you know, J.H.’s liberty has been curtailed for nine months now.

He has no in and out privileges from hospital other than when he is escorted and he has only been escorted to come to Court, and prior to that, to go with Ms. Zayas to go get his I.D. So I’m concerned about, you know, how long he is going to remain in hospital. If the Court decides that in order for the Court to make the decision, it needs to hear the constitutional arguments, but if the Court decides that, you know, the two issues can be separate then I’m fine with that.

And the other then issue would then be the issue of whether the constitutional argument is a moot point if J.H. is released and we would - - we would make submissions with respect to the issue of mootness then. The Court: All right Ms. Riczu: I believe that you can make a decision following this hearing as to whether or not it is appropriate to release J.N. Then the issue becomes, as my friend indicated, there would no longer be a live issue before the Court and so the issue of mootness arises.

But under Borowski the Court has discretion as to whether or not, notwithstanding there is no live issue, they will want to deal with the constitutional argument. If the same judge is seized with both the constitutional and this, I have no problem because then there, if you did decide that you needed – or wanted to hear the constitutional argument, there is still that full factual basis before the Court. The Court: I see. Ms.

Riczu: And on the issue of whether or not you should hear it, if you release J.H. and then you decide that you possibly may want to hear the constitutional argument notwithstanding, then on that issue we’re not actively opposing Ms. Janmohamed’s application. [ 6 ] I allowed the adjournment application on the constitutional issues and proceeded to the hear evidence. For the reasons set out in JH v Alberta Health Services , 2015 ABQB 316 I found that the Applicant did not satisfy the criteria under the Act to be detained and cancelled the certificates detaining him.

As a result, J.H. is no longer a formal patient under the Act . [ 7 ] When the matter was being scheduled for the argument on the constitutional arguments Alberta changed its position at the adjournment application and brought a new application (on May 4, 2017) seeking to have the constitutional challenge dismissed on the basis that it was moot. [ 8 ] Calgary Legal Guidance thereafter sought intervenor status on the basis that it represents many people in JH’s position and argued that it was in the public interest for it to make representations at the constitutional hearing.

I allowed their intervention over the objections of AHS and Alberta after a hearing. [ 9 ] J.H brought a cross application on May 11, 2017 asking that, amongst other things, Alberta’s application be dismissed. [ 10 ] The issue on this application then is whether the constitutional argument should be heard or dismissed on the basis that it is moot. Positions of the Parties [ 11 ] Alberta notes that JH is no longer detained as a formal patient under the Act and submits that any constitutional challenge is therefore moot.

It submits that the Applicant has not demonstrated that there are any exceptional factors which militate in favour of the Court departing from its usual practice of refusing to hear moot matters and exercising its discretion to hear the matter despite it being moot. Alberta argues that JH has not provided any evidence of collateral consequences of the outcome of this matter, which could establish the necessary adversarial context.

Alberta argues that there are no other proceedings involving the parties to this litigation which could be collaterally affected by a decision in this matter, that there is no evidence that JH has had any further contact with the mental health system or that he is likely to become a formal patient in the future. [ 12 ] Alberta submits that the circumstances in this case do not make it worthwhile to apply scarce judicial resources considering that the decision will not have any practical effect on the rights of the parties, the issue is not evasive of review, and the public interest does not require a decision of this Court. [ 13 ] Alberta also argues that if this Court decides the issue of constitutional validity of the Act , it will be intruding into the role of the legislative branch.

Alberta argues that pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch and it should decline to hear the matter in this case. Alberta adds that the fact that deciding the issue may be helpful is not sufficient reason alone to warrant deciding a Charter issue. [ 14 ] AHS adopts the submissions of Alberta with respect to mootness. [ 15 ] JH submits that the case is not moot.

He brought a cross-application on May 11, 2017 claiming that Alberta is estopped now from bringing this application in light of its concession at the adjournment application. He notes that written arguments were already filed and the only arguments outstanding are the oral arguments so that it would be a waste of judicial resources to dismiss this hearing now. [ 16 ] JH outlined that he will argue that any law that permits detention in psychiatric facilities must conform to the principles of fundamental justice pursuant to

section 7 of the Charter and that violations of

section 9 Charter rights must also conform to the principles of fundamental justice. JH submits that the impugned statutory scheme violates the principle of fundamental justice in its application to patients detained for more than six months on the basis that it is overbroad and can result in overly restrictive, prolonged

and indefinite detention. There is a broad public interest to have this matter heard. [17] Calgary Legal Guidance (“CLG”), intervenor, also submits that the matter is not moot considering that the JH’s freedom toaccess a hospital remains fraught as he could easily be at risk of being detained and treated involuntarily under the Act once again.

CLGsubmits that deciding the constitutional issues raised by the Applicant will consequently have a practical effect on his current rights, assuch this case should not be considered moot. [18] CLG alternatively argues that if the Court concludes that the issues raised are moot, it should exercises its discretion todetermine those issues. The issue is one of public interest since CLG sees these types of cases frequently, and because of the nature ofthe applications, the court rarely has time to deal with the constitutional issues raised.

Analysis [19] The two-step analysis to determine mootness was stated in Borowski v Canada (AG), (SCC), [1989] 1 SCR342. The Court must first consider whether a live controversy exists between the parties or whether it has become academic. If the Courtconcludes that there is no longer a live issue, the Court has discretion to proceed to hear the matter in any event in certain circumstances.In Borowski, Sopinka J., writing for the Court, stated at 353, 354 and 363: [...] First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have becomeacademic.

Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion tohear the case. [...] The first stage in the analysis requires a consideration of whether there remains a live controversy. The controversy may disappearrendering an issue moot due to a variety of reasons [...] In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia forenforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process.

The principles identified abovemay not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, andvice versa. [20] Thus, a Court’s exercise of discretion will be informed by the existence or absence of the following three rationales assummarized at para 16 in Alberta Teachers’ Assn. v Buffalo Trail Public Schools Regional Division no. 28, 2014 ABCA 432 are asfollows: (

i) whether there remains an adversarial context which “helps guarantee that issues are well and fully argued by parties whohave a stake in the outcome”; (ii) the need for judicial economy; and (iii) the court’s proper adjudicative, not law making, function, to avoid intruding into legislative work. [21] The burden is on the party applying to have the matter still heard to establish why the Court should hear the matter: TamilCo-operative Homes Inc. v Arulappah, (ON CA), 49 OR (3d) 566 (CA) at para 17. Decision [22] In this case, I agree there is no live controversy. JH has been released pursuant to my decision.

There is a remote possibilitythat he will get tied up in the mental health system again considering his circumstances, however, unlike some similar cases, like AAR vAlberta Hospital (Edmonton), 1999 ABQB 573, JH is not a repeat visitor to the psychiatric wards of this province and does not have ahistory of mental illness.

Nonetheless, considering the facts in JH, I am of the opinion that I should exercise my discretion to determinethe constitutional issues for the following reasons. [23] Generally, considering the temporary nature of most certificates and their short duration, a live controversy is not likely to bea common occurrence. AHS’ counsel indeed indicated that most of the time when parties challenge their certificates, for time efficiency,the constitutional challenges, if any are set aside and then not pursued if they are released.

Calgary Legal Guidance also confirmed thatthis was their experience. [24] The evidence shows that between April 1 2015 and March 31 2016, the review panels upheld 688 certificates in 2015, therewere 326 patients detained under mental health certificates for more than six months and the average length of stay of such long termpatients was 476 days: Affidavit of Michelle Craig, filed December 20, 2016 at para 5; Affidavit of Malintha Wijenaike filed January17, 2017, Statistical Report, Tab E at 3-5 [25] In this case, JH was detained and treated over a long period of time, and this Court found that he was not suffering from amental disorder at the May hearing, several months after the start of his involuntary detention.

It certainly raises the question of theelusiveness of the process. The appeal process under the Act and the time constraints faced by patients to challenge their detention, leadsme to conclude that many patients would be unable to bring disputes before this Court in a timely manner.

See also Neto v Klekach[2004] OJ 394 and Mental Health Centre Penetaguishene v Ontario 2010 ONCA 197 where similar considerations were discussed. [26] The issue as to whether the process under the Act does not include appropriate safeguards and whether the Act and theprocess under it breaches the Charter have never been determined by this Court and the parties will argue on both sides: see for exampleThompson v Ontario (AG), 2011 ONSC 2023. The parties have already submitted written briefs and oral submissions were adjourned.

Although, AHS and Alberta do not wish to proceed, Alberta and CLG are intervenors, JH still wishes to proceed, thus the parties remain in a somewhat adversarial context and there would no benefit to waiting for another case. In this case, not proceeding with this constitutional challenge is in fact a waste of resources. Indeed, the parties already spent resources regarding the constitutional issues considering that written briefs were already filed before the adjournment.

JH is being represented by counsel from Legal Aid Alberta which has approved the continuation of the argument on the Charter issues. [ 27 ] In this case, I agree with JH that important questions are raised and it may go unheard if not determined by this Court. The issues raised here are of public importance and their determination is in the public interest. JH was detained and treated involuntarily for several months after going to the hospital for physical health issues and also had cognitive issues. Of note, the issue before me at the May hearing was whether JH had a mental disorder at the time.

His condition prior to that time remains to be determined. Considering that JH had no mental disorder at the time of the hearing and that he had been involuntarily detained for several months it is in the public interest to determine whether the safeguards are in place to ensure that long involuntary detention under the Act are justified and done in accordance with the Charter .

This case, which already has a significant evidentiary base before it, provides a rare meaningful opportunity to conduct a constitutional review of the Act . [ 28 ] The Court in this case is not asked to make new law, but rather is required to ensure that the Act is properly implemented and that rights of mental health patients who can be vulnerable are not disregarded: see R(AA) at para 28. [ 29 ] In light of the above, this Court will hear the constitutional challenge of the Act . [ 30 ] The general Charter issues in this case will be whether detention and review provisions under the Act infringe sections 7 and 9 of the Charter .

If so are the violation justified under

section 1 of the Charter . [ 31 ] More specifically, JH submits that the statutory scheme set out in sections 2 , 4(1) , 4(2) , 7(1) , 8(1) , 8(3) , 38(1) and 41(1) of the Act is inconsistent with

section 7 of the Charte r because it permits the state to deprive persons of their liberty by involuntarily detaining them in a psychiatric facility, and that this scheme deprives the liberty interest of involuntary patients to a greater extent than one from Ontario that was found to violate

section 7 of the Charter in the case of long term detainee: P.S. v Ontario, 2014 ONCA 900 . For instance, JH claims in his brief that he “faces the risk of being arbitrarily transferred to a secure 24-hour ‘supportive environment’, without any rights to appeal such a transfer and without any independent assessment ever being conducted to determine whether the proposed transfer is justified or even legal under the MHA.” [ 32 ] JH argues that the scheme also arbitrarily detains a patient indefinitely thereby infringing the patient’s

section 9 Charter rights. Procedural issues are also to be reviewed in light of

section 10 Charter rights. [ 33 ] Finally, with respect to the estoppel argument, I do agree that Alberta’s position at the original hearing, upon which I relied in allowing the adjournment of the constitutional arguments, is one that cannot be changed arbitrarily as Alberta has done so. I understand its wanting to bring these issues to the Court’s attention, but it should not have then represented that it would not do so earlier. I reject its application on its merits however, and not solely on the estoppel argument.

Conclusion [ 34 ] AHS and the Intervernor Alberta’s Application arguing dismissal of the constitutional challenge on the basis of mootness is dismissed. J.H.’s cross-application is allowed. Heard on the 19 th day of May, 2017. Dated at Calgary Alberta this 28 th day of July, 2017. K.M. Eidsvik J.C.Q.B.A. Appearances: Salimah. Janmohamed, SFJ Law, Barristers and Solicitors for the Applicant Ivan Bernardo, Miller Thomson LLP for Alberta Health Services

Lilian Riczu, Alberta Justice Legal Services Division for the Minister of Justice and Solicitor General of Alberta Gabriel Chen for Calgary Legal Guidance