2017 NLCA 24, 2017 NLCA 24

Andrew Abbass (appellant) v. The Western Health Care Corporation (first respondent) and Jehanara Talpur (second respondent) (15/37) Indexed As: Abbass v. The Western Health Care Corporation 2017 NLCA 24 1 C.A.N.L.R. 609 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Rowe and White JJ.A. April 13, 2017

Summary: The appellant, Mr. Abbass, was detained at his home by members of the Royal Newfoundland Constabulary, apparently for an assessment under the Mental Health Care and Treatment Act, SNL 2006, c. M-9.1 due to the content of certain tweets issued by Mr. Abbass on Twitter which potentially expressed anger about a recent shooting of an individual by a policeman. He was taken to the psychiatric unit at Western Memorial Hospital operated by the first respondent, the Western Health Care Corporation.

Two physicians, one of whom was the second respondent, completed the necessary paperwork that resulted in his involuntary admission to the hospital. Mr. Abbass challenged his detention by bringing an application for an order of habeas corpus , claiming that his detention was unlawful and his rights under

section 10 of the Canadian Charter of Rights and Freedoms had been violated. The applications judge declined jurisdiction on the grounds that the Mental Health Care and Treatment Act provided for a separate, complete, comprehensive and expert procedure for review of the detention. Mr. Abbass appealed, arguing the judge did not properly decide to decline jurisdiction to deal with the habeas corpus application. Held: Appeal allowed. The Court: Generally speaking, habeas corpus should prima facie be available whenever the legality of a detention is brought into question. Access to it is enshrined in

section 10 (

c) of the Canadian Charter of Rights and Freedoms . There are some limited exceptions to the general rule of availability. One of them is where there is an alternative efficacious procedure available for addressing the applicant’s claims of illegal detention. Whether the procedure under consideration falls within the defined exception is a question of law on which the judge hearing the habeas corpus application must be correct. If the exception applies then the judge has a discretion, but not a duty, to decline to grant the remedy.

That decision is reviewable on the same standard as any other discretionary decision. On the return of the writ of habeas corpus in court following service, the applicant for relief has the burden of proving the existence of the detention but the person or authority that is doing the detaining has the burden of establishing that the deprivation of liberty was lawful. If the court is not satisfied with the legality of the lawfulness of the detention upon a facial review of the documents offered as authority for the detention, it can order the applicant’s discharge forthwith.

However, the court may also look beyond the facial validity of those documents and examine the whole record to determine whether the detention is in fact legal. If the conclusion is that the detention is not justified, the applicant is entitled to an order that he or she be released. The granting of the remedy of release is, unlike the other prerogative remedies, not discretionary. Provincial superior courts should decline habeas corpus jurisdiction only where (1) a statute such as the Criminal Code , R.S.C. 1985, c.

C-46 confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be or (2) the legislator has put in place complete, comprehensive and expert procedure for review of an administrative decision.

The essential question in this appeal is whether the statutory procedures for review of an involuntary patient’s detention under the Mental Health Care and Treatment Act can be characterized as a complete, comprehensive and expert procedure for review of detention. Superior courts must not decline to hear habeas corpus applications merely because another alternative remedy exists and appears to be more convenient. The alternative procedure must be complete, comprehensive and expert in its nature and at least as broad as habeas corpus and no less advantageous .

The five factors to consider in assessing the procedure are: (1) the choice of remedies and forum; (2) the expertise of the superior courts; (3) the timeliness of the remedy; (4) local access to the remedy; and (5) the nature of the remedy and the burden of proof. In this case, the certificates pursuant to the Mental Health Care and Treatment Act which are the authority in themselves to intrude upon the liberty and privacy of an individual primarily contain a recitation of the circumstances under which Mr. Abbass was brought in for assessment.

Aside from asserting, as part of the pre-printed form, that he suffers from a “mental disorder” the certificates make no attempt to identify the mental disorder in question and certainly do not set out any facts upon which the person who has conducted the psychiatric assessment has formed the opinion. It is therefore at least arguable that, as matter of facial validity alone, the admission and detention of Mr. Abbass in the hospital was not lawfully authorized. Mr. Abbass is prima facie entitled to have that issue litigated and determined.

Moreover, the Board review procedure does not allow for the type of fulsome review of legality of detention that would be available in a habeas corpus application. Even if the Board had authority to address the legalities involved , access to habeas corpus involves a much more timely and efficient procedure to address these issues than being required to go through the Board process. The Board process can take weeks. By contrast, when urgent issues regarding liberty of the subject are at stake, the superior courts give priority to habeas corpus applications.

The flexibility and availability of the habeas corpus procedure, when compared to the Board review procedure, also favours the former remedy. When dealing with the question of legality of detention, the superior court has greater expertise than a Board review panel. The panel’s focus is on questions primarily of a medical nature. But the questions of the legality of initial deprivation of liberty, and whether the decision is properly supported by the type and degree of evidence required by law, as well as the formalities of certification, are matters that are quintessentially a judicial function.

Finally, the nature of the remedy required when issues of the sort in this case are raised and the burden of proof are better dealt with on a habeas corpus application. If the justification for detention is not made out, the person detained must be discharged. The proceeding places the focus on where it should be. The proceeding before the Board is more nuanced. It does not engage the question of the initial lawfulness of the detention as argued by counsel for the hospital, nor does it place an obligation on the hospital to prove the lawfulness of that initial detention.

Thus, the trial judge erred in merely stating that there was a “comprehensive scheme” in the Act. Four of the five factors to be considered favour a conclusion that the alternate procedure available under the Mental Health Care and Treatment Act is not “complete, comprehensive and expert” for review of the issues of legality raised by Mr. Abbass. The applications judge should not have declined to exercise his jurisdiction to hear and determine the habeas corpus application. The appeal must be allowed.

The matter was remitted to the Trial Division because it was not appropriate for the Court to make a determination on the merits of the habeas corpus application because the record to enable a proper determination in that regard may have been incomplete. Cases cited: Re Patrick Kent (1817), Tucker’s Select Cases of Newfoundland 1817-1828 , 54 Hutton, McLea & Co. v. Kelly (1818), 1 Nfld. L.R. 105 Clift v. Holdsworth (1819), 1 Nfld. L.R. 167 at 168 Conrad et al v. Driscoll et al (1820), 1 Nfld. L.R. 201 Hunter & Co. v. Hernamen and Howard (1823), 1 Nfld. L.R. 285 Mission Institution v.

Khela , 2014 SCC 24 , [2014] 1 S.C.R. 502 Arsenault v. Eastern Health , 2015 NLTD(G) 126 May v. Ferndale Institution , 2005 SCC 82 , [2005] 3 S.C.R. 809

Capano v. Centre for Addiction and Mental Health, 2010 ONSC 1687 In re Jane New, Dowling, Select Cases, v. 2, Archives Office of NSW, 2/3462, [1829] NSWSupC 11 Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld. C.A.) Peiroo v. Canada (Minister of Employment and Immigration) (1989), (ON CA), 69 O.R. (2d) 253 (C.A.) Hickey v. Kent Institution, 2003 BCCA 23 Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 Counsel: Joan Dawson, for the appellant; Jamie Merrigan Q.C., for the first respondent; Irene Muzychka Q.C., for the second respondent.

This appeal was heard on April 12, 2016 before Green C.J.N.L., Rowe and White JJ.A. The following judgment was delivered on April 13, 2017 by the Court. ______________________________________________________________ Per Curiam: [1] The use of habeas corpus as a remedy for challenging wrongful deprivation of liberty has been alive and well in Newfoundlandand Labrador ever since, in 1817, Chief Justice Forbes issued it, with certiorari in aid, to the gaoler at Ferryland to have a prisonerbrought before him in St.

John’s to inquire into the legality of his imprisonment and sentence: Re Patrick Kent (1817), Tucker’s SelectCases of Newfoundland 1817-1828, 54. [2] In fact the power of the superior court to engage in judicial review of administrative legality has been a part of the inherentjurisdiction of the Newfoundland and Labrador Supreme Court as a means of maintaining the rule of law ever since Forbes C.J. and hissuccessor, Tucker C.J. so declared it in Hutton, McLea & Co. v. Kelly (1818), 1 Nfld. L.R. 105 at 107; Clift v. Holdsworth (1819), 1 Nfld.L.R. 167 at 168; Conrad et al v. Driscoll et al (1820), 1 Nfld.

L.R. 201 at 204; and Hunter & Co. v. Hernamen and Howard (1823), 1Nfld. L.R. 285 at 293-297. [3] The issue engaged in this case is whether habeas corpus, as developed in the modern law in Canada, is available to challenge thelegality of an individual’s detention under the Mental Health Care and Treatment Act, SNL 2006, c. M-9.1 (MHCT Act) in the face of aprovision in the legislation that provides a separate means for a detained person to seek release from his or her detention. [4] On the facts of this case, the appellant, Mr. Abbass, has already been released by different means.

Even though the specific issueis therefore moot, we are of the view that the issue is of such general importance for similar cases in the future that the Court shouldnevertheless hear and determine the appeal. We are mindful of the observations of LeBel J. in Mission Institution v. Khela, 2014 SCC24, [2014] 1 S.C.R. 502: [14] Despite being moot, this appeal merits a decision in the circumstances of this case.

The nature of habeas corpus applicationsinvolving the transfer and segregation of inmates is such that the factual circumstances of a given application can change quickly, beforean appellate court can review the application judge’s decision. This means that such cases will often be moot before making it to theappellate level, and therefore “capable of repetition, yet evasive of review” (Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342 at p. 364)… [5] The same could be said about this case. See also Arsenault v. Eastern Health, 2015 NLTD(G) 126.

Background [6] On April 7, 2015, members of the Royal Newfoundland Constabulary attended at Mr. Abbass’s home and detained him for anassessment under the MHCT Act. The motivation was concern over the content of certain tweets issued by Mr. Abbass on Twitter whichpotentially expressed anger relating to a recent shooting of an individual by a policeman. He was taken to the psychiatric unit at Western Memorial Hospital operated by the first respondent in Corner Brook.

There, two physicians, one of whom was the second respondent[1],completed the necessary paperwork that resulted in his involuntary admission to the hospital. [7] Mr. Abbass challenged his detention by bringing an application for an order of habeas corpus, claiming that (

i) he was not

suffering from any mental disorder; (ii) the certificate of involuntary admission did not cite any grounds for his detention; (iii) hisdetention was therefore unlawful and not in compliance with the MHCT Act; and (iv) his rights under

section 10 of the Canadian Charterof Rights and Freedoms had been violated. [8] On the return of the application and Mr. Abbass’s appearance in Court, counsel for the hospital raised a preliminary question “asto whether this is an appropriate matter to proceed by way of habeas corpus because there is a clearly outlined appeal mechanismavailable [under the MHCT Act].” Counsel for Mr. Abbass took the position that he was illegally detained without any mental healthdiagnosis and that, accordingly, any alternative review procedures contained in the MHCT Act would have no application.

Suchprocedures, counsel argued would only have application once a person was properly detained under the Act. Furthermore, it wassubmitted that the urgency of determining the legality of the initial detention, as opposed to conducting a review of whether he shouldcontinue to be detained justified resort to habeas corpus. The Decision [9] The judge accepted the hospital’s submissions, declared that he would exercise his discretion to decline[2] jurisdiction, anddismissed the application. The judge referred to and relied on the Supreme Court of Canada decision in May v.

Ferndale Institution, 2005SCC 82, [2005] 3 S.C.R. 809, as well as the Ontario Superior Court decision in Capano v. Centre for Addiction and Mental Health, 2010ONSC 1687, for the proposition that a court hearing a habeas corpus application should decline jurisdiction where the legislature has putin place a separate “complete, comprehensive and expert” procedure for review of the detention.

The judge referred to the legislationthat was under consideration in the Capano decision (which led the Court in that case to decline jurisdiction) and concluded: I find that those attributes of … the Ontario legislation [are] quite similar to what is contained in our legislation. So it is … my findingthat … as there is a comprehensive scheme in the [MFCT Act] providing for broad rights of review and appeal, I feel I am bound by thedecision of the Supreme Court of Canada, and I must dismiss the application for habeas corpus.

Therefore, the applicant must … bereturned to the medical facility in accordance with the [MHCT Act]. Issues and Standard of Review [10] The issues on appeal concern whether the judge properly decided to decline jurisdiction to deal with the habeas corpusapplication. [11] Generally speaking, habeas corpus should prima facie be available whenever the legality of a detention is brought into question.Access to it is enshrined in

section 10(

c) of the Canadian Charter of Rights and Freedoms.

Blackstone described it as “the great andefficacious writ in all manner of illegal confinement” (Blackstone, Commentaries of the Laws of England (Oxford: Clarendon Press,1768),Vol. 3, p. 131; emphasis added) and Newfoundland’s seventh chief justice, Sir Francis Forbes, writing in 1829 when subsequentlyserving as Chief Justice of New South Wales, called it “a high prerogative writ and so much the right of the subject as to render itcompulsory on the judges … to grant it (quoted in Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, Mass: BelknapPress, 2010), p. 82, citing In re Jane New, Dowling, Select Cases, v. 2, Archives Office of NSW, 2/3462, [1829] NSWSupC 11;emphasis added).

Thus, it becomes important to define the circumstances where this “great writ of liberty” should legitimately be denied.The Canadian cases have indicated that there are some limited exceptions to the general rule of availability. One of them is where thereis an alternative efficacious procedure available for addressing the applicant’s claims of illegal detention.

Whether the procedure underconsideration falls within the defined exception is a question of law on which the judge hearing the habeas corpus application must becorrect. [12] If the exception, on a correct analysis, does apply, then the judge has a discretion (but not a duty) to decline to grant the remedy.That decision is reviewable on the same standard as any other discretionary decision. See Langor v.

Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (NFCA) at paragraph 33. [13] If the conclusion on this analysis is that the judge should have assumed jurisdiction and dealt with the habeas corpus claim, thenthe following subsidiary questions potentially arise: (

i) whether the record is complete enough for this Court to decide the substantiveissue of legality of detention; and (ii) if so, what relief, if any, should be granted. Availability of Habeas Corpus [14] As noted by Blackstone, habeas corpus is in principle available to inquire into the legality of a detention whenever a person hasbeen detained and he or she alleges that the detention is unlawful and raises a legitimate question as to the lawfulness of the detention.

On the return of the writ in court following service, the applicant for relief has the burden of proving the existence of the detention butthe person or authority that is doing the detaining has the burden of establishing that the deprivation of liberty was lawful: May,paragraph 74.

That is why when an application for habeas corpus is served on the detaining authority there is a duty upon that person orbody, not only to bring the “body” of the detained person before the court but also to make a return to the court of all documents andother evidence pertaining to the lawfulness of the detention in response to the allegation. [15] If the court is not satisfied with the legality of the lawfulness of the detention upon a facial review of the documents offered asauthority for the detention, it can order the applicant’s discharge forthwith.

However, even if the detention documents appear to befacially valid, the court may also, in appropriate cases, look beyond the facial validity of those documents and, especially whencertiorari is sought in aid, examine the underlying circumstances of the whole record to determine whether the detention is in fact legaland if it is not, take appropriate action (Mission Institution v. Khela, paragraph 35). In either case, if the conclusion is that the detentionis not justified, the applicant is entitled to an order that he or she be released.

In that sense, the granting of the remedy of release is, unlikethe other prerogative remedies, not discretionary. See generally, on the historical development of the writ of habeas corpus, May, perLeBel and Fish JJ. at paragraphs 19-50; Debra Parkes, “The ‘Great Writ’ Reinvigorated? Habeas Corpus in Contemporary Canada”(2012), 36 Man. L.J. 351; and Halliday, passim. [16] Difficulties arose, however, where the applicant for relief had available to him or her a means under another legal procedure in

which to challenge the legality of the detention decision. Cases occurred, for example, where it was alleged that the applicant could haveachieved an appropriate result by way of judicial review in the Federal Court in immigration cases (Peiroo v. Canada (Minister ofEmployment and Immigration) (1989), (ON CA), 69 O.R. (2d) 253 (C.A.)) and in prisoner incarceration cases (Hickeyv. Kent Institution, 2003 BCCA 23). Habeas Corpus was denied in those cases. [17] The Supreme Court’s decision in May nevertheless reinvigorated the habeas corpus remedy in the area of concurrent oroverlapping jurisdiction.

LeBel and Fish JJ. wrote for the majority: [50] Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limitinghabeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeascorpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well-defined and limited.

Inour view, the propositions articulated by the Court of Appeal in these cases, as in Hickey … unduly limit the scope and availability ofhabeas corpus review and are incompatible with this Court’s jurisprudence. … In principle, the governing rule is that provincial superiorcourts should exercise their jurisdiction. However, in accordance with this Court’s decisions, provincial superior courts should declinehabeas corpus jurisdiction only where (1) a statute such as the Criminal Code, R.S.C. 1985, c.

C-46 confers jurisdiction on a court ofappeal to correct the errors of a lower court and release the applicant if need be or (2) the legislator has put in place complete,comprehensive and expert procedure for review of an administrative decision. (Emphasis added.) [18] See also, to similar effect, paragraphs 34-35 and 44 of the same decision, and also Chaudhary v.

Canada (Public Safety andEmergency Preparedness), 2015 ONCA 700. [19] It was on the basis of a conclusion that there was a “comprehensive” scheme in the MHCT Act “providing for broad rights ofreview and appeal” that the applications judge in this case felt justified in declining jurisdiction. To determine the correctness of thatdetermination, and whether he applied the proper standard to determine whether an exception to granting habeas corpus applied, it isnecessary to review the statutory scheme that provides for the detention of an individual and for the subsequent review of that detention.

The Mental Health Care and Treatment Act [20] The MHCT Act, among other things, provides for the involuntary admission and detention of persons in a hospital psychiatricunit. There are three basic ways in which the process can be initiated. [21] The first, under

section 18, follows from the issuance of a “first” certificate of involuntary admission by a physician following apsychiatric examination (however that may have occurred), thereby authorizing the apprehension of the person named in the certificateand the conveyance of that person to the psychiatric facility for an “involuntary psychiatric assessment.” There is no suggestion in thiscase that the apprehension and detention of Mr. Abbass occurred in this manner. [22] The second manner of initiating the involuntary admission process is described in

section 19 which provides that “anyone” whohas reasonable grounds to believe that a person (

a) has a mental disorder; (

b) as a result of the mental disorder has caused or is likely tocause harm to himself or herself or others or is likely to suffer physical or mental deterioration or serious physical impairment; and (c)refuses to submit to a psychiatric assessment, may apply to a judge for an order for a psychiatric assessment of that person. There was nocourt order made in this case authorizing Mr. Abbass’s detention. [23] The third and final manner of initiating the process provides in

section 20 for apprehension by a peace officer who has reasonablegrounds to believe the same circumstances outlined in

section 19 exist and “it is not feasible in the circumstances to make an applicationfor an order under

section 19.” In taking this route, the peace officer must provide the person conducting the assessment with a writtenstatement setting out, among other things, the grounds upon which the peace officer formed his or her beliefs that led to theapprehension; section 21(2)(c). (I would note in passing that there is nothing on the record to indicate that it was not feasible for theapprehending police officer to make an application for a court order under

section 19). [24] Upon being brought to the psychiatric facility, the person concerned is obliged to submit to a psychiatric assessment.

Section 16provides, insofar as it applies to this case, that a person may “only” be admitted and detained “under the authority of two certificates ofinvoluntary admission.”

Section 17 sets out the form and contents of certificates of involuntary admission:

(1) A certificate of involuntary admission shall be in the approved form and shall contain the following information: (

a) a statement by a person described in subsection 17(2) that he or she has personally conducted a psychiatric assessment of theperson who is named or described in the certificate within the immediately preceding 72 hours, making careful inquiry into all of thefacts necessary for him or her to form an opinion as to the nature of the person's mental condition; (

b) a statement by the person who has conducted the psychiatric assessment referred to in paragraph (

a) that, as a result of thepsychiatric assessment, he or she is of the opinion that the person who is named or described in the certificate (

i) has a mental disorder, and (ii) as a result of the mental disorder (

A) is likely to cause harm to himself or herself or to others or to suffer substantial mental or physical deterioration orserious physical impairment if he or she is not admitted to and detained in a psychiatric unit as an involuntary patient, (

B) is unable to fully appreciate the nature and consequences of the mental disorder or to make an informed decision

regarding his or her need for treatment or care and supervision, and (

C) is in need of treatment or care and supervision that can be provided only in a psychiatric unit and is not suitable for admission as a voluntary patient; (

c) a description of the facts upon which the person who has conducted the psychiatric assessment has formed the opinion described in subparagraphs (b)(

i) and (ii), distinguishing between the facts observed by him or her and those that have been communicated by another person; (

d) the time and date on which the psychiatric assessment was conducted; (

e) the dated signature of the person completing the certificate of involuntary admission; and (

f) another matter required by the regulations.

(2) A certificate of involuntary admission shall be completed and signed as follows: (

a) the first certificate of involuntary admission may be completed and signed by a physician, nurse practitioner or other person authorized by the regulations; and (

b) the second certificate of admission shall be completed by a psychiatrist or, where a psychiatrist is not readily available to assess the person and complete and sign a second certificate, by a physician who is a person other than the person who completed and signed the first certificate. [ 25 ] The keys to involuntary admission and detention are (

i) the opinion of the person conducting the psychiatric assessment that the person has a mental disorder and that as a result of that disorder he or she is experiencing the conditions and facing the circumstances listed in section 17(1)(b)(ii)(A)-(C); and (ii) the formal completion and issuance of the two certificates of involuntary admission in the form and containing the information stipulated in

section 17, especially the “description of the facts” forming the basis of the opinion in the certificate that justifies the admission and detention. [ 26 ] Until the foregoing processes are completed, the apprehended person cannot be involuntarily detained or treated under the MHCT Act and must be informed that he or she has the right to leave the facility: section 23(1). If the involuntary admission process is properly completed, on the other hand, the person must be admitted to the unit (section 24) and may be subjected to involuntary treatment including administration of medication (section 35).

We reject the hospital authority’s submission that “the Act does not require a diagnosis of a particular disorder as a prerequisite to involuntary admission but rather contemplates that the purpose of an involuntary admission could include attempting to obtain a diagnosis via diagnostic procedures” (First Respondent’s Factum, paragraph 67). [ 27 ] Once detained in the unit, the involuntary patient has a number of rights stipulated in

Part II of the Act. He or she also has rights of automatic review of his or her medical status (section 33) as well as the right to apply to the Mental Health Care and Treatment Review Board under section 64(1)(a) “to review the issuance of certificates of involuntary admission”. The Board also has jurisdiction to deal with complaints of denial of the rights in

Part II, which includes rights to information about the purposes of the patient’s detention and copies of the certificates of involuntary admission. The Board has the broad investigatory powers of a commissioner acting under the Public Inquiries Act , SNL 2006, c. P-38.1 and the Public Investigations Evidence Act , RSNL 1990, c. P-39. [ 28 ] The type of orders a panel of the Board can make are described in

section 72:

(1) In its decision, a panel may (

a) with respect to an application under paragraph 64(1)(a), confirm the person’s status as an involuntary patient if it determines that the criteria for admission as an involuntary patient set out in subparagraphs 17(1)(b)(

i) and (ii) were met at the time of the hearing of the application , notwithstanding a technical defect or error in a certificate of involuntary admission or certificate of renewal, or cancel the certificate, where it determines that the criteria for admission as an involuntary patient were not met at the time of the hearing of the application , and order the person to be released from the psychiatric unit, subject to a detention that is lawfully authorized otherwise than under this Act; (Emphasis added.) The Correctness of the Decision to Decline Jurisdiction [ 29 ] The essential question for consideration on this appeal is whether the statutory procedures for review of an involuntary patient’s detention under the MHCT Act can be characterized as a “complete, comprehensive and expert procedure for review of an administrative decision” as described in May , so that a potential exception to the automatic right to the use of the habeas corpus procedure applies. [ 30 ] We start with the observation in May that superior courts must not decline to hear habeas corpus applications “merely because another alternative remedy exists” and appears to be “more convenient” (paragraph 44).

The alternative procedure must be complete, comprehensive and expert in its nature and “at least as broad as habeas corpus and no less advantageous .” ( May , paragraph 63 ; see also Peiroo , pp. 261-262). In assessing the procedure involved in May , the majority identified five factors to consider: (1) the choice of remedies and forum; (2) the expertise of the superior courts; (3) the timeliness of the remedy; (4) local access to the remedy; and (5) the nature of the remedy and the burden of proof (paragraph 65). [ 31 ] Counsel for Mr.

Abbass submitted that the review procedure in the MHCT Act did not meet the “complete, comprehensive and expert” standard because that procedure only operates once it is determined that the patient has been lawfully detained, i.e. once the test for involuntary admission has been made out and the proper formal paperwork has been completed. In this case, it is the legality of the

initial detention that is being challenged. Mr. Abbass submits that not only was it not established that he was suffering from any mental disorder but the certificates of involuntary admission did not comply with the Act and did not provide the justification for the detention. [ 32 ] Very little information was placed before the applications judge or in the record in this Court as to the circumstances that led up to the detention of Mr. Abbas. [3] No statement from the peace officer who apprehended Mr. Abbass is part of the record. All we have are the two certificates of involuntary admission. Mr.

Abbass’s full medical chart and record of subsequent assessments and treatment were not presented to the court. This was because the issue of whether the court should decline to hear the application was made as a preliminary application before a hearing on the merits was fully organized and held. [ 33 ] Essentially, all this Court has is the material that was returned by the health authority in response to the habeas corpus application by way of justification that the detention was lawful.

That essentially consists of the two certificates of involuntary admission. [ 34 ] The first certificate certified that a psychiatric assessment of Mr. Abbass commenced at 5:31 PM on April 7, 2015 and concluded 19 minutes later at 5:50 PM. The certificate is a pre-printed form that states that the person examined “has a mental disorder” and then repeats the language of section 17(1)(b)(ii) (A) - (C).

Following that, there is a space for the physician to write, in response to the words on the form “My opinion is based on:” his reasons for the conclusion that the patient is suffering from a mental disorder. [4] In this case, the following appears on the form: - Pt. facing forensic/court on Thursday - some sx consistent with paranoia - making allegations on twitter after recent events and fatal shooting lead to questions of patient + public safety - needs observation +/- forensic + assessment [ 35 ] The second certificate was completed five minutes later.

The form is essentially the same as the previous one, but it contains the following: “The following facts and reasons for my opinion above [that the patient is suffering from a mental disorder] are as follows:” The hand-written response contains the following: Andrew Abbass was brought to the ER by RNC under the Mental Health Act for a psychiatric assessment, after he allegedly made statements on Twitter expressing anger with reference to the fatal shooting of a person in Eastern NL last weekend. In order to establish Mr.

Andrew Abbass’ personal safety as well as public safety, further observation and assessment is necessary in a secure facility as the least restrictive measure at this time. [ 36 ] As previously noted, section 17(1)(

c) requires a certificate of involuntary admission to contain: A description of the facts upon which the person who has conducted the psychiatric assessment has formed the opinion … , distinguishing between the facts observed by him or her and those that have been communicated by another person. [ 37 ] Both certificates primarily contain a recitation of the circumstances (presumably relayed by others because they did not lie within the physicians’ personal knowledge) under which Mr. Abbass was brought in for assessment.

Aside from asserting, as part of the pre- printed form, that he suffers from a “mental disorder” the certificates make no attempt to identify the mental disorder in question (except, possibly, in the case of the first certificate, that there are some symptoms “consistent with paranoia”) and certainly do not set out any “facts” within the physicians’ own knowledge (such as observations, interactions or answers to questions) that in the words of section 17(1)(

c) are the facts “upon which the person who has conducted the psychiatric assessment has formed the opinion”. Certainly, the generalized references to personal and public safety and anger as well as the need for further observation and assessment cannot constitute the “facts” contemplated by section 17(1)(

c) without showing that by virtue of their significance and nature they relate to and meet the criteria of harm to oneself or others and inability to appreciate the nature and consequences of the mental disorder (assuming one was specifically identified) or to make an informed decision regarding treatment, as set out in section 17(1)(b)(ii)(A)-(C). [ 38 ] The certificate is not merely a piece of paper that evidences a decision that has been made. It is the authority in itself to intrude upon the liberty and privacy of an individual.

Without the existence of the piece of paper, properly completed, the authority does not exist. [ 39 ] It is therefore at least arguable that, as matter of facial validity alone, the admission and detention of Mr. Abbass in the hospital was not lawfully authorized. That is sufficient to justify the commencement of the habeas corpus process. Mr. Abbass is prima facie entitled to have that issue litigated and determined.

The words of LeBel and Fish JJ. in May are relevant here: [71] … a writ of habeas corpus is issued as of right where the applicant shows that there is cause to doubt the legality of his detention. (Underlining added.) [ 40 ] Counsel for Mr.

Abbass points out that although the review procedure mandated by the MHCT Act speaks in terms of making an application “to review the issuance of certificates” (s. 64(1)(a)), the powers of a panel of the Board to issue an order is discretionary (“may”) and is limited to confirming the patient’s status as an involuntary patient if it determines that the criteria for admission “were met at the time of the hearing ” and to cancelling the certificate where it determines that the criteria for admission “were not met at the time of the hearing ” (s. 72(1)(a); emphasis added).

In other words, the role of the Board is to consider whether there is a basis, using the admission criteria, for continued detention. It presupposes that the patient was legitimately admitted in the first place and only addresses the need to keep the patient in the psychiatric unit, not the legalities of whether actions were properly taken initially. [ 41 ] We agree with this

interpretation. The Board review procedure does not allow for the type of fulsome review of legality of

detention that would be available in a habeas corpus application. [ 42 ] The applications judge – and the hospital authority in this case – referred to and relied on the Ontario Superior Court decision in Capano as support for the proposition that the statutory review procedure in Newfoundland and Labrador should, contrary to the foregoing reasoning, be considered to be an appropriate procedure for review of the legality of Mr. Abbass’s initial involuntary admission.

Capano dismissed an application for habeas corpus seeking to challenge an involuntary admission of a patient detained in Ontario under that province’s mental health legislation. D.M. Brown J. agreed with the hospital authority’s submission that the applicable legislation did constitute a complete, comprehensive and expert procedure for review of the decision to detain the patient.

He specifically held that the legislation in that case “affords an involuntary patient a right to apply to the [Board] to inquire into whether or not the prerequisites set out in the [Ontario legislation] for admission,… are met, i.e. whether the detention is lawful” (paragraph 35) and “gives the Board the authority to inquire into the lawfulness of a patient’s detention” (paragraph 36). [ 43 ] D.M. Brown J. interpreted the Ontario provisions as providing the reviewing board authority to review the initial legality of admission. That is an authority we have concluded, on an

interpretation of the MHCT Act , is not conferred on the Board. Accordingly, the Capano decision is distinguishable .

We would go further, however, and say that even if there is no material distinction between the statutory wording of the two provinces’ legislation, we dis agree with the result in Capano and would decline to follow it as a precedent for interpreting the MHCT Act . [ 44 ] Furthermore, we are satisfied that, even if the Board had authority to address the legalities involved , access to habeas corpus involves a much more timely and efficient procedure to address these issues than being required to go through the Board process. The Board process can take weeks from application to hearing to decision.

The time lines are set out in sections 66, 67 and 71 of the Act. By contrast, when urgent issues regarding liberty of the subject are at stake– as is evidenced by this case – the superior courts give priority to habeas corpus applications and will, if necessary, re-organize their dockets to accommodate the earliest possible hearing date.

The flexibility and availability of the habeas corpus procedure, when compared to the Board review procedure, also favours the former remedy. [ 45 ] We are also of the view that when dealing with the question of legality of detention, the superior court has greater expertise than a Board review panel. The panel’s focus, as described previously, is on whether there are continuing mental disorder issues that would justify further detention. Such questions are primarily of a medical nature which would call upon a developed expertise flowing from Board knowledge and experience.

But the questions of the legality of initial deprivation of liberty, and whether the decision is properly supported by the type and degree of evidence required by law, as well as the formalities of certification, are matters that are quintessentially a judicial function. [ 46 ] Finally, the nature of the remedy required when issues of the sort in this case are raised and the burden of proof are better dealt with on a habeas corpus application.

As LeBel and Fish JJ. emphasized in May , “on habeas corpus , so long as the prisoner has raised a legitimate ground upon which to question the deprivation of liberty, the onus is on the respondent to justify the lawfulness of the detention” (paragraph 71). If that justification is not made out, the person detained must be discharged. The proceeding places the focus on where it should be. The proceeding before the Board is more nuanced. While section 69(3)(

c) provides that the standard of proof is on a balance of probabilities and the onus of proof is on the administrator, the person in charge of the facility or the attending psychiatrist, the focus is the need for continuing care and treatment rather on legal justifications for the existing detention and, in any event, it is within the discretion of the Board to issue any order.

It does not engage the question of the initial lawfulness of the detention as argued by counsel for the hospital, nor does it place an obligation on the hospital to prove the lawfulness of that initial detention. [ 47 ] Thus, of the five factors mentioned in May , and mentioned above in paragraph 30, four of them favour a conclusion that the alternate procedure available under the MHCT Act is not “complete, comprehensive and expert” for review of the issues of legality raised by Mr. Abbass.

In merely stating that there was a “comprehensive scheme” in the Act and that there were “broad rights of review and appeal”, the applications judge did not apply the correct standard for determining this question. [ 48 ] We conclude that the applications judge should not have declined to exercise his jurisdiction to hear and determine the habeas corpus application. [ 49 ] Having reached this conclusion, it is not necessary to go on and consider whether, even if the alternative procedure was adequate, the court should nevertheless have exercised its discretion to hear the case in any event. [ 50 ] That said, we state that the importance of this case and the fundamental issues at stake should not have been lost on the parties and the judge at the original hearing in their concern to deal with the technical legal issues that were raised. [ 51 ] If anger about political events and words of defiance to authorities are dealt with as signs of mental illness, a fortiori mental illness warranting involuntary committal, then our society is in a dangerous place.

Such anger and defiance are characteristic of political dissent. As the history of authoritarian societies has taught us, confinement in a mental institution is a particularly insidious way of stifling dissent, directly and through intimidation. Was this the intent of the police in this case? Did the physicians simply lend their authority to what the police asked them to do? Did they assume that a person who acts in the way Mr. Abbass did needs help and further assessment and observation, without turning their minds to the specific limited statutory criteria that would justify his deprivation of liberty?

On the face of the materials before the applications judge these were possible (though, of course, not the only)

interpretations of what occurred. The applications judge owed a duty to Mr. Abbass to look further into the circumstances, which to say the least appear to be extraordinary. [ 52 ] The reality is that if you are involuntarily confined, you are viewed differently; you are seen as less credible. That is not how it should be but that is how it is. As well, there is the intimidation factor. If the police can take you away once and the physicians confine you, maybe they will do so again. [ 53 ] Mr. Abbass felt that what the police and physicians did was without proper authority.

He sought the vindication of having a Supreme Court judge affirm this. Whether Mr. Abbass was correct in his view or whether the police and the physicians acted properly is not the question before this Court. Rather, it is whether, when Mr. Abbass sought to challenge what had been done to him, the

applications judge should have heard the matter. [ 54 ] Should Mr. Abbass have been given an opportunity to seek his release on the basis that he should not have been confined in the first place? The applications judge in effect said no. In this he committed a fundamental error. The courts must always be there for the vindication of the citizen with what he or she views as the wrongful exercise of authority. Mr. Abbass was denied his day in court. He should have had it.

Remedy [ 55 ] The appeal is allowed and the decision of the applications judge declining to exercise his jurisdiction to hear the appellant’s habeas corpus application is set aside. The matter is remitted to the Trial Division for the continuation of the hearing. [ 56 ] We would add that it is not appropriate for this Court to make a determination on the merits of the habeas corpus application as to whether the detention was in fact unlawful because the record to enable a proper determination inthat regard may be incomplete.

The decision to deal with the appropriatness of hearing the matter by way of habeas corpus as a preliminary matter diverted consideration from what was needed to make a determination on the merits. [ 57 ] The appellant is awarded his costs in the Trial Division and on this appeal on a party-and-party basis calculated by reference to column 3 of the scale of costs. Appeal allowed.