Andrew Abbass Applicant And: Western Health Care Corporation FIRST Respondent And: jehanara talpur (Discontinued) second Respondent, 2018 NLSC 96

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Abbass v. Western Health Care Corporation , 2018 NLSC 96 Date : April 27, 2018 Docket : 201504G0083 Between: Andrew Abbass Applicant And: Western Health Care Corporation FIRST Respondent And: jehanara talpur (Discontinued) second Respondent Before: Justice Brian F. Furey Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: July 7, 2017

Summary: The Applicant sought an order of habeas corpus alleging he was unlawfully detained at the Western Memorial Regional Hospital, a facility operated by the First Respondent.

Held: The Application was granted. An order of habeas corpus was granted. Appearances: Joan M. B. Dawson Appearing on behalf of Andrew Abbass James E. Merrigan, Q.C. Appearing on behalf of Western Health Care Corporation Authorities Cited: CASES CONSIDERED: Abbass v. Western Health Care Corporation, 2017 NLCA 24; Arsenault v. Eastern Health, 2015 NLTD(G)126; and Re Jenkins; Reference Re Mental Health Act (1984), (PE SCTD), 45 Nfld. & P.E.I.R. 131, 132 A.P.R. 131(P.E.I. S.C.) STATUTES CONSIDERED: Mental Health Care and Treatment Act, S.N.L. 2009, c. M-9.1; and Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 REASONS FOR JUDGMENT Furey, J.: INTRODUCTION [1] Andrew Abbass is seeking an order of habeas corpus relating to his detention at the Western Memorial Regional Hospital(hereinafter the “Hospital”) in Corner Brook, Newfoundland and Labrador, in April 2015. [2] On April 7, 2015, Mr. Abbass was detained by members of the Royal Newfoundland Constabulary who escorted him to theHospital for the purpose of an assessment under the Mental Health Care and Treatment Act, S.N.L. 2009, c. M-9.1 (hereinafter the“MHCT Act”). [3] Mr. Abbass was seen by Dr.

Brent Thistle in the outpatient department of the Hospital. Dr. Thistle signed a First Certificateof Involuntary Admission regarding Mr. Abbass at 1750 hours on April 7, 2015. [4] Mr. Abbass was also seen by Dr. Jehanara Talpur, a psychiatrist, who signed the Second Certificate of InvoluntaryAdmission at 1755 hours on April 7, 2015. [5] Mr. Abbass was subsequently admitted to the psychiatric unit of the Hospital as an involuntary patient where he remaineduntil his discharge on April 13, 2015. [6] On April 9, 2015, Mr.

Abbass filed an Originating Application (Inter Partes) against Western Health Care Corporation(hereinafter “Western Health”) as the First Respondent and Dr. Jehanara Talpur as the Second Respondent seeking an order of habeascorpus. He alleged that his detention at the Hospital was unlawful, that his rights under

section 10 of the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 were violated by the actionsof the Respondents and that his detention at the Hospital was not in accordance with the MHCT Act. [7] On April 10, 2015, another Justice of this Court heard the Application. He ruled that the court declines jurisdiction to hearthe Application because the MHCT Act provided a complete comprehensive and expert procedure for review of the Applicant’sdetention and dismissed the Applicant’s Application. [8] Mr. Abbass appealed the decision of April 10, 2015 to the Court of Appeal. [9] The appeal was heard in the Court of Appeal on April 12, 2016 and the court filed written reasons on April 13, 2017 in

Abbass v. Western Health Care Corporation , 2017 NLCA 24 (hereinafter referred to as “ Abbass ”). The Court of Appeal stated at paragraph 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.” [ 10 ] On June 1, 2017, Mr. Abbass filed an Interlocutory Application seeking a date to allow the parties to set a date for the hearing to continue. The Court set the hearing for July 7, 2017. [ 11 ] Prior to the hearing, Mr.

Abbass filed a Notice of Discontinuance on May 17, 2017, discontinuing the Application against the Second Respondent. [ 12 ] Mr. Abbass filed Affidavits dated June 14, 2017 and July 4, 2017. [ 13 ] Dr. Talpur swore an Affidavit on June 16, 2017, which was filed on June 30, 2017. [ 14 ] Dr.

Brent Thistle swore an Affidavit on June 29, 2017, which was filed on June 30, 2017. the issue [ 15 ] The sole issue for determination is whether an order for habeas corpus should have been issued. the law [ 16 ] Habeas corpus , a prerogative writ, has long been considered a remedy in this Court as noted by the Court of Appeal in Abbass at paragraphs 1 and 2 : 1 The use of habeas corpus as a remedy for challenging wrongful deprivation of liberty has been alive and well in Newfoundland and Labrador ever since, in 1817, Chief Justice Forbes issued it, with certiorari in aid, to the gaoler at Ferryland to have a prisoner brought before him in St.

John's to inquire into the legality of his imprisonment and sentence: Re Patrick Kent (1817), Tucker's Select Cases 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 inherent jurisdiction of the Newfoundland and Labrador Supreme Court as a means of maintaining the rule of law ever since Forbes C.J. and his successor, 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), 1 Nfld. L.R. 285 at 293-297. [ 17 ] The Court of Appeal stated further at paragraphs 11 and 14: 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 and efficacious 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 subsequently serving as Chief Justice of New South Wales, called it "a high prerogative writ and so much the right of the subject as to render it compulsory on the judges ... to grant it (quoted in Paul Halliday, Habeas Corpus: From England to Empire (Cambridge, Mass: Belknap Press, 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 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. . . . 14 As noted by Blackstone, habeas corpus is in principle available to inquire into the legality of a detention whenever a person has been 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 but the 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 or body, 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 and other evidence pertaining to the lawfulness of the detention in response to the allegation. [ 18 ] As is referenced in the previous paragraph, access to habeas corpus has been set out in

section 10(

c) of the Canadian Charter of Rights and Freedoms as follows: 10 Everyone has the right on arrest or detention . . .

(

c) to have the validity of the detention determined by way of habeas corpus and to be released of the detention is not lawful. [ 19 ] Thus, the essential elements of the habeas corpus Application are whether there has been a detention of a person and whether the detention was lawful. evidence [ 20 ] In his Affidavit sworn to on June 14, 2017, Mr.

Abbass stated that on April 7, 2015, members of the Royal Newfoundland Constabulary showed up at his home and informed him that under the authority of the MHCT Act they were taking him to the Hospital to be examined by a doctor because of some tweets he had made on social media. He was not provided with any documentation having been told there was no need for any. He stated he was not advised of his rights, given any caution or given any opportunity to contact a lawyer. [ 21 ] He was brought to the Hospital where he met with Dr. Thistle. Mr. Abbass estimated the interview with Dr.

Thistle lasted approximately 60 seconds. About a half-hour later, he met with Dr. Talpur who spoke to him for a short period of time and advised him that he was being admitted to the psychiatric unit of the Hospital. He was given a copy of the First Certificate of Involuntary Admission signed by Dr. Thistle on his admission to the psychiatric unit. He received a copy of the Second Certificate of Involuntary Admission the next day. [ 22 ] On cross-examination by counsel for Western Health, Mr. Abbass stated the police asked him to go the Hospital. He noted he went willingly but it was under duress.

He stated he did not have a choice. The police officers stayed with him until he was admitted. He confirmed that he spoke to both Dr. Thistle and Dr. Talpur. He did not consent to a voluntary admission in his discussions with Dr. Thistle. His discussion with Dr. Talpur was longer. He acknowledged he was angry at that time because he was in an upsetting situation and he was no longer at liberty. His rights were being restricted. [ 23 ] Dr. Brent Thistle is an emergency room physician at the Hospital. He saw Mr. Abbass for a psychiatric assessment on April 7, 2015. He disputed Mr.

Abbass’ statement that he only met with him for about 60 seconds noting he did not keep a record of how long he met with Mr. Abbass. He signed the Certificate at 1750 hours, sometime after he conducted his assessment. He stated the difference in the times occurred because it took him some time to determine his course of action. He acknowledged Mr. Abbass had some symptoms consistent with paranoia and he suggested to Mr. Abbass that he needed an inpatient assessment. [ 24 ] On cross-examination by counsel for Mr. Abbass, Dr. Thistle confirmed that he felt Mr. Abbass needed further assessment.

That was his opinion after assessing Mr. Abbass at the time. Counsel pointed out to Dr. Thistle that in looking at the Hospital record that was filed with the court, there were no notes from him. He replied that it was not uncommon when busy for a chart to go back without any notes. Counsel also pointed out that paragraph 10 of Dr. Thistle’s Affidavit stated: “I believe that he may make a provocative act or gesture to the police leading to self harm” but this was not recorded. Dr. Thistle acknowledged that. Dr. Thistle hoped that Mr. Abbass would agree to a voluntary assessment. When he did not, Dr.

Thistle made his determination to admit Mr. Abbass and signed the First Certificate of Involuntary Admission to have the assessment done. [ 25 ] In response to questions from counsel for Western Health, Dr. Thistle outlined the process of an assessment. Generally, he reviewed the nurses’ notes and triage notes. He was presented with the patient’s chart. In this matter, he saw the social media tweets before he met with Mr. Abbass. It was not uncommon to meet with the police to understand why they brought a patient to the Hospital under the MHCT Act . He confirmed he requested a consult with Dr. Talpur.

He agreed there was an overlap between his assessment and Dr. Talpur’s assessment of Mr. Abbass. [ 26 ] His decision to admit Mr. Abbass was based on the time he signed the First Certificate of Involuntary Admission. His hope was to accomplish an assessment of Mr. Abbass by a psychiatrist. He suggested an assessment is a treatment. Talking to a patient or having an interaction with a patient is part of a treatment. It might not include medication. He stated the psychiatric treatment was the assessment. He was trying to determine if there was an underlying psychiatric illness or not.

He expected that when he signed the First Certificate, Mr. Abbass would go to the psychiatric unit of the Hospital and a psychiatrist would see him later, likely by the next day. But, Dr. Talpur came to see Mr. Abbass earlier. submissions The Applicant [ 27 ] Counsel for the Applicant submitted that Mr. Abbass was brought to the Hospital on April 7, 2015 for an assessment which was completed. He was involuntarily admitted to the Hospital. He did not have a mental disorder as that term is defined under the MHCT Act .

As such, his detention was unlawful because no documentation referred to him being in need of psychiatric treatment. She referred to Abbass where the Court of Appeal stated in part at paragraph 26: 26 . . . 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). [ 28 ] She noted Dr.

Thistle in his evidence stated he wanted a psychiatric assessment of Mr. Abbass to determine if there was an underlying mental illness. She suggested that a doctor is not treating a person if the doctor does not know if someone has a mental illness. [ 29 ] She referred to the definition of “mental disorder” in paragraph 2(1)(

k) of the MHCT Act . That states as follows: 2.(1)(k) "mental disorder" means a disorder of thought, mood, perception, orientation or memory that impairs

(

i) judgment or behaviour, (ii) the capacity to recognize reality, or (iii) the ability to meet the ordinary demands of life, and in respect of which psychiatric treatment is advisable; [ 30 ] Counsel noted that

Part III of the MHCT Act deals with “Assessment, Admission, Treatment and Discharge”.

Section 16 only permits a person to be admitted to and detained in a psychiatric unit as an involuntary patient under the authority of two certificates of involuntary admission.

Section 17 outlines the contents of a certificate of involuntary admission. That

section states: 17.

(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 the person who is named or described in the certificate within the immediately preceding 72 hours, making careful inquiry into all of the facts 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 the psychiatric 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 or serious 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. [ 31 ] She pointed out that the first aspect of a person being admitted to and detained in a psychiatric unit as an involuntary patient is that the person “has a mental disorder” as is stated in sub-paragraph 17(1)(b)(i). [ 32 ]

Section 18 sets out the effect of one certificate of involuntary admission. It authorizes the detention of the person. It has such serious consequences for the person. Once a person is certified, counsel submitted the state has tremendous power over that person, particularly in the context of a person who has done nothing wrong and who does not have any criminal charges. [ 33 ] Counsel referred to Arsenault v. Eastern Health , 2015 NLTD(G) 126 in which Goodridge, J. dealt with an appeal of the decision of the Mental Health Care and Treatment Review Board regarding a community treatment order.

While acknowledging that Arsenault was dealing with community treatment orders, by analogy, counsel suggested some of the comments of Goodridge, J. were applicable to the effect of certification. In paragraph 13, Goodridge, J. stated in part: 13 The effect of a CTO is compulsory submission to psychiatric treatment, enforceable by apprehension and detention, if necessary.

It is a significant state intervention in the context of no criminal activity; in the context that the person subject to the order suffers from a mental illness; in the context of the individual liberties and freedoms guaranteed under the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. This level of state intervention can be justified in special circumstances and the Act sets out where those circumstances may exist. But the Act also builds in many safeguards to balance both the individual's interests and the community's interests. . . . [ 34 ] Counsel suggested that certifications are legal papers.

She reiterated that the consequences of a person being certified as an involuntary patient (including a serious restriction of their liberty) are so serious that nothing short of strict compliance with the legal requirements of the MHCT Act will satisfy the Act . [ 35 ] She noted that Dr. Thistle’s Certification of Involuntary Admission stated that Mr. Abbass needed observation and forensic psychiatric assessment. The Hospital record did not contain any notes from Dr. Thistle. Counsel suggested that Dr.

Thistle’s Certificate was not supported by facts within the meaning of paragraph 17(1)(c), that is “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)”. The Second Certificate of Involuntary Admission was signed by Dr. Talpur. The Hospital record did contain notes from her. The crux of the matter as set out in the Second Certificate was that Mr. Abbass should be admitted for “further observation and assessment in a secure facility”. Counsel noted there was no mention by either doctor of any treatment for Mr. Abbass. [ 36 ] Counsel noted that that treatment is linked to the certification of mental disorder in the MHCT Act . Mr. Abbass was certified on the basis of two Certificates.

He was admitted to the psychiatric unit of the Hospital in order to be assessed. The MHCT Act required that he have a mental disorder. There were no grounds to admit him at that time because he did not meet the definition of mental disorder. [ 37 ] The purpose was only for an assessment. Counsel argued that a person cannot be admitted on a fishing expedition. To do that does not meet the criteria under the MHCT Act . She asked that an order for habeas corpus be granted. [ 38 ] At the conclusion of her submissions, I asked counsel what the effect is in this matter if an order of habeas corpus is granted.

She replied that there would be no practical effect. However, it was important to Mr. Abbass because of the stigma of being certified. She referred to paragraph 52 of Abbass where the Court of Appeal stated: 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.

The First Respondent [ 39 ] Counsel for the First Respondent submitted the Court of Appeal referred the matter back to this Court to be decided on its merits, that is whether Mr. Abbass’ detention was lawful or unlawful. The Court was being asked to consider an event that happened two years previously suggesting the Court has to restrict its view to what was present on April 7, 2015, the day when Mr. Abbass was at the Hospital. He suggested that the context in which Dr. Thistle and Dr. Talpur were acting had to be considered.

It was two days after the shooting of an individual by a police officer in another part of the province. The doctors had a concern based on what had happened at that time. [ 40 ] The Court was referred to several

definitions in the MHCT Act . These are set out below: 2.

(1) In this Act . . . (h) "facility" means a place where a psychiatric assessment may be conducted and includes a physician’s office; . . .

(k) "mental disorder" means a disorder of thought, mood, perception, orientation or memory that impairs (

i) judgment or behaviour, (ii) the capacity to recognize reality, or (iii) the ability to meet the ordinary demands of life, and in respect of which psychiatric treatment is advisable; . . . (q) "psychiatric unit" means a facility which is a hospital or part of a hospital and that has been designated by the minister for the observation, assessment, detention, custody, restraint, treatment, care and supervision of a person with a mental disorder; [ 41 ] Counsel suggested that “facility” is a broadly defined term. “Mental disorder” is one with two disjunctive lists, one which refers to a disorder and the other which refers to an impairment. “Psychiatric unit” is a more narrowly defined term than “facility”. [ 42 ] He reiterated that

section 16 sets out that two certificates of involuntary admission are required for a person to be admitted to and detained in a psychiatric unit. [ 43 ] He referred to

section 20 of the MHCT Act which states: 20. Where a peace officer has 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 to cause harm to himself or herself or another or is likely to suffer substantial physical or mental deterioration or serious physical impairment; and (

c) refuses to submit to a psychiatric assessment and it is not feasible in the circumstances to make an application for an order under

section 19, the peace officer may immediately apprehend that person and convey him or her to a facility for an involuntary psychiatric assessment. [ 44 ] It provides for the apprehension of a person by a police officer who has reasonable grounds to believe the three circumstances set out in (a), (

b) and (

c) are present. On the Mental Health Care and Treatment Act Template (Report/Escort Form), which is contained in the Hospital record, the police officer wrote as the reason(

s) for detention – “concerning comments – concern for mental health”. [ 45 ]

Section 22 requires that a person conveyed to or detained in a facility have a psychiatric assessment within 72 hours. That person may also be treated during the period of detention. [ 46 ] Counsel outlined that Dr. Thistle met with Mr. Abbass. He consulted with Dr. Talpur. He completed his assessment, deliberated and signed the First Certificate of Involuntary Admission at 1750 hours. He identified paranoia as a concern. He identified that, from a physician’s perspective, observation is treatment. Dr. Thistle had concerns for Mr. Abbass’ safety in the context and the facts before him. He thought it was paranoia.

His treatment was to sit down and talk to Mr. Abbass and assess him. Counsel questioned whether that was treatment. He suggested that it was noting there was no guidance in the MHCT Act . The evidence of Dr. Thistle is that what he did was treatment. Dr. Thistle’s opinion was that there was a disorder and there was treatment. It was not invasive but it was treatment. [ 47 ] Counsel suggested that when Mr. Abbass was brought to the Hospital he was detained by the police officer in accordance with subsection 21(3) of the MHCT Act . It was not until the First Certificate was issued by Dr. Thistle that Mr.

Abbass was detained at the Hospital. [ 48 ] Paragraph 18(2)(

c) of the MHCT Act outlines the effect of the completion and signing of the First Certificate of Involuntary

Admission. Dr. Thistle had contacted Dr. Talpur to discuss the matter. On the authority of the First Certificate, Dr. Thistle expected Mr.Abbass would spend a night in the Hospital and be seen the next day but Dr. Talpur saw Mr. Abbass at approximately the same time orshortly after Dr. Thistle had seen him. Dr. Talpur completed the Second Certificate of Involuntary Admission as required by paragraph17(2)(

b) of the MHCT Act. Mr. Abbass was moved to the psychiatric unit of the Hospital for a more thorough assessment. Counsel notedthat

section 24 authorizes the admission of a person to a psychiatric unit when the two Certificates of Involuntary Admission have beencompleted. [49] Counsel referred to paragraphs 38 and 39 of Abbass in which the Court of Appeal said the following: 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 uponthe 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 wasnot lawfully authorized. That is sufficient to justify the commencement of the habeas corpus process. Mr. Abbass is prima facie entitledto 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.) [50] Counsel submitted that suggesting there are facial problems with the Certificate allows for a habeas corpus application tobegin. [51] Counsel submitted that the Court of Appeal sent this matter back to this Court so that this Court could get more facts thanmerely the face of the record.

He suggested the standard of proof is on the balance of probabilities citing Re Jenkins; Reference ReMental Health Act (1984), (PE SCTD), 45 Nfld. & P.E.I.R. 131, 132 A.P.R. 131 (P.E.I. S.C.), a decision of the PrinceEdward Island Supreme Court, in banco. McQuaid, JJ. of the court stated the following in

part in paragraph 59: 59 . . . 3.

That if, on habeas corpus, a patent irregularity is shown to exist on the face of the record, the judge before whom the application has[*page 145] been brought may then hold an inquiry, the onus of proof upon the hospital or psychiatric facility being the civil standard ofpreponderance of evidence, not the criminal standard of proof beyond reasonable doubt. . . . [52] The latter was the test the judge at first instance had determined to be the applicable standard when the matter first came beforethe Prince Edward Island Supreme Court. [53] In conclusion, counsel for the First Respondent stated that an order for habeas corpus should not granted.

The detention wascorrect. It was lawful. The matter turns on the definition of disorder and whether the physicians formed an opinion that Mr. Abbass had adisorder within the meaning set out in the MHCT Act. The question is whether on a balance of probabilities the physicians had sufficientevidence to support their opinion. Counsel submitted that the evidence is that was their opinion. analysis [54] Mr. Abbass is seeking an order of habeas corpus arising from his admission to and detention in the Western MemorialRegional Hospital in Corner Brook in April 2015. Mr.

Abbass was a patient at the Hospital from April 7 until April 13, 2015 when hewas discharged. [55] The Court of Appeal noted Mr. Abbass’ discharge at the time his appeal of an earlier decision of this Court was being argued.Notwithstanding his release, the Court of Appeal clearly stated in

part in paragraph 4 of Abbass: “Even though the specific issue istherefore 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. . . . ” The Court of Appeal allowed the appeal and remitted the matter to this Court for thecontinuation of Mr. Abbass’ habeas corpus Application. The Court of Appeal also stated the following in part at paragraph 54 of Abbass:“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.” [56] The essential elements of the habeas corpus application are whether there has been a detention of a person and whether thedetention was lawful. The onus is on the applicant to prove the existence of the detention. The person or authority that detains theapplicant has the burden of establishing that the deprivation of liberty was lawful.

There is also a duty on the person or authority to makea return to the court of all documents and other evidence pertaining to the lawfulness of the detention. [57] The focus of the Applicant’s argument is that he did not have a mental disorder, he should not have been detained because therewere no grounds to do so and the detention was therefore unlawful. [58] The First Respondent argues that the two physicians assessed Mr. Abbass in accordance with the MHCT Act, they had

sufficient evidence to support their opinion that he had a disorder within the meaning of the Act and his detention was lawful. [ 59 ] I have reviewed the hospital record in detail as well as the Affidavits of Mr. Abbass, Dr. Thistle and Dr. Talpur. I have considered the viva voce evidence of Mr. Abbass and Dr. Thistle. I have also reviewed the pertinent sections of the MHCT Act . [ 60 ] I have restricted my consideration of this matter to a review of the actions of the two Respondents, particularly the First Respondent, and not members of the Royal Newfoundland Constabulary.

Neither that organization nor individual members were named in the Originating Application. [ 61 ] From the evidence presented, I find it is undisputed that on April 7, 2015, Mr. Abbass was brought to the Hospital by members of the Royal Newfoundland Constabulary to be assessed under the MHCT Act . Mr. Abbass was assessed by Dr. Thistle and Dr. Talpur. Both physicians signed Certificates of Involuntary Admission, the effect being his admission to and detention in the Hospital (specifically, the psychiatric unit) as an involuntary patient.

Therefore, I find that the Applicant has established that he was detained at the Hospital on that day. [ 62 ] Was Mr. Abbass’ detention at the Hospital lawful? He was seen by two doctors - an emergency room physician and a psychiatrist. Both doctors signed Certificates of Involuntary Admission dated April 7, 2015. [ 63 ] Under the MHCT Act , there are three basic ways in which a person can be involuntarily admitted to and detained in a psychiatric unit. These are set out in

section 18 (Effect of one certificate of involuntary admission),

section 19 (Judge’s order for an involuntary psychiatric assessment) and

section 20 (Apprehension by a peace officer). [ 64 ] In this matter, sections 19 and 20 are not relevant. [ 65 ]

Section 18 is linked to

section 17, the provision in the MHCT Act which refers to a certificate of involuntary admission. Paragraph 17(1)(

b) requires a statement by the person who conducted the psychiatric assessment that the person named in the certificate (1) has a mental disorder, and (2) as a result of the mental disorder, the person is likely to cause harm to himself or others, the person is unable to fully appreciate the nature and consequences of the mental disorder and the person is in need of treatment or care and supervision. In my view, it is critical that the Certificates of Involuntary Admission contain both criteria. [ 66 ] That is the process by which Mr. Abbass was detained in the Hospital.

The First Certificate of Involuntary Admission was issued by Dr. Thistle. The Second Certificate of Involuntary Admission was signed by Dr. Talpur shortly after the First Certificate was issued. [ 67 ] Has the First Respondent established that the issuance of the First Certificate of Involuntary Admission supported by the Second Certificate of Involuntary Admission is sufficient to show that the detention of Mr. Abbass was lawful? [ 68 ] A certificate of involuntary admission cannot contain just one condition, that is either the requirement set out in subparagraph (

i) or (ii) of paragraph 17(1)(b). It is necessary that a certificate of involuntary admission contain both conditions. [ 69 ] In reviewing the evidence presented and the Hospital record, I note the following: a. Dr. Thistle wrote in the First Certificate of Involuntary Admission “Some symptoms consistent with paranoia, making allegations on Twitter after recent events and fatal shooting lead to questions of patient and public safety, and needs observation +/- forensic psychiatric assessment”. b. The Hospital record had no notes or observations from Dr. Thistle. c. Mr. Abbass stated he only met with Dr.

Thistle for a time he estimated to be 60 seconds. d. Dr. Thistle disputed Mr. Abbass’ statement indicating he did not keep a record of how long he met with Mr. Abbass. e. Dr. Thistle spoke to Mr. Abbass about agreeing to a voluntary assessment which he did not. f. Dr. Talpur wrote in the Second Certificate of Involuntary Admission: 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’s 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. [ 70 ] In my respectful opinion, I am satisfied that the information provided to and also obtained by the two doctors was not sufficient to establish that the two Certificates of Involuntary Admission should have been issued. [ 71 ] In this matter, all participants, including the Court, are faced with circumstances in which Mr. Abbass’ liberty and freedom of movement were seriously affected on April 7, 2015.

He was detained in the Hospital because of the issuance of the Certificates of Involuntary Admission. He was not permitted to leave until he was formally discharged. [ 72 ] Those who use the MHCT Act must ensure strict compliance with its provisions. The use of this legislation is certainly a significant state intervention in the life of an individual. The consequences of being certified as an involuntary patient are so profound and serious. The detention of the individual deprives that person of the right to come and go as he or she pleases in daily life. [ 73 ] Subparagraph 17(1)(b)(

i) requires that the person who conducted the psychiatric assessment is of the opinion that the person who is named in the Certificate “has a mental disorder”. The Certificates do not identify the mental disorder in question except the First Certificate does state that there are some symptoms “consistent with paranoia”. No facts are set out to support this statement. The Second

Certificate does not identify any mental disorder. In Dr. Talpur’s note of April 7, 2015 contained in the Hospital record, she refers to “r/o paranoia”. [ 74 ] In my view, signing a certificate of involuntary admission under the MHCT Act resulting in the detention of an individual is a significant and definitive action to be taken by a medical practitioner.

Therefore, it is necessary that the MHCT Act be fully complied with and that the medical practitioner provide written notes with sufficient factual detail to support the issuance of the certificate. [ 75 ] I am not satisfied that a review of the Hospital record relating to Mr. Abbass and the two Certificates of Involuntary Admission show evidence of Mr. Abbass having a mental disorder. As a result, I conclude that the First Respondent has not produced evidence to show that the detention of the Applicant on April 7, 2015 was lawful. [ 76 ] The Application is granted.

An order of habeas corpus is granted. [ 77 ] The Applicant is awarded his costs on a party and party basis under Column 3 of the Scale of Costs. _____________________________ Brian F. Furey Justice