David Cooper APPLICANT And: Eastern Regional Health Authority DEFENDANT, 2018 NLSC 79

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Cooper v. Eastern Health , 2018 NLSC 79 Date : April 13, 2018 Docket : 201801G2537 Between: David Cooper APPLICANT And: Eastern Regional Health Authority DEFENDANT Before: Justice Gillian D. Butler Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: April 11, 2018 Date of Oral Judgment: April 11, 2018

Summary: The Court declined to exercise jurisdiction to consider the Applicant’s request for a writ of Habeas Corpus (with certiorari in aid ) relative to the March 26, 2018 Order of a Review Board given under

section 672.54 of the Criminal Code . Appearances:

Jennifer A. Curran Appearing on behalf of the Applicant Janie L. Bussey, Q.C. Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Abbass v. Western Health Care Corp. , 2017 NLCA 24 ; Staetter v. British Columbia (Director of Adult Forensic Psychiatric Services) , 2017 BCCA 68 ; May v. Ferndale Institution , 2005 SCC 82 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46 ; Mental Health Care and Treatment Act , S.N.L. 2006, c. M-9.1; 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 REASONS FOR JUDGMENT Butler, J. : FACTS History [ 1 ] On January 15, 2013, the Applicant was found not criminally responsible on account of a mental disorder for the assault causing bodily harm offence with which he was charged. He has been under the jurisdiction of the Newfoundland and Labrador Review Board since that time. [ 2 ] Between January and May 2013, Mr. Cooper appeared before the Review Board and on May 13, 2013 was granted a conditional release. Subsequently, he resided in the community under the care of Dr. Beaumont. Mr.

Cooper is a resident of Stephenville on the Province’s West Coast. [ 3 ] On January 27, 2015, Mr. Cooper was found to be in violation of the terms of his conditional release and was remanded in custody subject to further review by the Board. [ 4 ] On March 20, 2015, Mr. Cooper was once again discharged by the Board but on October 8, 2015, sentenced to 700 days incarceration for a charge of assault causing bodily harm. In relation to this conviction, he was due for release on January 16, 2017. [ 5 ] On March 1, 2016, Mr. Cooper had his annual review from the March 2015 discharge and it was continued.

His next annual review was significantly delayed because of difficulties accessing psychiatric services and the psychiatrist being unavailable for cross- examination. Ultimately, however, it was determined that the conditional discharge should be continued for four months. [ 6 ] On October 3, 2017, Dr. Cooper’s psychiatrist recommended that he be discharged absolutely. During the hearing, the psychiatrist was cross-examined and admitted she was unaware of Mr. Cooper’s October 8, 2015 sentence and the 700 days incarceration.

She therefore agreed that a full release was inappropriate and recommended a six-month follow-up. The Review Board determined that he should be discharged on conditions. [ 7 ] On February 19, 2018, Mr. Cooper was remanded to the Waterford Hospital for failure to comply with the conditions of the October 2017 Order of the Board. At issue here is the March 26, 2018 Order given by the Board following the hearing held March 6, 2018. The Order [ 8 ] The mandate of the Review Board is explained in

section 672.54 of the Criminal Code of Canada , R.S.C. 1985, c. C-46. On a hearing, the Review Board shall, taking into account the safety of the public, which is the paramount consideration, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is necessary and appropriate in the circumstances:

a. a discharge absolutely; b. a discharge on conditions; or c. a direction that the accused be detained in custody in a hospital subject to such conditions as the Court or Review Board considers appropriate. [ 9 ] On March 6, 2018, the Review Board held a review hearing for Mr. Cooper and on March 26, 2018 made an Order which read as follows: It is ordered that pursuant to

section 672.54 (

b) of the Criminal Code of Canada when clinically indicated the Accused be discharged subject to the following conditions, that he: 1. Keep the peace and be of good behaviour; 2. Abstain from the possession and/or consumption of alcohol and non-prescription drugs; 3. Continue to see his psychiatrist on a regular basis as required by him/her; 4. Take all medications as prescribed by his doctors (for which he indicated his agreement); 5. Notify the Review Board of any change in living arrangements; 6. Refrain from contact with Phillip Linus Bennett; 7.

Be provided services by the local mental health case management team; and 8. He co-operate with and follow the instructions and counselling of his case manager. [ 10 ] By Originating Application and Interlocutory Application ex parte, counsel for the Applicant characterizes the Review Board’s Order of March 26, 2018 as a discharge on conditions (

section 672.54 (b)) but asserts that notwithstanding the nature of the Order, Mr. Cooper continues to be detained at the forensic unit of the Waterford Hospital in St. John’s. As a result, counsel seeks a writ of Habeas Corpus with certiorari in aid to review his detention and, if found to be unlawfully detained, release him from the Waterford Hospital. What led to the Order [ 11 ] The Order of Provincial Court Judge Cole on February 19, 2018 referenced

section 679.93(2) of the Criminal Code but, I find that this is a typographical error and that the Order remanding Mr. Cooper to the custody of the Waterford Hospital pending a hearing of the Review Board was made pursuant to

section 672.93(2). In making this order, Judge Cole had to be satisfied on reasonable grounds that the Accused had contravened or failed to comply with the disposition or an assessment order and that it was appropriate to return the Accused to the Waterford Hospital pending a hearing of the Review Board. [ 12 ] At the Review Board hearing on March 6, 2018, also held pursuant to

section 672.93 of the Criminal Code , Mr. Cooper appeared as did Dr. Nizar B. Ladha as Mr. Cooper’s treating psychiatrist. Dr. Ladha provided a written report of his assessment and gave evidence on cross-examination. This report confirms that Mr. Cooper sees a psychiatrist in the Stephenville area (Dr. Kranenka), once every two months and has been prescribed anti-psychotic medication but has not been completely regular in taking this drug to treat his schizophrenia. [ 13 ] Dr. Ladha was of the opinion and made the recommendation that “Mr.

Cooper should remain on the forensic unit until he is clinically ready for discharge…” and that “Mr. Cooper should remain under the jurisdiction for the Review Board for the present.” [ 14 ] The Review Board also received a written report by forensic mental health co-ordinator, Russell Tuton, which the Review Board found “corroborates the evidence tendered by Dr. Ladha”. [ 15 ] At the time of the Review Board hearing, the Accused had not faced the assault charges arising out of the behaviour which constituted the allegation of breach that brought the Accused back to the Waterford Hospital.

At the hearing before me, it was not disputed that these matters were determined and that there was no requirement that Mr. Cooper be incarcerated as a result of those charges. [ 16 ] In the Board’s written decision, the Review Board chair confirmed that the Board was “satisfied that the Accused’s mental disorder is stable and under control. For that reason we are of the view that he is not of such danger to the safety of the public as to require detention in hospital.” However, as previously indicated, the Order attached stated to have been made pursuant to

section 672.54 (b), (being a discharge on conditions), in effect delayed Mr. Cooper’s discharge until “clinically indicated”. [ 17 ] As such, I accept that it is arguable that the Review Board’s Order could be characterized as an Order for detention in custody in a hospital subject to conditions pursuant to

section 672.54 (

c) instead of an Order for conditional discharge under

section 672.54 (b). [ 18 ] Mr. Cooper has not filed an appeal from the decision of the Review Board as is his right pursuant to

section 672.72. Such an appeal would be directly to the Province’s Court of Appeal and would not be a matter over which this Court has any jurisdiction. authorities cited [ 19 ] As a result of the foregoing facts, counsel for Mr. Cooper seeks an Order in the nature of Habeas Corpus and relies on the

Court of Appeal decision in Abbass v. Western Health Care Corp. , 2017 NLCA 24 given on April 13, 2017 for this Court’s jurisdiction. [ 20 ] In response, however, counsel for Eastern Health relies on a decision from the Court of Appeal of British Columbia, Staetter v. British Columbia (Director of Adult Forensic Psychiatric Services) , 2017 BCCA 68 , released on February 8, 2017, as well as the decision of the Supreme Court of Canada in May v.

Ferndale Institution , 2005 SCC 82 , referenced therein supporting the principle that this Court lacks jurisdiction. [ 21 ] In light of the conflicting authorities on the question of this Court’s jurisdiction, I considered it appropriate to adjourn the proceeding for a few hours to provide this decision on jurisdiction. [ 22 ] On careful consideration I conclude that the Newfoundland and Labrador Court of Appeal’s decision in Abbass is not a binding authority on the point because it is distinguishable on its facts.

The Staetter decision from a different provincial jurisdiction is not binding authority but is persuasive because its facts are very similar to those on the Application before me. The May decision from the Supreme Court of Canada is binding authority but is also distinguishable. However, I find that the principles stated therein provide the appropriate answer to the question of this Court’s jurisdiction. Let me explain. Abbass v. Western Health [ 23 ] Mr. Abbass had been detained by the Royal Newfoundland Constabulary for an assessment under the Mental Health Care and Treatment Act , S.N.L. 2006, c. M-9.1.

The issue engaged before the Court of Appeal was therefore whether “Habeas Corpus, as developed in the modern law in Canada, is available to challenge the legality of an individual’s detention under the Mental Health Care and Treatment Act , S.N.L. 2006, c. M-9.1…in the face of a provision in the legislation that provides a separate means for a detained person to seek release from his or her detention”. [ 24 ] By the time the matter was determined by the Court of Appeal, Mr. Abbass had already been released and the issue was “moot”.

But the Court of Appeal determined that the issue was of such general importance for similar cases in the future that it should nevertheless hear and determine the appeal. [ 25 ] Because of the nature of his detention, Mr. Abbass’ application for Habeas Corpus claimed: 1) that he was not suffering from any mental disorder; 2) the Certificate of Involuntary Admission did not cite any grounds for his detention; 3) his detention was therefore unlawful and not in compliance with the Mental Health Care and Treatment Act ; and, 4) his rights under

section 10 of 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 had been violated. [ 26 ] As is the case here, on the return of the Application, counsel for the hospital raised preliminary questions as to whether Habeas Corpus was appropriate because there was a clearly outlined appeal mechanism available under the Mental Health Care and Treatment Act . In response, counsel for Mr. Abbass took the position that he had been illegally detained without any mental health diagnosis and that accordingly, any alternative review procedures contained in the Mental Health Care and Treatment Act would have no application.

Such procedures, counsel argued, would only have application once a person was properly detained under the Act . Furthermore, it was submitted that the urgency of determining the legality of the initial detention, as opposed to conducting a review of whether he should continue to be detained, justified resort to Habeas Corpus . [ 27 ] The circumstances of Mr. Abbass’ detention at the Waterford Hospital differ from those of Mr. Cooper. Mr. Abbass’ challenge was to the actions taken by the Royal Newfoundland Constabulary in the absence of a diagnosis. Mr.

Cooper challenges the decision of the Review Board which accepted the mental health diagnosis of Dr. Ladha, supported by Russell Tuton.

This is significant. [ 28 ] The trial judge in Abbass , relying on May for the proposition that a court hearing a Habeas Corpus application should decline jurisdiction where the legislature has put in place a separate, complete, comprehensive and expert procedure for review of the detention, declined to accept jurisdiction. [ 29 ] On appeal, our Court of Appeal determined that while there are some limited exceptions to the general rule of applicability of the “great writ of liberty”, this would merely result in a trial judge having a discretion, (but not a duty) to decline to grant the remedy and such a decision would be reviewable on the same standard as any other discretionary decision. [ 30 ] At paragraph 14, the Court of Appeal confirmed that on the return of the writ of Habeas Corpus , the applicant has the burden of proving only the existence of his detention whereas the authority that is doing the detaining, has the burden of establishing that the deprivation of liberty was lawful.

In comparison on most appeals, I accept that the Appellant bears the onus of establishing grounds of appeal. [ 31 ] At paragraph 15, our Court of Appeal determined that where 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.

But even where there is facial validity, and especially where (as is the case here) certiorari is sought in aid, the Court can examine the underlying circumstances of the whole record to determine whether the detention is in fact legal and if it is not, take appropriate action. [ 32 ] Our Court of Appeal acknowledged however the difficulties where the applicant for relief has available to him or her a means under another legal procedure in which to challenge the legality of the detention decision.

In this regard, it characterized the Supreme Court of Canada’s decision in May as having “reinvigorated the Habeas Corpus remedy in the area of concurrent or overlapping jurisdiction” (paragraph 17). [ 33 ] I agree that at paragraph 50, the decision of the majority of the Supreme Court of Canada in May expressed the view that “the exceptions to Habeas Corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well- defined and limited.” However, in the same paragraph, the majority also confirmed the principle upon which counsel for Eastern Health relies today, namely “…in accordance with this court’s decisions, 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 the 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”. [ 34 ] Because the trial judge in Abbass had concluded that there was such a comprehensive scheme in the Mental Health Care and Treatment Act providing for broad rights of review and appeal, the judge felt justified in declining jurisdiction. [ 35 ] Our Court of Appeal, at paragraphs 20-28, comprehensively reviewed the operations of the Mental Health Care and Treatment Act as they relate to the involuntary admission and detention of persons in a hospital psychiatric unit and at paragraph 30,( relying again on the May decision), confirmed that there were five factors to consider when determining whether there was available a complete, comprehensive and expert alternative procedure.

These were: 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. [ 36 ] At paragraph 41, the Court of Appeal concluded that the review procedure available under the Mental Health Care and Treatment Act “does not allow for the type of fulsome review of legality of detention that would be available in a Habeas Corpus application”. [ 37 ] In stark comparison to what the Court of Appeal was required to consider as the “complete comprehensive and expert alternative procedure” in Abbass , I am required to consider the provisions of

Part XX.1 – Mental Disorder of the Criminal Code of Canada and, in particular, the appeal procedure available under

section 672.72 and dispositive powers under

section 672.78. As I discuss later herein, I conclude that these provisions are very different and require that I distinguish the Abbass decision on its facts. Staetter v. British Columbia (Director of Adult Forensic Psychiatric Services [ 38 ] Turning now to the Staetter case relied upon by Eastern Health, the accused therein had been found not criminally responsible by reason of mental disorder for uttering threats and criminal harassment. The British Columbia Review Board had ordered that Mr. Staetter remain in custody and it was this decision that led Mr. Staetter to: 1) make application for Habeas Corpus on July 8, 2016, and 2) appeal the Review Board decision pursuant to

section 672.78 of the Criminal Code . [ 39 ] The British Columbia Court of Appeal determined that the Trial Division Judge had rightfully declined jurisdiction over the Habeas Corpus application given the Review Board appeal provisions in the Criminal Code . It then turned its mind to the appeal from the Review Board’s decision. [ 40 ] I will reference only those sections of the Staetter decision which address the Habeas Corpus issue.

As previously indicated, the British Columbia Court of Appeal relied principally on the Supreme Court of Canada’s decision in May as support for the principle that “a Superior Court of inherent jurisdiction should exercise its Habeas Corpus jurisdiction” … but “should decline to do so in 2 situations” which situations I have previously outlined in addressing the Abbass case. [ 41 ] The British Columbia Court of Appeal held that: …the appeal provisions in

Part XX.1 of the Criminal Code constitute a comprehensive procedure for reviewing an administrative decision, namely the Review Board disposition under which Mr. Staetter is detained. Those provisions give this Court the authority to: correct any errors by the Review Board; review the reasonableness of the Review Board’s decision; and make any order under

section 672.54 of the Criminal Code that the Review Board could make, including an absolute discharge disposition order. [ 42 ] As a result, the British Columbia Court of Appeal concluded that Mr. Staetter had an adequate and appropriate remedy through an appeal under

section 672.72 of the Criminal Code and that the trial judge had rightfully declined jurisdiction on the Habeas Corpus application. [ 43 ] Since the facts of the application before the British Columbia Court of Appeal in Staetter match so closely those before me, I find this otherwise non-binding authority to be highly persuasive. May v. Ferndale Institution [ 44 ] I turn finally to the Supreme Court of Canada’s decision in May .

At issue in that case were the rights of five appellants, prisoners serving life sentences for murder and/or manslaughter who the Correctional Service of Canada (CSC) directed be involuntarily transferred to medium security institutions.

The prisoners brought applications for Habeas Corpus with certiorari in aid directing the responsible correction officials to transfer them back to the minimum security institutions. [ 45 ] As part of the prisoner’s claims they alleged that the CSC had used computer application to assist the classification review process and that their right to procedural fairness had been breached by the failure to disclose the scoring matrix for one of the classification tools, leaving them unable to challenge usefulness of that tool in the decision-making process. [ 46 ] The chambers judge had found that he had jurisdiction to hear the application under his Habeas Corpus jurisdiction and determined the matter concluding that the prisoners had not made out their allegations.

The Court of Appeal dismissed the appeal by the

prisoners but found that the chambers judge should have declined to hear the applications as they should have been heard by the “specialized” federal court, and the prisoners had offered no reasonable explanation for failing to pursue judicial review in federal court. [ 47 ] The Supreme Court of Canada held that the Court of Appeal had erred in barring access to Habeas Corpus on the basis that neither of the two recognized exceptions to the general rule (that the Superior Courts should exercise Habeas Corpus jurisdiction) was applicable. [ 48 ] Thus, the May decision does not squarely address whether the provisions of

Part XX.1 of the Criminal Code represent an exception to the rule that Habeas Corpus should be available. Instead, it addresses decisions of a “correctional” nature. [ 49 ] The May decision does however provide me with the principles I need to apply in this case. Does the Case Fall within Either of the two Exceptions to Discretion [ 50 ] I accept that our Court of Appeal in Abbass determined that this Court has the discretion but not a duty to deny jurisdiction on a request for a writ of Habeas Corpus. [ 51 ]

Section 672.72 sets out the Applicant’s right of appeal on questions of fact, law and mixed fact and law. [ 52 ]

Section 672.78(1) outlines the powers of the Court of Appeal on an appeal against a disposition or placement decision. The Court of Appeal may set aside an order made by the review board where it is of the opinion that: (

a) It is unreasonable or cannot be supported by the evidence; (

b) It is based upon a wrong decision on a question of law; or (

c) There was a miscarriage of justice. [ 53 ]

Section 672.78(3) explains that the orders that the Court of Appeal may make include: (

a) any disposition under s. 672.54 or any placement decision that the review board could have made; (

b) a reference back to the court or review board for rehearing in whole or in

part in accordance with any directions the Court of Appeal considers appropriate; or (

c) any other order that justice requires. [ 54 ] Thus, the Court of Appeal may direct an absolute discharge, conditional discharge, or detention in custody in a hospital subject to such conditions as it considers appropriate. These are broad remedies, some of which are not available on a request for a writ of Habeas Corpus . [ 55 ] In light of this, I will now consider the five factors outlined in May to determine if there is available a complete, comprehensive and expert alternative procedure for Mr. Cooper. Choice of Remedies and Forum 1. On Habeas Corpus , the only remedy available is to order release or to deny release. In comparison,

section 672.78 confirms that the disposition powers of the Court of Appeal on an appeal under

section 672.72 are much broader and include any disposition available to the Review Board under

section 672.54 . Given the paramount consideration of the safety of the public, I would not characterize the remedies under a writ of Habeas Corpus and an appeal under

section 672.72 as equivalent. Expertise of the Superior Courts 2. This Court has less expertise in such matters (involving mental health issues and the work of the Review Board) than the Court of Appeal because the Court of Appeal has exclusive jurisdiction on appeals in this respect. Timeliness of Remedy 3. As to timeliness of remedy, I am aware that Mr. Cooper has not filed an appeal and that under

section 672.72(2) he had only 15 days to do so but this can be extended. Since he has already filed his Habeas Corpus application, any decision from this Court would obviously be given much earlier than the Court of Appeal could possibly address a future appeal. However,

section 672.72(3) requires the Court of Appeal to proceed expeditiously and sit out of term. Local Access to Remedy 4. Since Mr. Cooper is at the Waterford Hospital in St. John’s, there is no issue of local access to remedy at the Court of Appeal. Nature of Remedy and Burden of Proof 5. I have already expressed my view on remedy. As to onus, I agree that Mr. Cooper’s onus on a request for Habeas Corpus is only to establish detention. Then the onus shifts to the Heath Authority to establish that his detention was lawful. On an appeal, Mr. Cooper

bears the full onus. conclusion [ 56 ] The Supreme Court of Canada, at paragraph 50 of May explained that a court should decline to exercise discretion to proceed with Habeas Corpus if either of two exceptions are present. [ 57 ] Considering the five factors above, I conclude that

Part XX.1 of the Criminal Code provides for a forum and remedies before a superior court with exclusive jurisdiction and expertise which superior court is required to act expeditiously and which has very broad dispositive powers. Of the five factors addressed in May , the only one that speaks in favour of the exercise of discretion is the issue of the onus of proof. I do not find that compelling. [ 58 ] I conclude that one, if not both exceptions to the exercise of discretion expressed by the Supreme Court of Canada at paragraph 50 of May apply here. [ 59 ] Firstly, a statute (namely

Part XX.1 of the Criminal Code of Canada and in particular sections 672.72 and 672.78 ) confers exclusive jurisdiction on the Court of Appeal to correct the decisions of the Review Board on questions of fact, law or mixed fact and law and release the applicant, if need be. Secondly, the legislator has put in place through

Part XX.1, a complete, comprehensive and expert procedure for the review of Orders of the Review Board. [ 60 ] For these reasons, I conclude that I should decline to exercise the discretion that exists on Mr. Cooper’s Application for a writ of Habeas Corpus and I confirm that Mr. Cooper remains under the jurisdiction of the Review Board. [ 61 ] I note that the Review Board has, in accordance with its supervisory jurisdiction over Mr. Cooper, required him to reappear for a hearing on May 1, 2018, which I understand will represent a review under

section 672.82(1). [ 62 ] The provisions of

Part XX.1 also enable the hospital personnel to refer the matter back to the Review Board for an early hearing if the psychiatric team concludes it is clinically indicated. _____________________________ Gillian D. Butler Justice