2015 QCCA 1509, 2015 QCCA 1509

Centre intégré de santé et de services sociaux de l'Abitibi-Témiscamingue c. M.A. 2015 QCCA 1509 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC N o : 200-10-003132-151 (SAS-Q-202207-1406) (635-01-011811-149) MINUTES OF THE HEARING DATE : September 18, 2015 CORAM : THE HONOURABLE ALLAN R. HILTON, J.A. (JH5108) JEAN BOUCHARD, J.A. (JB3398) MARIE ST-PIERRE, J.A. (JS1012) APPELLANT ATTORNEY CENTRE INTÉGRÉ DE SANTÉ ET DE SERVICES SOCIAUX DE L’ABITIBI- TÉMISCAMINGUE Me ISABELLE CHARRON (AC0HD9) (ABSENT) (Bigué, avocats) RESPONDENT ATTORNEY M. A.

Me MARIE-CLAIRE LEMIEUX (AU9237) (ABSENT) (Centre communautaire juridique Abitibi- Témiscamingue) Impleaded party ATTORNEY CRIMINAL AND PENAL PROSECUTING ATTORNEY

In appeal of a judgment rendered on April 1, 2015 by the Quebec Administrative Tribunal acting in its capacity as a Review Board pursuant to s. 672.82(1) Cr.C . NATURE OF THE APPEAL : Mental disorders Clerk : Marie-Ann Baron (TB3964) Court Room : 4.33 HEARING 09 h 30 Continuation of September 16, 2015 hearing; Judgment. (

s) Court Clerk BY THE COURT JUDGMENT [ 1 ] This is an appeal from a decision of the Quebec Administrative Tribunal (composed of Mtre Robert Borduas, Dr. Jacques Labrie and Mme Gertrude Rochelin) acting in its capacity as a Review Board pursuant to s. 672.82(1) Cr.C . rendered on April 1, 2015 by which it declared that the respondent M.

A. was still unfit to stand trial, and maintained his detention at the CSSS A (Town B), subject to the conditions therein specified. [ 2 ] The conclusions sought in appeal are that the Board's decision be set aside in part, [1] that the Court order a new hearing before different Board members than those named above, and that at a new hearing, it be ordered that the appellant be allowed to call a psychiatrist as a witness.

Counsel for the respondent agrees with the conclusions the appellant solicits, and to complete the picture, the Crown did not participate in the appeal. [ 3 ] In order to appreciate the decision under review and the basis of the appeal, it is first important to set out some underlying facts.

[ 4 ] The respondent, an Inuit, was born in 1977. He has an extensive criminal record dating back to 1996. Many of the offences for which he was convicted involve crimes of violence. He has been fined on some occasions, and on others he has received custodial sentences in prisons and a penitentiary. Apart from his native language, he speaks adequate conversational English and no French.

At the relevant time, he was unmarried, the father of two children, and unemployed, although he had worked in the construction industry. [ 5 ] On March 13, 2014 the respondent was charged with the following six counts in an indictment: 1. On or about March 12, 2014, in Town A, District of Abitibi, did commit an assault on G. L., committing thereby the indictable offence provided by

section 266a) of the Criminal Code . 2. On or about March 12, 2014, in Town A, District of Abitibi, did knowingly utter a threat to cause death or bodily harm to G. L., committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 3. On or about March 12, 2014, in Town A, District of Abitibi, did knowingly convey to Ma. F. a threat to cause death or bodily harm to G. L., committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 4. On or about March 12, 2014, in Town A, District of Abitibi, did commit an assault on G. B., committing thereby the indictable offence provided by

section 266a) of the Criminal Code . 5. On or about March 12, 2014, in Town A, District of Abitibi, did commit an assault on Me. R., committing thereby the indictable offence provided by

section 266a) of the Criminal Code . 6. On or about March 12, 2014, in Town A, District of Abitibi, did knowingly utter a threat to cause death or bodily harm to Me. R., committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . [2] [ 6 ] Bigué, J.C.Q. declared the respondent unfit to stand trial when he appeared on May 29, 2014, and ordered him to be detained at the Hôpital psychiatrique de Malartic. A Review Board subsequently determined that he should be detained there, without the right to leave the premises unless accompanied by a member of the institution's personnel. That Review Board also ordered that steps be taken to transfer him as soon as possible to the Douglas Mental Health University Institute in Montreal, an exercise that proved to be unfruitful. [ 7 ] On January 16, 2015, Dr.

Jean-Michel Beau prepared an extensive psychiatric evaluation for the Review Board. In it, he took note of a severe cranial trauma with sub-dural and sub-arachnoid haemorrhages that occurred in May of 2013 as the result of an all- terrain vehicle accident while the respondent was intoxicated. He concluded nevertheless that the respondent's level of understanding was sufficient to be able to stand trial, and made the following recommendation: M.

A... présente une pathologie neurologique sévère, suite à un accident, qui est venu aggraver un trouble de personnalité qui était associé à un trouble d'abus de substances psychoactives et d'alcool. Les traitements pharmacologiques proposés après son accident, de même que l'encadrement thérapeutique ont permis de montrer que l'on était capable de limiter son impulsivité et son agressivité et même que monsieur A... pourrait éventuellement bénéficier de mesures de réadaptation afin de voir quelles seraient ses capacités d'améliorer son autonomie.

Actuellement, le centre hospitalier dans lequel nous sommes ne peut lui offrir ces services.

C'est pourquoi je recommande, quelle que soit la décision du Tribunal administratif du Québec, qu'il puisse être orienté vers un milieu de réadaptation qui pourrait à la fois lui apporter l'encadrement dont il a besoin et lui faire bénéficier d'apprentissages pour développer son autonomie. [ 8 ] The Review Board hearing was held at the Board's initiative on January 20, 2015 pursuant to s. 672.82(1) Cr.C ., which provides as follows: 672.82(1) A Review Board may hold a hearing to review any of its dispositions at any time, of its own motion or at the request of the accused or any other party. 672.82(1) La commission d’examen peut, en tout temps, tenir une audience de sa propre initiative ou à la demande de l’accusé ou de toute autre

partie pour réviser ses propres décisions. [ 9 ] The decision thus rendered is the one under appeal. [ 10 ] At the hearing, both Dr. Beau and the respondent testified. [ 11 ] Dr. Beau's testimony dealt in the main with his management of the respondent and his interaction with him. His testimony confirmed the existence of the severe neurological problems afflicting the respondent, and included the identification of the medication he was being administered, as well as his day to day activities, including mood swings. [ 12 ] The only other witness to testify was the respondent.

His testimony focussed largely on his ability to understand and appreciate the legal challenges he was facing, all with a view to determine if he was remained unfit to stand trial. It was evident that the respondent had severe memory problems and would have difficulty instructing counsel. [ 13 ] After the hearing, at the request of the Review Board, Mme Marianne Gagnon-Bourget, an employee of the CSSS A, prepared a report to document the steps she had recently taken in respect of the respondent.

Mme Gagnon-Bourget had not testified at the hearing. [ 14 ] In her report, she confirmed that from her perspective, two of the respondent's rights were not being respected: that of obtaining

services that were appropriate to his condition; and, that of not being able to obtain services in English. [3] Mme Gagnon-Bourget then set out the details of her activities in respect of the respondent, which included unsuccessful attempts to persuade the Douglas Institute to accept the respondent's transfer. [ 15 ] The basis put forward to her for such refusal was that the Douglas Institute was not equipped to treat someone with his neurological problems, and that to the extent that it had a budget to look after the Inuit population, it was only for mental health problems and not those of neurological origin.

It was further explained that the Montreal Neurological Institute [4] or the Centre de réadaptation Lucie-Bruneau had been designated to look after neurological problems of the Inuit population. Mme Gagnon-Bourget wrote that she was pursuing other options along those lines. [ 16 ] After describing the status of the file to date, including a reproduction of Dr.

Beau's January 16, 2015 report, the Review Board decision enumerated his findings, and noted that during his testimony, he described the unsuccessful efforts that had been undertaken to effect the respondent's transfer to the Douglas Institute with a view to providing rehabilitation services that were unavailable at the institution where he was being treated. The decision further mentioned that the Douglas Institute had declined because it perceived the respondent's problems were neurologic, which it did not treat. Dr.

Beau also repeated the conclusion in his written report that he perceived the respondent was fit to stand trial. [ 17 ] After summarising the respondent's testimony, the Review Board mentioned that his counsel had indicated that she would not be able to adequately represent him at a trial, since he did not understand the nature of the charges against him.

There followed the assertion of the appellant's counsel that from its perspective, he was fit to stand trial. [ 18 ] The Review Board then explained why in its view the respondent remained unfit to stand trial, and that his detention at the CSSS A at Town B remained necessary. Finally, and this is the nub of the appeal, the Review Board considered it would be premature to issue the order sought to transfer the respondent to the Douglas Institute in view of the efforts being undertaken to best determine at which facility the respondent could be transferred.

Once that facility had been identified, the Review Board could be re-convened to order the required transfer. [ 19 ] It will thus be seen that the Review Board's decision was a temporary measure, awaiting further developments that would better serve the respondent's needs. [ 20 ] The Court's ability to intervene is circumscribed by s. 672.78(1) Cr. C ., which is to the following effect: 672.78

(1) The court of appeal may allow an appeal against a disposition or placement decision and set aside an order made by the court or Review Board, where the court of appeal is of the opinion that (

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

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

c) there was a miscarriage of justice. 672.78

(1) La cour d’appel peut accueillir l’appel interjeté à l’égard d’une décision ou d’une ordonnance de placement et annuler toute ordonnance rendue par le tribunal ou la commission d’examen si elle est d’avis que, selon le cas :

a) la décision ou l’ordonnance est déraisonnable ou ne peut pas s’appuyer sur la preuve;

b) il s’agit d’une erreur de droit;

c) il y a eu erreur judiciaire. [ 21 ] It will thus be seen that the scope of the Court's ability to intervene is very much limited. In this instance, the appellant argues that the Review Board's failure to order the respondent's transfer to the Douglas Institute is unreasonable.

In adjudicating the appeal, the Court must place itself in the position of the Review Board with the evidence it had before it on the date of the hearing, supplemented by the subsequent letter it received from Mme Gagnon-Bourget dated the same day as the hearing. [ 22 ] In this regard, it is useful to reproduce the concluding paragraphs of the Review Board's decision, which follow its recitation of the follow-up letter from Mme Gagnon-Bourget that is summarized in paragraphs [14] and [15] above: [40] Lors de l’audience, on demande à la Commission de transférer tout de même le dossier de l’accusé à l’Institut universitaire en santé mentale Douglas ou, tout simplement, à Montréal.

On indique que c’est dans cette région que l’accusé peut obtenir plus de services adaptés à sa condition, ce qui lui permettrait de mieux évoluer. [41] De l’avis de la Commission, cette demande est prématurée. Au jour de l’audience, il appert que des démarches sont en cours afin de trouver un endroit où l’accusé pourra recevoir des soins adaptés à sa condition et favorables à sa réinsertion sociale, tout en assurant la sécurité du public.

À défaut de connaître le milieu où l’accusé pourra recevoir de tels soins, on ne peut procéder à un transfert interhospitalier que ce soit à l’Institut universitaire en santé mentale Douglas ou ailleurs. [42] La Commission ajoute que ce n’est qu’au moment où le plan de traitement de l’accusé sera défini et qu’un milieu de vie aura été identifié que la Commission pourra être rappelée et qu’un transfert interhospitalier pourra s’effectuer vers un hôpital désigné ou un hôpital désigné de proximité.

[ 23 ] The appellant's essential position is that the Review Board decision to refuse to transfer the respondent to the Douglas Institute is unreasonable, despite the evidence that his predominant medical problem is neurologic, a condition that institution does not treat, and that efforts were then underway to find a medical facility at which the respondent could receive the kind of treatment his circumstances require. [ 24 ] The Court cannot subscribe to the appellant's submission, despite the clear necessity that steps be taken without delay to ensure that respondent's situation is redressed promptly.

This is all the more so in light of the conclusions it seeks in appeal by which it simply asks the Court to order the holding of a new hearing before a differently constituted Review Board at which a psychiatrist would be heard. Moreover, had the Review Board ordered the respondent's transfer to the Douglas Institute, a further Review Board hearing would inevitably have to be convened to determine to which health facility the respondent should be transferred given the respondent's primary neurological problem. [ 25 ] In this regard, the following provisions of the Criminal Code are worth noting: 672.81

(1) A Review Board shall hold a hearing not later than twelve months after making a disposition and every twelve months thereafter for as long as the disposition remains in force, to review any disposition that it has made in respect of an accused, other than an absolute discharge under paragraph 672.54( a ). 672.82

(1) A Review Board may hold a hearing to review any of its dispositions at any time, of its own motion or at the request of the accused or any other party.

(1.1) Where a Review Board holds a hearing under subsection (1) of its own motion, it shall provide notice to the prosecutor, the accused and any other party.

(2) Where a party requests a review of a disposition under this section, the party is deemed to abandon any appeal against the disposition taken under

section 672.72. 672.81

(1) La commission d’examen qui a rendu une décision à l’égard d’un accusé tient une nouvelle audience au plus tard douze mois après la décision et à l’intérieur de chaque période de douze mois suivante tant que la décision rendue est en vigueur, à l’exception de la décision prononçant une libération inconditionnelle en vertu de l’alinéa 672.54a). 672.82

(1) La commission d’examen peut, en tout temps, tenir une audience de sa propre initiative ou à la demande de l’accusé ou de toute autre

partie pour réviser ses propres décisions.

(1.1) Dans le cas où l’audience est tenue de sa propre initiative, la commission d’examen en donne avis au poursuivant, à l’accusé et à toute autre partie.

(2) Lorsqu’une révision d’une décision visée par un appel interjeté par une

partie en vertu de l’article 672.72 commence à la demande de cette partie, l’appel est réputé avoir été abandonné. [ 26 ] Without having to characterize the Review Board's decision as unreasonable, there are adequate statutory means to bring the matter of the respondent's treatment to a new Review Board hearing instead of launching an appeal. Presumably, this is what either the appellant or counsel acting on behalf of the respondent can and will do as soon as the circumstances permit.

In any event, given the evidence before it, the Court has no doubt that the conclusion the Review Board reached was one of the possible outcomes of the hearing, which means that it was not unreasonable. [ 27 ] In reaching this conclusion, it follows that the appeal should be dismissed. [ 28 ] That being said, the case of the respondent cannot be allowed to languish in a perpetual administrative imbroglio between health centres in different regions. It is obvious, as Mme Gagnon-Bourget observed in her letter of January 20, 2015, that his statutory rights under

An Act respecting health and social services [5] to services in English are not being respected, despite the best efforts of the personnel presently attending him. Moreover, as the respondent's medical care will be enhanced by being transferred to whichever designated institution in Montreal is best suited to treat him, the time has come to do so without further delay.

The question to be decided should therefore concentrate on which designated institution in Montreal will best serve that purpose. [ 29 ] The Court presumes the parties and the next Review Board seized of the respondent's case will act accordingly and with all deliberate speed. FOR THESE REASONS, THE COURT : [ 30 ] DISMISSES the appeal.

ALLAN R. HILTON, J.A. JEAN BOUCHARD, J.A. MARIE ST-PIERRE, J.A.