) ) P. S. Applicant – v. –, 2013 ONSC 2970

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code :

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). 486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION : P.S. v. Her Majesty the Queen, 2013 ONSC 2970 COURT FILE NO.: 07-1177 DATE: 20130523 IN THE MATTER OF the Habeas Corpus Act , R.S.O. 1990, c.H.1 AND IN THE MATTER OF the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) P. S. Applicant – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, CENTRE FOR ADDICTION AND MENTAL HEALTH, ROYAL OTTAWA HEALTH CARE GROUP. ST. JOSEPH’S HEALTH CENTRE, LONDON, ATTORNEY GENERAL FOR ONTARIO and WAYPOINT CENTRE FOR MENTAL HEALTH CARE Respondents ) ) ) ) ) ) ) ) ) )))) ) ) ) ) ) ) ) ) M. Perez and K. Steward, for the Applicant

) ) H. Schwartz and J. Hunter, for the Respondents Her Majesty the Queen in Right of Ontario and the Attorney General of Ontario S. Metzler and K. Frelick, for the respondent Waypoint Centre for Mental Health Care ) ) ) HEARD: December 13, 14, 2012; and January 30, 31, 2013 APPLICATION pursuant to sub rules 14.05 (3) (d), 14.05 (3)(

g) and 14.05 (3)(g.1) of the Rules of Civil Procedure McCARTHY J.

Nature of Application [ 1 ] This is an application for an order that a writ of habeas corpus ad subjiciendum (“habeas corpus”) issue directing Waypoint Centre for Mental Health (“Waypoint”) to bring P.S. (the “Applicant”), a person detained in custody, before a presiding judge together with the cause of his detention so that the court may determine the sufficiency and lawfulness of his detention. [ 2 ] The Applicant seeks a declaration that his rights under ss. 7 , 9 , 10(a) , 12 , and 15(1) of the Canadian Charter of Rights and Freedoms (“the Charter ”) have been infringed by both Her Majesty the Queen in Right of Ontario (“HMQ”) and Waypoint.

To the extent that his Charter rights have been infringed, the Applicant seeks remedies pursuant to s. 24 (1) of the Charter . [ 3 ] The Applicant also seeks remedies pursuant to s. 52 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. In particular the Applicant seeks a declaration that the involuntary detention and review provisions in ss. 20(1) , 20(3) , 20(4) , 20(5) , 34 , 39(1) , 41(1) , 41(2) and 41(3) of the Mental Health Act , R.S.O. 1990, c.M.7, amended 2010, c.1, Sched. 17 (“MHA”) are inconsistent with ss. 7 , 9 , 12 , and 15(1) of the Charter and are of no force or effect.

Mental Health Centre Penetanguishene, Waypoint, and Oak Ridge [ 4 ] “Oak Ridge”, a division of the Mental Health Centre Penetanguishene (“MHCP”), was the name given to the secure provincial forensic facility operated by HMQ at Penetanguishene, Ontario. [ 5 ] On December 15, 2008, ownership and management of the MHCP was divested from HMQ to Waypoint, a newly created public hospital corporation.

The time period between January 5, 1996 and December 15, 2008 is hereinafter referred to as the “pre- divestment period.” The time period from December 15, 2008 to present is hereinafter referred to as the “post-divestment period”. Oak Ridge still refers to the building at Waypoint which houses the secure provincial forensic programs formerly operated by HMQ. The Order for a bifurcated Application

[ 6 ] The Court of Appeal ordered a bifurcation of this Application on June 30, 2008. That bifurcation order has become a matter of contention between the parties. Both agree that the present stage of the Application should address the issues of the constitutional validity of the MHA and whether there have been any infringements of the Applicant’s Charter rights. [ 7 ] For the Respondents, the exercise is to end there. They contend that the second part of the bifurcated Application would only have to consider remedies upon a finding of Charter infringements made at this stage.

Those remedies might include determinations of the Applicant’s service and security needs and the measures required to ensure that these were implemented. However, these are needs and measures which might by necessity become the responsibility of one of the Respondents not participating in this first part of the Application but who, as potential receiving facilities, would be obliged to provide them.

Accordingly, the adjudication of that aspect of the Application should await the second part of the bifurcated proceeding. [ 8 ] The Applicant contends that the order in question states clearly that a determination of the Applicant’s service and security needs is to be made at this first stage of the proceeding.

The Applicant agrees that any implementation orders must necessarily await part two of the Application, when the balance of the Respondents will be afforded an opportunity to respond to the remedy portion of the Application. [ 9 ] Paragraph 1 of the Court of Appeal order reads as follows: The application will proceed, for the time being, against Her Majesty the Queen and the Attorney General for Ontario only through to a determination of whether a Charter breach has occurred and a determination of the service and security needs of the Appellant. [Emphasis added.] [ 10 ] Counsel for HMQ urged the court to read that paragraph in the context of the entire order and in light of the Amended Notice of Application.

HMQ reminded the court that the purpose of the bifurcation order was to obviate the remedy stage of the Application in the event that this court was to uphold the MHA as valid legislation and was unable to find any Charter infringements. In such an event, a determination of the Applicant’s service and security needs would be unnecessary: a ruling that the MHA is constitutionally valid combined with a finding that there has been no Charter infringement would effectively bar entitlement to a remedy.

Implicit in such a ruling would be a determination that the MHA provides a complete code and a process by which the Applicant can seek redress for administrative decisions taken. In addition, the Respondents contend that any infringements of the Applicant’s Charter rights have taken place in the past. There is no ongoing or systemic infringement.

Furthermore, any concern for the gap in the legislative scheme for mandatory facility transfer has now been addressed by the May 2010 amendments to the MHA, which effectively empower the Consent and Capacity Board (the “CCB”), upon application, to order the transfer of an involuntary patient to another facility. [ 11 ] I find that the first part of the bifurcated Application should be limited to a determination of the constitutional validity of the MHA and a determination of whether the Applicant has suffered infringements of his Charter rights.

When read contextually, I find that paragraph 1 of the order of the Court of Appeal directs that “a determination of the service and security needs of the appellant” would only follow upon a finding of a Charter infringement.

In the absence of such an infringement, then findings of service and security needs might not be necessary or even possible. [ 12 ] In arriving at this conclusion, I have considered the following: first, when read together with the balance of the order, it is apparent that the remedy portion of the Application was intended to proceed on notice to the prospective destination facilities/service providers.

In my view, it would be improper to make findings of service and security needs without the input of these prospective destination facilities/service providers who might wish to take a position on the feasibility of any proposed or contemplated service or security measure at their respective facilities. [ 13 ] Second, adjudicating on the issues of service and security needs at the same time as the issue of remedy for a Charter infringement would be the most efficient and economical use of judicial time and the court’s resources.

Requiring that certain services and security arrangements be implemented may form part of a remedial order consequent upon a Charter infringement. [ 14 ] Third, a determination of service and security needs is not among the nine heads of relief sought in the Amended Notice of Application, dated November 8, 2011. While subparagraph 1(

h) of the Notice makes a claim for such further and other relief as the Court may permit, it is clear from subparagraph 1(

d) that a determination of service and security needs would only follow upon a finding of a Charter infringement and then only following the conclusion of certain assessments ordered by the court consequent upon that infringement. Subparagraph of 1 (

d) of the Notice reads, in part, as follows: To the extent that the applicant’s Charter rights have been infringed, he seeks remedies under subsections 10(

c) and 24 (1) of the Charter , including but not limited to the following: .... [ 15 ] The paragraph then sets out five items of specific relief sought, including an order for assessments to determine the degree of risk posed by the Applicant and the level of institutional security that is required, and, depending on the findings in those mandated assessments, an order for a transfer to a less secure psychiatric facility together with specific ASL/English

interpretation and outpatient services. This court must assume that the parties would only have sought an order from an appellate court which was within the parameters of the relief being sought in the Application, unless that originating process was amended. [ 16 ] Fourth, there is no provision in the MHA for specific treatment, services, or security arrangements.

In the absence of a Charter infringement or a finding that the MHA is not valid legislation, either of which might oblige the court to fashion a remedy in an effort to cure the wrong, minimize the effect of an infringement or to provide a remedy in a void created by invalid legislation, I am not persuaded that this court can or should usurp the discretion exercised by the medical professionals responsible for Applicant’s treatment. Courts have traditionally shown deference to those physicians and other health care professionals responsible for proposing and administering treatment to patients.

An individual’s treatment plan is developed by one or more health practitioners. There should be a

general reluctance to compel a physician, health care professional or hospital to administer treatment. Physicians and other health professionals are required to draw upon their professional knowledge, skill, and experience to make assessment and treatment decisions to the best of their ability: Centre for Addiction and Mental Health v Ontario , 2012 ONCA 342 , 111 O.R. (3d) 19. [ 17 ] Fifth, it is evident from the record that the Court of Appeal did not adjudicate on the bifurcation issue.

While the Court allowed the appeal before it, the attachment to the order for bifurcation, which contains the wording under scrutiny here, was the creation of counsel for the parties. While every order of the Court of Appeal is binding on this court and requires deference and respect, a procedural order made on consent must be viewed in the context in which it was made. In my view, faced with competing

interpretations of the intention of the order and in the absence of words of adjudication from an appellate court to assist this court in it analysis, the manner in which relief is sought in the originating process should be given a great deal of weight. The amended Notice of Application clearly states that the moving party is seeking findings on service and security needs only following a finding of a Charter infringement. [ 18 ] Sixth, Waypoint was not added as a party to this Application until November 8, 2011, after the proceedings before the Court of Appeal were concluded.

Accordingly, Waypoint had no input into the wording of the order in question. It is noteworthy that paragraph 1 of the order directs that the Application is to proceed against only HMQ and the Attorney General for Ontario. [ 19 ] Finally, the court has the obligation and the right to control its own process. I am not prepared to make findings of fact in regards to the service and security needs of the Applicant, which would undoubtedly impact on the absent Respondents’ interests, without a complete evidentiary record.

That evidentiary record would surely include responding materials from those parties not participating in the Charter and constitutional part of the Application. Background – P.S. [ 20 ] The Applicant, Mr. P.S., was born on September 12, 1958. He suffers from pre-lingual deafness. He did not learn to speak or understand the English language before becoming deaf. Mr. Scott experienced a tumultuous childhood, received limited formal education and developed only limited sign language skills. [ 21 ] P.S. converses using a version of Signed English rather than pure American Sign Language (“ASL”).

ASL is recognized as being the predominant sign language of deaf communities in the United States and the English speaking parts of Canada. [ 22 ] P.S. was the victim of childhood sexual abuse. He came under the auspices of child protection legislation and spent much of his childhood in foster care. He was convicted of five sexual offences and two non-sexual offences during the ten year period between 1982 and 1992. He served a forty-five month term of incarceration at Kingston Penitentiary in the early 1990s.

After serving his sentence, but before his release, the Applicant was assessed by a consultant psychiatrist. On the strength of a Form 1 completed under s. 15 of the MHA, he was admitted to Oak Ridge on January 5, 1996. A Violence Risk Appraisal analysis conducted in November of 1997 determined that the Applicant fell into the second highest of nine categories for violent recidivism. Testing administered in 2004 resulted in a similar rating. An independent risk management assessment was arranged by the Applicant’s legal counsel with Dr. Dana Anderson in early 2009.

The overall conclusion was that the risk of sexual recidivism remained high. [ 23 ] The Applicant remains at Waypoint. According to his treatment team, his psychiatric condition remains stable. A current diagnosis of Pedophilia (sexually attracted to males, exclusive type) continues to apply. The treating psychiatrists have determined that the Applicant remains a risk to others based upon his sexual deviance, his lack of sustained insight, and his history of offenses against children. Specialized testing instruments have established that the Applicant is statistically likely to reoffend.

The Sex Offender Risk Appraisal Guide (SORAG) placed the Applicant in the second highest category of risk for violent recidivism. Involuntary Status of Applicant [ 24 ] For the purposes of this Application and the MHA, the parties agree that P.S. should be considered an involuntary patient as defined under s.1 of the MHA. The Applicant’s Position [ 25 ] The Applicant contends that his status as an involuntary patient at MHCP and Waypoint these last sixteen years has resulted in him being warehoused in a maximum security facility.

This has resulted in a life sentence without safeguards, an unjustified and indefinite detention during which he has been deprived of his liberty. He has been denied his profound, natural and human rights. He has been afforded insufficient protections. Efforts to address and accommodate his disability have been slow, cumbersome, and insufficient. Moreover, the Applicant’s deafness leaves him in a prison of silence. Deaf appropriate services (“DAS”) have been denied or only sporadically provided.

Accordingly, he has been deprived of the very tools that might have allowed him to break that silence, improve his situation, and end his detention. [ 26 ] The Applicant further contends that the involuntary committal review mechanisms in the MHA are entirely inadequate to manage the assessment, treatment, rehabilitation, and community reintegration of long-term detainees or detainees with specialized needs. Procedural and substantive remedies under the MHA are limited to those that may be granted by the CCB, an administrative tribunal with very circumscribed jurisdiction.

The Applicant has been detained in circumstances of extreme deprivation of his liberty: neither his unique treatment needs nor public safety concerns have justified maximum security detention. There is no principled reason why civilly detained patients should not be afforded the utmost liberty compatible with their situation. The MHA, though remedial in nature, simply does not envision the type of detention endured by this Applicant.

The Applicability of the Charter to Waypoint [27] A preliminary issue was raised as to whether the Charter would apply to Waypoint. The position of the Applicant wasstraightforward: the Charter would apply to Waypoint regardless of the divestment because it has been charged with implementing alegislative scheme under the MHA. In Eldridge v British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624,the Supreme Court held that the Charter applies to private entities when such entities are implementing a specific governmental policy orprogram.

The Charter has been held to apply to a private entity where that entity undertakes actions that involve a power of statutorycompulsion not possessed by private individuals. (See B.(C.) v. Sawadsky, 2005 CarswellOnt 4870 (S.C.), aff’d by (ON CA), 82 O.R. (3d) 661 (C.A.), leave to appeal refused [2006] S.C.C.A. No. 479). [28] For its part, HMQ simply offered that following divestment, Waypoint, as a new public hospital incorporated under the PublicHospitals Act, R.S.O. 1990, c. P. 40, became autonomous from the Ontario government.

Day to day operational and clinical decisionsceased to be the responsibility of any government body, including the Ministry of Health or the Local Health Integration Networks(“LHINs”). In short, Waypoint is a non-government actor. It was apparent, however, that HMQ’s position was designed to distanceitself from responsibility for any Charter infringements in the post-divestment period, rather than to convince the court that the Charterwould not continue to apply to Waypoint’s actions. [29] Waypoint’s position was more nuanced.

It acknowledged that the Charter applies to its actions insofar as they relate to theApplicant’s involuntary detention under the MHA. Waypoint also acknowledged that the Charter would apply to its actions in relationto the provision of sign language

interpretation to the Applicant in connection with “significant therapeutic interactions”. While adefinition for that term remains a point of contention, it was employed before me to encompass the following: physician consultationsand discussions relating to the Applicant’s medications and treatment; requests, meetings, or assessments dealing with possible transfer,medications, or treatment; formal assessments with psychiatrists, psychologists, or other health professionals; and formal group orindividual psychotherapy sessions.

I am prepared to accept that definition as appropriate and the use of that term as helpful to thisexercise. [30] Waypoint went on to argue that the Health Insurance Act, R.S.O. 1990, Ch. H. 6 (the “HIA”), does not ensure comprehensivehealth care coverage and does not provide for a number of products and services that may be required by disabled persons. In addition,the MHA does not address health service delivery or the manner by which such health services are to be provided.

Accordingly, theApplicant has not demonstrated a direct and precisely-defined connection between a specific government policy or program andWaypoint’s impugned conduct. Waypoint asserts that the Charter cannot be said to apply to private activities even if they are healthcare related services. It certainly cannot apply to the Applicant’s day to day, social rehabilitation, vocational and educational activities,or to assessments, services or other matters that are not subject to a specific governmental policy or program.

This must especially be thecase with services which arise out of treatment decisions, which are subject to the discretion of a treating health care professional. Lacking the requisite skill, knowledge, and expertise possessed by health care professionals, courts have been reluctant to fetter theformer’s discretion in the treatment of patients. [31] In my view, this restricted view of Charter application to Waypoint’s provision of services is the preferable approach.

TheCourt in Eldridge emphasized the importance of ensuring effective communication between a doctor and patient when medical servicesrequired by legislation were being provided. The effective communication standard is a flexible one and will take into considerationsuch factors as the complexity and importance of the information to be communicated, the context in which the communications willtake place and the number of persons involved.

In my view, Eldridge cannot be relied on for the proposition that there is a constitutionalrequirement to provide a long-term civilly detained psychiatric patient with DAS for the purposes of daily living. In the Applicant’scase, daily living encompasses his time in the woodworking shop or the “Pit Stop”, time spent in the common room, social interactionwith other patients, and other day-to-day, non-therapeutic activities. [32] I find that the Charter does apply to Waypoint’s handling of the Applicant, but only to the extent that Waypoint is exercisingits duties and obligations under the MHA.

This would include significant therapeutic services and interaction. While no services aremandated or guaranteed by the legislation, I am the view that ensuring effective communication for significant therapeutic services andinteraction forms part of the implied and integral duties and obligations of the entity exercising the statutorily granted power of detentionover the patient.

In line with Eldridge, however, what constitutes effective communication would depend on the mode ofcommunication, the particular abilities of the patient, and the complexity, importance and context of the subject services or interaction. This is the flexible approach called for in Eldridge. Habeas Corpus [33] As a general rule, habeas corpus is available to challenge unlawful deprivations of liberty and operates to protect individualsagainst wrongful restraints of liberty. This court’s jurisdiction to award a writ of habeas corpus has been codified in Ontario in theHabeas Corpus Act, R.S.O. 1990, c.

H.1. [34] Courts have declined to exercise their habeas corpus jurisdiction in circumstances where there exists a comprehensive schemeproviding for broad rights of review and appeal. As stated by our Court of Appeal in Peiroo v. Canada (Minister of Employment andImmigration) (1989), (ON CA), 69 O.R. (2d) 253 at p. 261-62, leave to appeal denied, [1989] S.C.C.A. No. 322:“Jurisdiction should be declined where there is in place a complete, comprehensive and expert procedure for review of an administrativedecision.” [35] The legislative scheme of protection provided to patients under the MHA was reviewed by D.M.

Brown J. in the decision of Capano v. Centre for Addiction and Mental Health, 2010 ONSC 1687, 4 Admin. L.R. (5th) 147. At para. 35, Brown J. summarized thescheme as follows:

As I have described above,

Part II of the MHA creates a comprehensive legal framework governing the admissions of persons into apsychiatric facility on an involuntary basis. The Act: (

i) specifies the criteria which must be met in order to compel a person to submit to a psychiatric assessment: MHA, ss. 15 to18; (ii) identifies where and by whom the assessment can be made: MHA, s. 18; (iii) details the criteria which must be met before a certificate of involuntary admission may issue, as well as the duration of anysuch certificate: MHA, s. 20; (iv) requires that a person subject to a certificate of involuntary admission receive notice of the reasons for his detention, his rightto seek a review of the certificate and his right to counsel, as well as receive information from a rights advisor: MHA, s.38; and, (

v) affords and involuntary patient a right to apply to the CCB to inquire into whether or not the prerequisites set out in theMHA for admission or continuation as an involuntary patient are met, i.e. whether or not the detention is lawful: MHA, s. 39. [36] I agree that the MHA constitutes a comprehensive statutory scheme. The CCB is a creature of that statute and is designed tohear applications by persons challenging the decisions of psychiatrists and other caregivers that affect both their liberty and their bodilyand mental integrity.

This comprehensive scheme is available to persons such as the Applicant. [37] In addition to the legal framework summarized by Brown J. in Capano, amendments made to the MHA in 2010 now afford aninvoluntary patient the right to apply for a transfer to another psychiatric facility. There remains, of course, a full right to appeal a CCBdecision to this court pursuant to s. 48.

In addition, a complainant patient is entirely within his rights to apply to the Ontario HumanRights Tribunal or to make a complaint to the Royal College of Physicians and Surgeons. [38] I therefore decline to exercise this court’s habeas corpus jurisdiction. I am unable to find that there are reasonable or probablegrounds for the complaint.

In my view, the Legislature created a comprehensive framework for review and appeal, wherein the CCB hasbeen charged with the authority to consider matters pertaining to involuntary admission, certification, renewal, and transfer. [39] I hasten to add that, although the MHA contains a complete code of redress for review of decisions pertaining to libertysufficient for a denial of a writ of habeas corpus, the Charter itself is not thereby ousted from the analysis.

Section 52 (1) of the Constitution Act, 1982 and s. 24 (1) of theCharter [40] Section 52 (1) of the Constitution Act, 1982 states that “any law that is inconsistent with the provisions of the Constitution is,to the extent of the inconsistency, of no force and effect.” [41] The Applicant submits that the court must strike down the involuntary detention and review provisions in s. 20(1), 20(3),20(4), 20 (5), 34, 39(1), 41(1), 41(2) and 41(3) of the MHA as unconstitutional.

These provisions, which the Applicant terms the“detention scheme”, authorize the detention of a person with mental disabilities, potentially indefinitely, without regard to theindividual’s needs, circumstances of detention or the conditions of his release. The scheme is therefore inconsistent with s. 7, 9, 12, and15 (1) of the Charter.

The effect of the MHA, in the case of the Applicant, has resulted in him being detained for more than sixteenyears in a facility that is not appropriate for his security risk and that has not and will not provide him with the nature and quality of theservices that he requires (and is entitled to under s. 15 (1) of the Charter in light of his disabilities). The scheme under the Act was notintended to manage long term detainees. It leads to arbitrary detention, as evidenced by the Applicant’s case.

The Act is inherentlyflawed and must therefore be struck down. [42] The Respondent HMQ contends that the Applicant has conflated the distinct and separate remedies under s. 24 (1) of theCharter and s. 52 (1) of the Constitution Act, 1982 by asserting that the validity of the impugned sections of the MHA can be determinedby an examination of the Respondents’ discretionary conduct towards the Applicant.

The Respondent argues that an importantdistinction must be drawn between the validity of the impugned legislation for the purposes of s. 52 (1) of the Constitution Act, 1982,and the remedies that may be available under s. 24 (1) of the Charter in the event of infringement. [43] In my view, Ontario courts have answered conclusively that the MHA does not offend s. 7, 9, or 12 of the Charter and that itcomplies completely with the procedural component of the principles of fundamental justice: Starnaman v. Penetanguishene MentalHealth Centre, (1995), (ON CA), 24 O.R. (3d) 701, at para. 10 (C.A.), aff’ing [1994] O.J.

No. 1958 (Gen. Div.); C.Bv. Sawadsky, [2005] O.J. No. 3682, at paras. 55-65, aff’d (ON CA), [2006] O.J. No. 4050 at para. 21 (C.A.). TheMHA provides a right to a hearing before the CCB, the right to an independent and impartial magistrate, a decision by the magistrate on

the facts and the law, the right to know the case against oneself, and the right to answer the case. [44] In the case at bar, the Applicant has been provided with state funded legal counsel and ASL interpreters to ensure that heunderstood the case against him. The CCB decisions can be appealed to this court under s. 48 of the Act. The CCB’s previous inabilityto order a transfer to a less secure facility was rectified by the May 2010 amendments to the MHA (the “transfer provisions”).

Whenconsidering a transfer, the CCB is mandated to consider the best interests of the patient and his reintegration into the community. [45] As required by the legislative scheme, the CCB regularly considered the Applicant’s involuntary status. On all but oneoccasion, the CCB confirmed that the Applicant suffered from a mental illness and posed a serious risk of causing severe bodily harm toyoung children, sufficient to warrant involuntarily detention. On the one occasion that his involuntary status was revoked in 2003, theApplicant failed to abide by the conditions imposed. He was duly recertified.

The CCB has upheld his involuntary status since thattime. [46] The MHA does not compel an involuntary psychiatric patient to be treated in any specific manner. Indeed, the MHA isentirely silent in respect of the nature and quality of services that are to be offered to somebody in the Applicant’s circumstances. TheCCB has no jurisdiction to order services or to compel specific treatment.

According to the Applicant, the failure of the Respondents toprovide ASL services and other DAS to the Applicant in appropriate situations, coupled with the CCB’s impotence to impose a remedy,is evidence of the inherent inability of the legislative scheme to ensure compliance with Charter rights.

This should serve to render theentire scheme of the Act unconstitutional. [47] There is, perhaps, a natural temptation to utilize this approach: an individual evidentiary record affords an opportunity to seethe legislative scheme at work and presents a window through which to view that scheme’s impact on constitutionally enshrined rights. [48] Tempting or not, however, the approach is flawed and should be avoided.

In effect, the Applicant is working backwards bypointing to particular outcomes and then alleging that these outcomes are the inevitable product of the legislative scheme. [49] The MHA does not draw any distinctions based on deafness. It does of course apply to persons suffering from mentaldisorders but it does not discriminate against or between them. The MHA permits mentally ill persons to be involuntarily detained whenthey pose a significant risk of harm to themselves or others.

Whatever deficiencies there may have been in providing appropriate ASLand DAS to the Applicant while he was validly in detention, those deficiencies were not compelled or mandated by the MHA; rather,they were a by-product of the exercise of discretion by staff of the psychiatric facility. To the extent that those deficiencies constitutedinfringements of Charter protected rights, they cannot be said to have been inevitable. The MHA does not discriminate based upon aperson’s ability to hear.

There is nothing about the scheme itself that infringes upon the equality rights guaranteed by s. 15 (1) of theCharter. [50] The fact that the Applicant remained at Oak Ridge when his individual security needs would have been met at a less securefacility is certainly a matter for discussion and scrutiny, but it was not an inevitable result of the operation of the MHA. The existence ofthe legislative scheme which mandated the Applicant’s detention in a psychiatric facility was a necessary pre-condition to what followed,but the statute itself did not dictate the nature of that detention.

A particular set of circumstances, the impact of various actors, and theweight of certain variables were all necessary to bring about the complained of result. A distinction must be made between the overalloperation of a statute and an “as applied” review of discretionary decisions made under it. Where a Charter infringement is not anecessary and inevitable result of the statutory scheme but arises out of decisions taken in individual situations, a s. 24(1) remedy may beappropriate.

In my view, this cannot warrant the striking down of the legislation unless it can be demonstrated that the Act in question isinherently flawed or contains wording, processes, or powers which lead inexorably to Charter infringements. With the greatest ofrespect to the Applicant, he has failed to outline any reason why, schematically, the MHA itself violates the Charter. [51] The Applicant asserts that the very fact that he has been housed in a maximum security facility for sixteen years is proof thatthe MHA is not designed to handle long term detainees.

This argument overlooks the more fundamental question of how other long termdetainees have fared under the same scheme. The Applicant’s experience of long term detention under the MHA is relevant to the courtbut, in the absence of other comparable cases, only limited use should be made of it within the framework of a s. 52 analysis. [52] I am not persuaded that the scheme under the MHA is constitutionally invalid because the CCB lacks the jurisdiction to orderpsychiatric facilities to provide patients with particular assessments and treatment opportunities.

In putting forth that argument, theApplicant points to the denial of assessment, treatment, and rehabilitation for his special needs and the accompanying lack of opportunityto better his situation over sixteen years. He relies on the restriction of security of the person test laid down by the Supreme Court ofCanada in New Brunswick (Minister of Health & Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46. TheApplicant also draws a comparison between the scheme in the MHA and that contained in

Part XX.1 of the Criminal Code of Canada,R.S.C. 1985, c. C-46, the purpose of which is the protection of the public and the fair treatment of a person found to be not-criminallyresponsible (NCR) or unfit to stand trial. [53] In my view, the Constitution does not require that administrative tribunals be empowered to oversee all aspects of treatment ina mental health setting. Administrative tribunals, such as the CCB, are creatures of statute.

It remains the role of the Legislature, not ofjudges, to determine the scope of a tribunal’s remedial power: R v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 22. The patient who is subject to the MHA scheme retains the right to bring a complaint against a treatment provider or to seek redress underthe Human Rights Code, R.S.O. 1990, c. H. 19, in the event that a facility fails to offer reasonable accommodation for his disability. Anappeal to the Superior Court on a question of law or fact is available under s. 48 of the MHA.

The Superior Court always retains itsbroad remedial powers to rectify any Charter breaches. The Alleged Charter Infringements

(1) Section 7: the right to liberty and security of the person

[ 54 ] There is no doubt that P.S. has been housed in a maximum security facility unnecessarily. The consensus of treatment providers, staff, and professionals is that his security needs do not warrant this. Multiple efforts to transfer the Applicant to a less secure facility have, for various reasons, been unsuccessful. [ 55 ] Almost from the outset, Oak Ridge staff determined that the Applicant no longer required the high level of security maintained at Oak Ridge. MHCP therefore began to search for another facility that would agree to accept a transfer of the Applicant.

Under the statutory scheme in effect at the time, the officer in charge of a psychiatric facility had the discretion to decide whether or not to accept a patient transfer from another facility. [ 56 ] On May 29, 1996, not long after the Applicant’s arrival at Oak Ridge, when it was already apparent to Oak Ridge staff that a transfer was in order, a formal transfer request was made to St. Thomas Psychiatric Hospital (“St. Thomas”). This facility declined to accept the Applicant on the basis that he was a dangerous individual who should remain in a maximum security facility.

As such, he was not a suitable patient for transfer to that facility. Oak Ridge then asked St. Thomas to reconsider. Following a clinical meeting with the Applicant, St. Thomas maintained its earlier decision and declined the transfer. [ 57 ] After these failed efforts, there followed a period when the Applicant appeared to lose interest in dealing with his condition. He denied that he had any mental illness and refused to participate in treatment programs.

The Applicant’s resistance to treatment and his reluctance to engage in discussion or treatment of his condition is noted in numerous decisions of the CCB. [ 58 ] In early 2005, acting on the Applicant’s stated interest in a transfer to St. Thomas, Oak Ridge staff renewed efforts to investigate the prospects of a move to this less secure facility. Citing the fact that its facility did not have a sexual behaviour clinic, St.

Thomas again declined the proposed transfer. [ 59 ] Inquiries were then made to see if the Centre for Addiction and Mental Health (CAMH) in Toronto, the Brockville Psychiatric Hospital, or the Lakehead Psychiatric Hospital in Thunder Bay would be willing to accept the Applicant as a transfer patient. CAMH was prepared to provide sexual behaviour therapy on an out-patient basis, but rejected an outright transfer. The other options bore no fruit. A renewed appeal was made to St.

Thomas through the chief psychiatrist at Oak Ridge, to no avail. [ 60 ] A less secure division of Waypoint known as the Regional Division was then proposed as a transfer destination. While there is conflicting evidence on whether this proposed transfer was actually recommended or might have been beneficial to the Applicant, the evidence is abundantly clear that the Applicant ultimately rejected the idea of any transfer to the Regional Division. [ 61 ] On May 18, 2010, the MHA was amended, with the Legislature adding s. 39.2. That

section granted the CCB jurisdiction to order the transfer of an involuntary patient to another psychiatric facility over the objections of the receiving facility. While such an application may be advanced by either an officer in the housing facility or the patient himself, the CCB is not empowered to order a transfer over the objections of the patient.

The Applicant has repeatedly indicated that he would object to any transfer application launched by Waypoint. [ 62 ] The evidence makes it clear that, for its part, Waypoint has continued to explore the possibility of transferring the Applicant to CAMH in Toronto, where a wide range of out-patient specialized services and programs are available for deaf persons. Those services are not available in Penetanguishene and it would be prohibitively expensive to import them there. Without an application for a transfer, therefore, the services offered at CAMH would appear to be unavailable.

The ball, in that respect, is very much in the Applicant’s court. He must choose between the security and familiarity of a life that he knows in a facility that is not appropriate for his security needs and a move to an unfamiliar facility where many of the services he is seeking are available and where he would be housed in a security setting more appropriate for his situation. (

A) Liberty (

i) Overall Liberty [ 63 ] Although not conceded by the Applicant, it is apparent that the liberty allegedly being infringed in this case is what might be termed “residual liberty”; that is, his treatment within the facility once confined to it. The overall liberty of the Applicant was clearly engaged upon the completion of the Form 1 back in 1996 and has been engaged on each occasion when a Form 4 Certificate of Renewal was issued.

While involuntary admission to a psychiatric facility does deprive a patient of his liberty, the courts have repeatedly held that the deprivation scheme under the MHA is not constitutionally deficient. (See Starnaman , supra ) . [ 64 ] The evidence is clear that the Applicant poses a significant risk to the safety of others due to his Pedophilia. His risk is currently not manageable in the community. He is at a high risk to re-offend if he were to be released into the community without appropriate structure and supervision. (See the opinions of Dr. Anderson and Dr.

MacDougall dated January 2, 2009 and January 5, 2009 respectively). The CCB has repeatedly upheld the Applicant’s involuntary status. Undoubtedly, the Applicant’s overall liberty remains severely curtailed, but with just cause. His initial admission as an involuntary patient to Oak Ridge came about pursuant to a scheme that has been held to be constitutionally valid.

The renewal of his involuntary status has come about by operation of the same valid legislative scheme. (ii) Residual Liberty [ 65 ] Residual liberty may be engaged when a psychiatric patient is detained at a higher level of security than is necessary in light of that person’s risk to society. However, s. 39.2 of the MHA now affords a patient the right to apply for a transfer to another psychiatric facility. The application can be made as of right after every fourth certificate of renewal or, with leave, at any time.

The CCB is obliged to take into consideration the “best interests of the patient” and his or her “reintegration into the community.” The CCB can override the objections of a proposed accepting facility. [ 66 ] In light of the new transfer provisions in the MHA, I am unable to accept that the Applicant’s residual liberty is being denied

to him. He needs merely to make an application under s. 39.2 to challenge any present restriction on his residual liberty by him beinghoused in a maximum security facility.

By failing to exercise an option under what has been held to be a valid legislative scheme, whichI find has been supplemented, enriched, and enhanced by s. 39.2, and under whose processes the CCB is obliged to consider individualpatient risk and security concerns, the Applicant cannot maintain that his Charter protected rights to liberty and security of person arebeing violated. [67] In addition, the evidence is abundant that Waypoint has put into place a wide range of social, vocational, and recreationalopportunities for the Applicant, including weekly supervised community visits. In fact, Dr.

Jones has suggested that the Applicantactually enjoys a higher level of freedom within Oak Ridge’s secure environment then he would in a regional psychiatric facility. Theevidence also suggests that the Applicant cited the potential curtailment of freedoms and privileges as one of the reasons he was reluctantto transfer to the local Regional Centre. [68] Indeed, Dr. MacDougall has accepted that a transfer to a less secure psychiatric facility on its own would not be helpful in theabsence of appropriate services. Moreover, Dr.

MacDougall conceded that the setting at Waypoint may in fact be the most appropriatefacility for the Applicant. [69] There remains the problem of detention in the period prior to the enactment of the transfer provision in s. 39.2 of the MHA. Ifind that the Applicant did not suffer from a deprivation of his liberty or security of the person during his time at MHCP or Waypointprior to May 2010. True, the overall setting of the institution where he was housed was excessive for his security needs.

But just asthere is a distinction between overall liberty and residual liberty, so, in my view, should there be a distinction between overall securityand residual security. I am satisfied on the evidence that the Applicant enjoyed freedoms and privileges that were uncommon in amaximum security facility, many of which were tailored to his individual circumstances, including his own security needs and uniquedisability. Overall, I am not satisfied that there is a sufficient evidentiary basis for a finding that the maximum security system at OakRidge has deprived the Applicant of his residual liberty. (

B) Security of the Person [70] The right to security of the person includes the right to exercise control over one’s physical and psychological integrity freefrom state interference. It also encompasses the right to make choices concerning one’s own body: Rodriguez v. British Columbia(Attorney General), (SCC), [1993] 3 S.C.R. 519. The involuntary detention scheme in the MHA does deprive a personof his liberty. However, the Ontario Court of Appeal in Starnaman made it clear that such deprivation is in accordance with a law thatdoes not violate the principles of fundamental justice.

The Applicant has been involuntarily detained under the MHA because he hasbeen found to pose a significant risk of serious bodily harm to others, particularly children and adolescent males, if he were to be releasedinto the community. The relevant diagnosis of Pedophilia has been repeatedly confirmed by professional assessors. The Applicant’sinvoluntary status has been repeatedly upheld by the CCB. The Court of Appeal has upheld the constitutionality of the MHA. There isno compelling evidence in this case that either MHCP or Waypoint denied procedural or substantive rights to the Applicant under thatvalid scheme.

There is no compelling evidence to contradict the diagnoses of the assessors and there is no compelling evidence uponwhich a court could call in to question the confirmation of the Applicant’s involuntary status. This is not an appeal from a decision of theCCB. The Applicant has failed to cite a principle of fundamental justice that relates to the manner in which particular medical treatmentor assessment decisions are made. [71] I am unable to conclude, by their conduct prior to May 2010, that either MHCP or Waypoint infringed the Applicant’s rightsto security of the person under s. 7 of the Charter.

The Supreme Court has emphasized that, where the psychological integrity of aperson is at issue, security of the person is restricted to “serious state-imposed psychological stress”. Two requirements must be met inorder for security of the person to be infringed: first, the psychological harm must be state imposed; second, the psychological prejudicemust be serious: Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 , [2000] 2 S.C.R. 307, at para. 57. Itis debatable here whether the psychological harm has been state imposed.

The Respondents both made legitimate efforts to find a moresuitable facility for the Applicant. A mechanism to induce a facility to accept a transfer did not exist up until 2010. The Applicanthimself turned down a transfer to the Regional Division. Waypoint made continued attempts, in line with previous efforts by MHCP inthe pre-divestment period, to transfer the Applicant to a less secure psychiatric facility. In early 2009, a transfer to St. Joseph’s HealthCare (“SJHC”), in London, Ontario, was initiated by Dr. Fleming with the support of the Applicant.

The request for a transfer wasdeclined by SJHC, in part because they did not operate a sexual behaviour clinic. It was during this time period that the transfer to thePsychosocial Rehabilitation Program (“PSRP”) at the less secure Regional Division at Waypoint was explored. According to Waypoint,the Applicant expressed reluctance to take this middle step towards community placement since it would deprive him of some of theopportunities and privileges such as his own room and a job in the Pit Stop, which he was enjoying at Waypoint.

On July 14, 2009,through his lawyer, the Applicant declined a transfer to the Regional facility during any interim period while this Application waspending. [72] I agree with HMQ that Oak Ridge may not have been the ideal setting for the Applicant, both because of its security level andbecause of the limited DAS available in the immediate community. Yet, Oak Ridge did provide a safe and secure environment withsome DAS and ASL

interpretation. The Applicant enjoyed access to recreational, vocational, and social activities as well as supervisedaccess to the community. At worst, he was in an inappropriate facility for his particular needs and given his security risk. There isinsufficient evidence for a finding that the Applicant has suffered serious psychological prejudice. Applying the test summarized inBlencoe to the facts of this case, I am unable to find that the Applicant has suffered any serious state imposed psychological harm orstress. Did the inadequacy of ASL or DAS inhibit the Applicant’srehabilitation, prolong his detention, and result in a s. 7infringement?

[ 73 ] The Applicant asserts that the failure to retain deafness experts to assist in assessments and treatment led to inappropriate diagnoses. This failure also left the Applicant unable to utilize rehabilitation skills and services to improve his condition, thereby effectively lengthening his detention unnecessarily. There is evidence from Dr. Delia Wallis that the Applicant experienced a diminished level of skill and sophistication with sign language because of a prolonged lack of exposure to consistent models of ASL and limited opportunities to engage in a freely accessible exchange of communication.

In his affidavit dated November 2, 2011, Dr. MacDougall suggested that the scarcity of DAS had been the root cause of the Applicant’s failure to achieve progress in rehabilitation. Dr. MacDougall went on to assert that, in the absence of these services and due to the almost complete lack of understanding of the realities of deafness by the professionals involved, the majority of assessments and interventions had not been appropriate. Dr.

MacDougall further opined that the absence of interpreters for assessments and programming was primarily responsible for the Applicant being simply “gated” to Oak Ridge after he had served his sentence at Kingston. The Applicant contended that these opinions constitute evidence upon which this court should determine that the Charter infringements had occurred and were ongoing. [ 74 ] I am unable to agree with the Applicant’s position that Dr. MacDougall’s opinions are determinative of any of the Charter issues before me.

Nowhere in the record is there any evidence to suggest that the certificates should be found to be invalid because the diagnoses in support of them were inappropriate. Dr. MacDougall was prepared to characterize the assessments as “inappropriate” and the diagnoses as “problematic” but was not prepared to dismiss the diagnoses or offer any alternative. Nor could he: Dr. MacDougall is not an expert in risk assessment or forensic psychiatry. Indeed, Dr.

MacDougall expressly stated that he did not dispute the diagnosis of Pedophilia and conceded that nothing he had seen or read would contradict the assessments carried out at Oak Ridge. As stated by Dr. Brian Jones, the Vice President of the Provincial Forensic Programs Division at Waypoint, in his Affidavit dated April 18, 2012: Notwithstanding Dr. MacDougall’s caution, in my view there is no reasonable basis upon which one could remove either the personality disorder or psychosis diagnoses in respect of P.S..

However, even if this were done, the diagnoses of Pedophilia would remain and, on that basis alone, the CCB would maintain P.S.’s involuntary status. P.S.’s treating clinicians and various experts all acknowledge that P.S.’s risk factors relate primarily to his Pedophilia. [ 75 ] Nowhere in the evidentiary record is there an opinion contradicting the diagnoses of the treating and assessing professionals. Nor is there any opinion to the effect that the diagnosis would be different had the suggested ASL and DAS accompanied the treatment or the assessments.

In the absence of such evidence, I am not able to find that any systemic inadequacies or lack of accommodation have prolonged the Applicant’s involuntary detention. [ 76 ] I am equally unable to accept the Applicant’s statement that any neglect of his needs has been the result of complacency and budgetary concerns, not due to a lack of available services. The evidence does not support that conclusion. Nor does the evidence support the assertion that without appropriate assessment, treatment, and rehabilitative opportunities for the deaf, the Applicant has simply languished at Oak Ridge.

The evidence does not support the Applicant’s suggestion that the MHCP and Waypoint have consistently failed to provide him with meaningful opportunities for clinical interactions aimed at addressing and reducing his risk factors. On the contrary, the evidentiary record is replete with treatments and opportunities afforded to the Applicant, often complemented with DAS. These include: phallometric testing, a relapse prevention program, sexual behaviour therapy, religious counselling, and trials of antipsychotic medication and anti-androgens.

I am unable to find that the level of ASL or DAS provided to the Applicant during his time at Oak Ridge has deprived him of liberty or security of the person. The Bob Rumble Associations for the Deaf, the “BRAD Initiative”: a denial of liberty or security of the person? [ 77 ] The most recent decisions of the CCB, supported by the opinions of the Applicant’s treatment team leave no doubt that the Applicant continues to pose a significant threat and danger to unsupervised minors.

The suggestion that BRAD might be an appropriate facility for the Applicant was made in the context of an understanding that appropriate security arrangements would need to be put in place. The Applicant has taken the suggestion to mean that he is ready to be released into the community. The evidence does not support this assertion.

The evidentiary record is replete with warnings from treatment providers and experts found in reports and relied upon by the CCB in arriving at their consistent conclusion that the Applicant still qualified for the diagnosis of Pedophilia and Anti- Social Personality Disorder and that his mental disorder was of a nature or quality that likely would result in serious bodily harm to others. These findings and conclusions were supported by the various assessors including Dr. Ramshaw (clinical

summary dated August 7, 2008) and Dr. Anderson (independent assessment report of January 2, 2009). [ 78 ] The idea of a placement at BRAD was born of good intentions. The initiative was spearheaded by Louise Gagne, Executive Director of the Deaf Access Simcoe-Muskoka Inc. (“Deaf Access”). Armed with the recommendations of Dr. MacDougall as set out in his reports dated January 5 and March 20, 2009, Deaf Access took the lead in trying to find the Applicant a suitable community placement.

A Personal Support Plan dated July 6, 2010 and prepared by BRAD’s own program director, set out its purpose as follows: “to re-integrate P.S. in the community after approximately 20 years of incarceration (force or voluntary)”. [ 79 ] BRAD accepted the Applicant on the condition that it would receive funding for the Personal Support Plan. [ 80 ] Almost from the start, certain realities served to frustrate the realization of such a placement.

Implementing a plan that could house the Applicant, provide the DAS and treatment services particular to his needs, and ensure the necessary security safeguards in order to ensure public safety proved to be the daunting challenge of the BRAD initiative. The costs to provide the service and security measures thought necessary to accommodate the Application’s needs and ensure public safety were estimated at over $650,000 for initial goods and services and $661,231 for annually required goods and services.

Funding was an issue: BRAD received funding from the Ministry of Community and Social Services to operate facilities for persons who are both deaf and developmentally delayed. The Applicant was ineligible for funding as independent assessments had determined that he was not developmentally delayed. Another practical problem was that BRAD was not a

Schedule 1 facility under the MHA. It would possess no legal authority to detain the

Applicant on the premises. [ 81 ] I agree with the Respondents that the CCB did not deal with the potential move to BRAD in any substantive manner. In no way did the CCB ever make a determination that the Applicant was ready for community placement without appropriate security being in place. Nor should the acceptance of the application by BRAD be viewed as a determination that the Applicant’s diagnosis or involuntary status had changed. BRAD is not empowered to make that determination. In fairness to BRAD, it did not try to do so. [ 82 ] A transfer to BRAD was always a prospect. The idea did not bear fruit.

BRAD was neither the subject of a referral, nor the destination named in a transfer application. Indeed, BRAD is not a receiving facility under the MHA. BRAD might serve as an ultimate destination for the Applicant but only if appropriate measures and supports were put in place to manage the risk to public safety. At its core, BRAD was nothing more than an option in which the Applicant expressed an interest and which became part of the discussion surrounding the Applicant’s service and security needs. A bona fide investigation into this option led to the conclusion that it was not a viable option.

In my view, the spectre of a Charter infringement should not serve to discourage well-meaning staff from embarking upon good faith investigation into patient transfers community based facilities. The failure of the BRAD initiative can in no way be construed as a denial of the Applicant’s liberty or the security of his person. It merely serves as further evidence of the challenging nature of the Applicant’s situation. Community Placement: an ultimate goal and a Charter red flag [ 83 ] According to Dr.

Dana Anderson, an expert retained at the request of Applicant’s counsel in 2009, “P.S.’s risk is unmanageable in the community setting.” Dr. Anderson went on to suggest that any gradual reintegration of the Applicant into a community setting would require social support, supervision, and appropriate follow-up, but only after many of the Applicant’s risk factors had been adequately addressed at the in-patient level. [ 84 ] Indeed, Dr.

Fleming has pointed out that, had the Applicant decided to accept the plan for transfer to the Regional Centre, Waypoint would have designed a relapse prevention plan and then made an attempt to place the Applicant into the community, likely in a supervised and secure group home setting. According to Dr. Fleming, Waypoint viewed CAMH as an appropriate transfer facility because it offered an opportunity for a step down in the Applicant’s institutionalization. The Applicant was not prepared to consider this “stepping down” as part of a community reintegration plan. Dr.

Fleming emphasized that, before any community placement could be considered, the Applicant needed to transition from a secure forensic unit to a regional mental health centre where he could be provided with the appropriate services for a person with his condition. As recently as June 2012, Dr.

Jones echoed these thoughts when he testified that the Applicant should look to transition from the province’s most secure forensic unit (Oak Ridge) to a regional mental health centre where he can receive the necessary support for a transition from institutional to community living. [ 85 ] I am satisfied that the Applicant has been afforded the utmost liberty compatible with his situation. His involuntary detention has been and continues to be justified under a valid piece of legislation.

While his ongoing detention in a secure forensic facility has been inappropriate for some time, the quality of his detention has been complicated by a number of factors, all particular to his situation rather than systemic. This situation has been characterized by an unwillingness on the part of certain facilities in the past to accept him (SJHC and St.

Thomas), by funding and security deficiencies in non-Schedule 1 community settings (BRAD), by the Applicant’s unwillingness to consider a transfer to a facility offering enhanced DAS (CAMH) or to a facility where a relapse prevention program might have proven to be a first step towards community reintegration (Regional Centre).

Most recently, any potential change in his security setting has been stymied by the Applicant’s own refusal to proceed with or to permit an application for transfer under s. 39.2 of the MHA. [ 86 ] I am unable to agree with the Applicant that he has been a victim of warehousing or that his time at MHCP and Waypoint has amounted to a prison of silence.

The evidence suggests that he has benefitted from ASL and other DAS in many circumstances, that he has enjoyed a wide variety of opportunities and freedoms, that communication and understanding have been an ongoing priority for staff and treatment team and that he has been provided with substantive and procedural rights to hearings. The evidence also suggests that alternative facilities have been explored, approached, petitioned, and even implored to receive him. When the decision for a transfer has been his to take, he has declined to accept or initiate any action.

The Applicant’s belief that he is ready for immediate community placement is at odds with the considered opinions of qualified experts. (II)

Section 9 of the Charter : Arbitrary Detention and Principles of Fundamental Justice [ 87 ] I am not persuaded that the detention of the Applicant has at any time been arbitrary for the purposes of s. 9 of the Charter . [ 88 ] I find that the efforts made by the staff at MHCP and Waypoint to arrange a transfer of the Applicant to a facility more appropriate to his security needs merits consideration under the analysis of this alleged Charter infringement.

The efforts made in this regard speak to the arbitrariness of the detention. “Arbitrary” is defined in Black’s Law Dictionary , 5 th Ed., as follows: “ not done according to reason or judgment; depending on the will alone; absolutely in power; capriciously; tyrannical; despotic…..ordinarily, arbitrary is synonymous with bad faith or failure to exercise honest judgment…”. [ 89 ] I find that MHCP and Waypoint worked with what they had in attempting to arrange for the Applicant’s transfer.

Prior to the enactment of s 39.2 of the MHA, there existed no mechanism by which to impose upon an alternative facility to accept a transfer of a patient. The Respondents cannot be faulted for trying; indeed, the Waypoint staff should be commended for acting out of what they perceived as the best interests of the patient. Viewed in this way, the continuing detention of the Applicant at Oak Ridge was very much the subject of concern, attention, and pro-action. There was nothing about it which was arbitrary. Other, seemingly more suitable facilities declined a transfer. Those facilities had their reasons.

It might be argued that the prospective receiving facilities were arbitrary

in their rejection of the Applicant. Those facilities are not before this court on the issue of Charter infringement. They have notexercised any power of detention over the Applicant under the MHA. To the extent that a protocol for a patient transfer existed at thetime, I find that both MHCP and Waypoint adopted and followed it; in so doing, the staff at Oak Ridge exercised reason and judgment. Moreover, I am persuaded that the Applicant himself stymied any realistic opportunity for a transfer to St.

Thomas by declining to facethe reality of his condition and seek treatment for it in the aftermath of the rejection of a transfer by St. Thomas in the late 1990s. Inaddition, the Applicant declined to follow through with a transfer to the Regional Centre of Waypoint in 2009, when it was offered tohim. Latterly, he has expressed his refusal to agree to a s. 39.2 transfer application which might take him to a medium security facilitywith more enhanced services and programs as a step down towards eventual community placement.

It seems contrary to logic that theApplicant seeks from this court that which he might find more easily attainable through a process offered by the very legislative schemewhich he challenges as unconstitutional. (III)

Section 12 of the Charter: cruel and unusual punishment [90]

Section 12 of the Charter provides that “everyone has the right not to be subjected to any cruel and unusual treatment orpunishment”. The Applicant contends that the circumstances of his detention have combined to render it punitive. This constitutes crueland unusual punishment for the purposes of the Charter. [91] In R v.

Smith, (SCC), [1987] 1 S.C.R. 1045, at p. 1072, the Supreme Court defined cruel and unusualtreatment or punishment as treatment or punishment “grossly disproportionate to what would have been appropriate” or “so excessive asto outrage standards of decency.” [92] There is no compelling evidence in support of the Applicant’s position as it pertains to this alleged Charter infringement. The Applicant is not subjected to any inappropriate treatment or punishment. He is involuntarily detained under a valid legislativescheme designed to protect the public.

He is the subject of observation, care, and treatment of his mental condition which treatment canonly be provided with his informed consent. He is involuntarily detained, not involuntarily treated. To the extent that any services ortreatment have been denied or withheld or his liberty constrained, the assessment of these alleged infringements should take place underss. 7, 9, or 15 (1), not s. 12. His remaining in a maximum security facility has been an anomaly. That result was neither designed norintended. The Applicant was not singled out, punished, or targeted.

On the contrary, the evidence establishes that Oak Ridge hasprovided him with unique opportunities. I am unable to conclude that either his detention at Oak Ridge or the shortage of DAS bothwithin that facility and in the outlying community have amounted to any form of cruel or unusual punishment. (IV)

Section 10 (

a) of the Charter: rights upon detention [93] In determining whether an infringement of the right to be informed promptly of the reason for one’s detention has occurred,the question to pose is whether what the detainee was told, viewed reasonably in all of the circumstances of the case, was sufficient topermit him to make a reasonable decision to decline to submit to detention, or alternatively, to understand his right to counsel under s.10(

b) of the Charter: R v. Evans, (SCC), [1991] 1 S.C.R. 869, at p. 887. [94] The Applicant contends that during the period of his involuntary detention, the Respondents have failed to make adequateefforts to explain in a meaningful way, using appropriate communication commensurate with the Applicant’s special needs, the reasonfor his detention and re-certifications. [95] I am not persuaded that there has been any infringement of the Applicant’s Charter rights in this regard. The Applicant hasnot stated that he was not told of the reasons for his detention at the time of his arrival at Oak Ridge.

There is evidence that patient rightsadvisors would have been made available upon initial admission. Dr. Jones has stated that a rights advisor, using an ASL interpreter,would have met with the Applicant within several weeks following the Form 4 re-certifications. The clinical record reveals that theApplicant understood the concern about him harming children. The October 23, 1998 CCB decision confirms that the Applicant wasadvised of the reasons for his continuing detention. A chart prepared by the Respondents provided satisfactory proof to this court that aninterpreter was present for most of the CCB hearings.

In addition, the Applicant was represented by counsel. Given that his diagnosishas remained relatively stable and that the Applicant does not apparently suffer from any comprehension or memory problems, it defiescommon sense that the Applicant would still not understand the reasons for his detention. It may well have been that the Applicant didnot agree with the reasons for his ongoing detention. I am not persuaded on the evidence, however, that the reasons were not adequatelyexplained to him or that he did not understand them.

I find no infringement of a Charter right under s. 10(a). (V) Section 15 (1) of the Charter: equality before the law [96] On the evidentiary record before me, I find that, and in certain instances, the MHCP neglected to provide the Applicant withASL and DAS for significant therapeutic interactions and meetings.

I cite the following specific examples: • No ASL interpreters used for the sexual preference assessment in February 1996; • The psychological evaluation conducted on July 25, 1996 took place without ASL interpreters; • Case conferences between 1996 and 1999 appear to have been conducted without ASL interpreters; and, • No interpreters were employed for the 39 sessions of individualized sexual behavioural programming offered in 2006 and 2007. [97] The absence of these services likely resulted in shortcomings in communication and impaired the Applicant’s understandingof his situation in these.

Accordingly, there was an infringement of the Applicant’s Charter rights under s. 15 (1) when ASL and DAS

services were not provided to him for some significant therapeutic interventions in the pre-divestment period. In keeping with the test laid down in Eldridge , the failure to provide sign language

interpretation where it was necessary for effective communication in important medical situations constitutes a prima facie violation of the s. 15 (1) rights of deaf persons. This failure denied the Applicant of an equal benefit of the law and discriminated against him in comparison with hearing persons. HMQ did not put forward a valid s. 1 justification. [ 98 ] A review of the evidentiary record does reveal a number of instances where the Applicant himself, in the pre-divestment period, either declined the ASL or DAS being offered to him or expressed a preference for alternate forms of communication.

On February 12, 1996, the Applicant declined an interpreter in favour of a paper exchange. A clinical note from April 1996 recorded that the Applicant preferred to communicate in writing. Prior to an interview with consulting expert Dr. Malcolmson, the Applicant declined the services of an interpreter to facilitate an exchange with the doctor about sexual issues.

Louis Gagne, the former Executive Director of Deaf Access, who swore an affidavit in support of the Application, testified that the Applicant generally did not wish to make use of deaf interpreters because his experience was that interpreters were inclined to talk down to him. The Applicant declined an offer to have an interpreter present at the August 1996 CCB hearing. [ 99 ] Effective communication with the Applicant proved a challenge from the outset. The assessments of Dr.

MacDougall and the ASL Proficiency Assessment Report of April 2008 both reveal that the Applicant employed a version of Signed English rather than pure ASL. He often articulated English words while signing. He relied extensively on finger spelling. Assessors have reported that the Applicant was able to write as an effective means of communication. Even Dr. MacDougall remarked on the Applicant’s preference not to make use of deaf interpreters, given their limited utility to him. [ 100 ] The Applicant’s communication needs were never straight forward. Effective communication was always a challenge.

The evidentiary record satisfies me that MHCP did recognize the need for effective communication and did, on an increasing basis in the pre- divestment period, provide the Applicant with DAS in diverse situations. I have found that there was an infringement of the Applicant’s rights under s. 15(1) ; however, a full review of the evidentiary record satisfies me that the infringement was not intentional. It did not arise out of bad faith or neglect on the part of MHCP. On the contrary, staff at MHCP was aware of the importance of communication and understanding with the Applicant.

They were attentive to the issue and pro-active in addressing it. In several instances, they simply fell short of their obligations as spelled out in Eldridge . [ 101 ] The evidence from Waypoint, which is largely un-contradicted and which I am prepared to accept, has established that there are generally three interpreters present at the involuntary status hearings before the CCB: two ASL interpreters and a deaf interpreter. In addition, Waypoint routinely arranges for ASL interpreters to be available to the Applicant for significant therapeutic interactions.

This helps to ensure that effective communication is achieved in these situations. Waypoint has also satisfied me that it has made concerted efforts to have ASL interpreters available for monthly clinical team meetings, which the Applicant is encouraged to attend.

At these sessions, the team reviews issues relating to the Applicant’s social/interpersonal skills, quality of life and communication needs, in addition to medical assessment and treatment issues. [ 102 ] I am also satisfied that, for his daily routine and interactions, the Waypoint staff have consistently exercised their discretion in a reasonable manner in determining what type of communication is appropriate in the circumstances. Often times, this has involved simple written exchanges, gestures, or hand signals.

There is no evidence before me that this has led to any type of misunderstanding or any measure of complaint from the Applicant. All of the evidence points to the Applicant being affable, comfortable, and responsive in his daily routine. The evidence satisfies me that effective communication between Waypoint and the Applicant has been achieved on a consistent basis in the post-divestment period. This is in conformity with the flexible approach to communication envisaged by the court in Eldridge . I am satisfied that Waypoint has not infringed the Applicant’s Charter rights under s. 15 (1) .

Disposition [ 103 ] In light of the analysis and findings above, there are insufficient grounds for the issuance of a writ of habeas corpus. That part of the Application is dismissed. I conclude that in failing to provide the Applicant with DAS for certain significant therapeutic interventions in the pre-divestment period, HMQ infringed the Applicant’s right to equal protection under the law, contrary to s. 15 (1) of the Charter . That part of the Application is allowed. I am unable to find that HMQ infringed on the Applicant’s rights under ss. 7 , 9 , 10 (a), or 12 at any time in the pre-divestment period.

I am unable to find that the Respondent Waypoint has infringed on the Charter rights of the Applicant in any way in the post-divestment period. That part of the Application is dismissed. I have concluded that the involuntary detention and review provisions in ss. 20(1) , 20(1.1) , 20(4) , 20(5) , 34 , 39(1) , 41(1) , 41(2) , and 41(3) of the Mental Health Act are not inconsistent with ss. 7 , 9 , 12 , and 15(1) of the Charter . Accordingly, the MHA is valid constitutional legislation. The Applicant’s request for a declaration under s. 52(1) of the Constitution Act, 1982 is denied. Section 24(1) and

Part II of the Application [ 104 ] I will remain seized of this matter for the purpose of the second part of the bifurcated Application. The parties should contact the Trial Co-ordinator at Barrie to arrange for a date for the continuation of the Application before me. The return of the second part of the Application should be made on at least 30 days’ notice to the other Respondents in the event that a remedy is sought which requires those institutions to provide services or security measures. McCARTHY J.

Released: May 23, 2013