Court File No. 34930 IN THE SUPREME COURT OF CANADA (on appeal from the Court of Appeal for Ontario) BETWEEN: BRIAN CONCEPTION Appellant (Respondent) -and· HER MAJESTY THE QUEEN Respondent (Respondent) and THE PERSONS IN CHARGE OF THE CENTRE FOR ADDICTION AND MENTAL HEALTH and THE MENTAL HEALTH CENTRE PENETANGUISHENE Respondents (Appellants) and ATTORNEYGENERALFORCANADA Intervener and PROCUREUR GENERAL DU QUEBEC Intervener APPELLANT'S FACTUM FRANK ADDARIO RAIJA PULKINNEN Addario Law Group Sack Goldblatt Mitchell LLP 171 John Street Ste. 500 -30 Metcalfe Street Toronto, Ontario M5T 1X3 Ottawa, Ontario K1P 5L4 Tel.: 1-416-979-6446 Tel.: (613) 235-5327 Fax: 1-888-714-1196 Fax: (613) 235-3041 [email protected] K1P 5L4 PAUL BURSTEIN Burstein Bryant Barristers Ottawa Agent for Appellant 51h Floor -6 Adelaide Street East Toronto, Ontario MSC 1H6 Tel. 1-416-927-7441 Fax: 1-416-488-9802 pburstein@bursteinbryantcom Counsel for the Appellant PAUL BURSTEIN and FR.Al~K ADD ARlO RAIJA PULKINNEN Paul Burstein Sack Goldblatt Mitchell LLP Burstein Bryant Barristers 30 Metcalfe Street, Suite 500 6 Adelaide Street East, 5th Floor Ottawa, Ontario KIP 5L4 Toronto, Ontario MSC IH6 Tel: 613-235-5327 Tel: 416-927-7441 Fax: 613-235-3041 Fax: 416-488-9802 Email: :r:pulkki:nen@sgrnlaw .com Email: [email protected] Frank Addario Ottawa Agents for the Appellant, Addario Law Group Brian Conception 171 John Street, Suite 101 Toronto, Ontario M5T 1X3 Tel: 416-979-6446 Fax: 1-866-714-1196 Email: gg~]Q(;~~m~ Counsel for the Appellant, Brian Conception RIUN SHAL~DLER and GRACE CHOI ROBERT E. HOUSTON, Q.C. )vfinistry of the Attorney General (Ontario) Burke -Robertson LLP Crown Law Office - Criminal 441 MacLaren Street, Suite 200 720 Bay Street, lOth Floor Ottawa, On K2P 2H3 Toronto, Ontario M7 A 2S9 Tel: 613-236-9665 Tel: 416-326-4600 Fax: 613-235-4430 Fax: 416-326-4656 Email: [email protected] Email: rilm.shandler(Zi''.ontario.ca £[email protected] Counsel for the Respondent, Ottawa Agents for the Respondent, Her Majesty the Queen Her :Y1aj esty the Queen JAL'VIES P. THOMS0::.\1 lVIARIE- IHAJOR FR.Al~CE Bersenas Jacobsen Chouest Thomson Supreme Advocacy LLP Blackburn LLP 397 Gladstone Avenue, Suite 100 33 Yonge Street, Suite 201 Ottawa, Ontario K2P OY9 Toronto, Ontario M5E 1G4 Tet 613-695-8855 Tel: 416-982-3806 Fax: 613-695-8580 416-982-3801 Email: [email protected] Email: @;;m}_~ifill~~~&QlQl Ottawa Agents for the Respondents, Counsel for the Respondents, The Person In Charge The Person In Charge of the Centre for of the Centre for Addiction and Mental Health and Addiction and Mental Health and The Person The Person In Charge of the Mental Health Centre In Charge of the Mental Health Centre Penetanguishene P enetanguishene RICHARD KRAl'VI:ER and GTh'ETTE GOBEIL ROBERT J. FRATER Department of Justice, Ontario Regional Office Senior General Counsel 130 King Street West, Suite 3400 Department of Justice, Criminal Law Section Toronto, Ontario M5X 1K6 Attorney General of Canada Tel: 416-952-6330 234 Wellington Street, Room 1161 Fax: 416-973-4328 Ottawa, Ontario KIA OH8 Email: rk:ramer(@.justice.gc.ca Tel: 613-957-4763 ginette. ~wbeil@oosc-sunc. gc.ca Fax: 613-954-1920 Email: rfrater('@.iustice.gc.ca Ottawa Agents for the Intervener, the Counsel for the Intervener, The Attorney General of Canada Attorney General of Canada CAROLil\TE RENAlJ'TI and DOl\Hi'{IQDE PIERRE LAL~DRY A. JOBIN Noel et Associes Direction generale des affjur.et legis 111, rue Champlain 1200 route de l'Eglise, 2e etage Gatineau, Quebec J8X 3Rl Quebec, QC Gl V 4Ml Tel: 819-771-7393 Tel· 418-643-1477 ext.20780 Fax: 819-771-5397 Fax : 418-644-7030 Email : [email protected] Email : caroline.renaud(ci),justice.gouv.qc.ca dominique-a. j o bin@justi ce. gouv. q c. ca Ottawa Agents for the Intervener, Counsel for the Intervener, theAttomey General of Quebec the Attorney General of Quebec Court File No. 34930 IN THE SUPREME COURT OF CANADA (on appeal from the Court of Appeal for Ontario) BETWEEN: BRIAN CONCEPTION Appellant (Respondent) ~and~ HER MAJESTY THE QUEEN Respondent (Respondent) and THE PERSONS IN CHARGE OF THE CENTRE FOR ADDICTION AND MENTAL HEALTH and THE MENTAL HEALTH CENTRE PENETANGUISHENE Respondents (Appellants) and ATTORNEYGENERALFORCANADA Intervener and PROCUREUR GENERAL DU QUEBEC Intervener APPELLANT'S FACTUM INDEX PART I: STATEMENT OF THE FACTS 1 1) Overview 1 2) Procedural history of this case 2 3) The Criminal Code regime governing the hospitalization of UST accused 4 4) A brief legislative history of UST treatment orders under Part XX.1 of the Code 5 -ii- INDEX (cont'd) 5) Jails are an unacceptable waiting area for UST accused in acute need of treatment 7 6) Ontario's inadequate response to the chronic forensic bed shortage 10 7) Jails are not adequate substitutes for hospitals in administering the forcible treatment of UST accused 12 8) The deleterious effects of delays in treating the unfit mentally ill accused 13 9) The lack of standard criteria governing forensic bed allocations 15 10) Judicial efforts to superintend delays in implementing transfer-to-hospital orders 17 PART II: POINTS IN ISSUE 25 (i) Did the Court of Appeal err in holding that the "consent" required of a hospital by s. 6 72.62 of the Code relates to the timing of the s. 6 72.58 order and not just to the treatment concerns identified by s. 672.59? 25 (ii) In the alternative, does requiring a hospital's "consent" for the issuance of a s. 6 72.58 order violate s. 7 of the Charter? 25 PART III: ARGUMENT 26 I. Introduction -mootness and sequencing of issues 26 II. The "consent" requirement of s. 672.62 was satisfied in this case 26 1) Section 672.62 requires only that the treatment-provider endorse the appropriateness and effectiveness ofthe proposed treatment 26 2) While there was evidence of the Hospitals' consent, there was no evidence to support delaying the commencement of the s. 672.58 disposition 28 III. The "consent" requirement ins. 672.62(1)(a) violates s. 7 ofthe Charter 31 1) Introduction 31 -iii- INDEX (cont'd) 2) Provincial jurisdiction over "health" does not insulates. 672.62(1)(a) from Charter review nor does it support a broad interpretation of the "consent" requirement 31 3) Section 672.62 does not accord with the principles of fundamental justice 34 (a) Unconstitutional delegation oft he decision to issue as. 672.58 treatment order 34 (b) The hospitals' decision-making power is arbitrary and vague 35 4) Section 1 of the Charter cannot justify the violation created by s. 672.62's vague "consent" requirement and/or the lack of procedural fairness 37 5) Constitutional Remedy 39 PART IV: SUBMISSIONS CONCERNING COSTS 40 PART V: ORDER REQUESTED 40 PART VI: AUTHORITIES TO BE CITED 41 PART VII: RELEVANT LEGISLATIVE PROVISIONS 43 APPELLANT'S FACTUM Page 1 Part I -Statement of Facts Court File No. 34930 IN THE SUPREME COURT OF CANADA (on appeal from the Court of Appeal for Ontario) BETWEEN: BRIAN CONCEPTION Appellant (Respondent) -and- HER MAJESTY THE QUEEN 10 Respondent (Respondent) and THE PERSONS IN CHARGE OF THE CENTRE FOR ADDICTION AND MENTAL HEALTH and THE MENTAL HEALTH CENTRE PENETANGUISHENE Respondents (Appellants) and ATTORNEYGENERALFORCANADA Intervener 20 and PROCUREUR GENERAL DU QUEBEC Intervener APPELLANT'S FACTUM PART I: STATEMENT OF THE FACTS 1) Overview 1. This case concerns the treatment of mentally disordered Canadians caught up in the criminal justice system. Unfit accused in need of treatment are typically remanded to wait in an Ontario jail if a forensic bed is not available. Because of government business decisions, the supply of forensic hospital beds has not kept pace with the demand for them. However, 30 Ontario jails are not equipped to handle the special needs of this acutely ill population of APPELLANT'S FACTUM Page2 Part I -Statement of Facts inmates. Mentally ill persons in Ontario jails have been the victims of homicide and suicide while awaiting access to forensic mental health services. 2. This appeal is the Court's first opportunity to address the proper interpretation of the Code provisions relating to treatment orders and the constitutional implications of limiting judicial supervision of that process. The narrow legal question on appeal is whether the provincial court has jurisdiction to supervise the delays in giving restorative treatment to those mentally disordered accused who have been found unfit to stand trial ("UST") and who must remain in custody until they can be returned to a state of fitness and continue with the criminal process. Should the court be allowed to supervise the decision by hospital 10 administrators concerning if and when a UST accused should be treated to restore fitness? The Appellant submits the answer is yes. The Court of Appeal disagreed. 2) Procedural history of this case 3. The Appellant was arrested for a charge of sexual assault on April12, 2010. On April 13, 2010, he was taken to a specially designated mental health court ("102 Court") at the Ontario Court ofJustice in downtown Toronto. The Crown successfully applied to the presiding judge, Justice Mary Hogan, to have the Appellant found UST. The Crown then brought an application for an order under s. 672.58 authorizing up to 60 days of a specified psychiatric treatment aimed at restoring the Appellant's fitness. After hearing from Dr. Waisman 1 that the statutory criteria had been met, Hogan J. granted the application. 20 4. Despite having consented to administer the treatment ordered by Hogan J., CAMH indicated that ie could not accept the Appellant for at least 6 days. Acting on the evidence 1 A provincially-licenced psychiatrist employed by the Centre for Addiction and Mental Health ("CAMH"). 2 As the evidence made clear, CAMH was speaking on behalf of both itself and the Penetanguishine Mental Health Centre ("PMHC"). APPELLANT'S FACTUM Page3 Part I -Statement of Facts adduced at the hearing, Hogan J. issued the treatment order and directed that the Appellant be taken "forthwith" to a mental hospital- "CAMH or its designate3 ". -Reasons for judgment of Court ofA ppeal, Appellant's Record. Vol. 1. at p. 95 (paras. 2 and 3); -Transcript of Proceedings before Hogan]., Appellant's Record. Vol. 1. at pp. 132-138 5. CAMH and PMHC immediately launched an appeal against the treatment order to the Court of Appeal for Ontario pursuantto s. 672.72 of the Code. Under s. 672.75 of the Code, the filing of the appeal automatically suspended the operation of the s. 672.58 order. However, the Hospitals applied to Lang J.A.4 three days later for an order allowing them to treat the Appellant immediately. The application was granted. After the treatment set out in Hogan J. ' s 10 order, the Appellant was made fit and the charge against him was stayed in June, 2011. -Notice ofA ppeal to Court ofA ppeal for Ontario, Appellant's Record. Vol. 1, at pp. 55-58; -Notice ofA pplication to Court ofA ppeal for Ontario, Appellant's Record. Vol. 1. at pp. 59-65; -Endorsement of Lang ].A., Appellant's Record. Vol. 1. at pp. 66-67 6. Although the lis involving the Appellant was moot, the Court of Appeal heard the Hospitals' appeal of Hogan J.'s order on December 14, 2011. The Court of Appeal was presented with a brief of the legislative history of Part XX.1 's treatment order regime, a brief of some recent government reports and academic writings, and a collection of fresh evidence materials from a variety of experts5 On May 24, 2012, the Court allowed the appeal and set • aside the order. 20 -Reasons for judgment ofC ourt ofA ppeal, Appellant's Record. Vol. 1. at pp. 97 and 98-99 (paras. 9 and 15-16) 7. The Appellant appeals against the decision of the Court of Appeal. The Appellant submits (1) that there was no basis to interfere with Hogan J.'s determination that the 3The "designate" is a reference to hospitals like PMHC with whom CAMH had established relationships to pool their supply of forensic beds for the purpose of satisfying Part XX.1 orders. 4Sitting as a single judge under s. 672.76(2)(a) of the Code. 5 As the "legislative facts" were the subject of the paper record introduced for the first time on appeal, this Court is free to take its own view of that fresh evidence. APPELLANT'S FACTUM Page4 Part I -Statement of Facts "consent" requirement ins. 672.62(1)(a) had been met in this case and (2) that if a proper construction of s. 672.62(1)(a) allows hospitals to decide unilaterally if or when a treatment order may issue, s. 672.62(1)(a) infringes s. 7 of the Charter. -Notice ofA ppeal, Appellant's Record. Vol. 1. at pp. 80-83 3) The Criminal Code regime governing the hospitalization of UST accused 8. When a mentally disordered accused has been found UST, the criminal process comes to a halt until the accused's fitness is restored. Part XX.1 authorizes courts to do one of three things as a consequence of a UST finding: (i) Under s. 6 72.45, the court may immediately hold a disposition hearing in which 10 it may make any ofthe dispositions authorized by s. 672.54 ofthe Code. (ii) Under ss. 6 72.46 and 6 72.4 7, the court may defer the disposition hearing to the Review Board and may either continue the accused's bail or remand the accused to the custody of a hospital. (iii) Under s. 672.58, the court may make a disposition6 that the accused be sent somewhere to receive up to 60 days of forcible treatment for the purpose of restoring their fitness. 9. Whichever one of these orders a court chooses to make, a party has a right of appeal to the provincial court of appeal on any question of law, f(;!,ct or mixed law and fact: s. 672.72. Accordingly, as a "party'' to as. 672.58 disposition (pursuant to s. 6 72.1), a hospital may appeal 20 against a treatment order and thereby immediately suspend the effect of that order pending review by an appellate court: s. 672.75. 10. Only a prosecutor may apply for a s. 672.58 treatment order. The treatment contemplated by such an order may not exceed a period of 60 days: s. 6 72.58. It may not include psychosurgery or electroconvulsive therapy: s. 672.61. Unlike assessment orders, there is no provision authorizing an extension of this 60-day period. The order may not be granted unless the court has heard evidence from "a medical practitioner that a specific 6Pursuant to s. 672.1, "disposition" includes orders under either s. 672.54 or s. 672.58.