The Court of Appeal set aside an order for treatment forthwith pursuant to s. 672.58 of the Criminal Code for the purposes of making a detained accused fit for trial. The Court held the order to be improper on the basis that the hospitals did not have the necessary facilities available and did not provide consent to the order pursuant to s. 672.62 of the Code. The consent requirement in the Code did not violate s. 7 of the Charter despite the fact that concerns regarding the patient’s liberty and security of the person were triggered when such an order was made. The Court held that even if an accused’s rights are deprived, the consent requirement ensures that the deprivation occurs in a manner that accords with the principles of fundamental justice.

Administrative law – Mental health facility – Treatment plans –  Statutory provisions – Criminal Code – Charter of Rights and Freedoms – Life, liberty or security of the person – Prisons – Transfer of inmates – Judicial review –  Compliance with legislation –  Procedural requirements and fairness

Centre for Addiction and Mental Health v. Ontario, [2012] O.J. No. 2253, 2012 ONCA 342, Ontario Court of Appeal, May 24, 2012, J.M. Simmons, R.A. Blair and A. Hoy JJ.A.

The Appellants, the Centre for Addiction and Mental Health (“CAMH”) and the Mental Health Centre Penetanguishene (“MHCP”), appealed an order under s. 672.82 of the Criminal Code requiring that Mr. Conception be conveyed to the CAMH or be designated forthwith to receive treatment for the purpose of making him fit to stand trial for a period of up to 60 days. The order stipulated that Mr. Conception, who had been charged with sexual assault and had appeared before the Mental Disorder Court, was not to be sent to a correctional facility prior to being sent to the mental health facility. Correctional authorities complied with the order, which required Mr. Conception to submit involuntarily to anti-psychotic drug therapy; however, CAMH was unable to accommodate Mr. Conception’s needs as it did not have an available bed and would not have one for another six days. Despite this, Court Services delivered Mr. Conception to MHCP on the day the order was made and left him in a hallway.

CAMH appealed the order arguing that it was made without the necessary consent of CAMH as required by s. 672.62 of the Criminal Code and in circumstances where the hearing judge knew there were no beds available. The Court of Appeal agreed and allowed the appeal.

The Court rejected the argument that the CAMH need only give consent in a broad sense, in that it had the requisite skill and ability to administer the treatment ordered and agree that the treatment is necessary before the consent requirement under s. 672.62 is met. The Court held that a hospital that is unable to accommodate a patient for legitimate reasons is unable to consent to an order for treatment forthwith.

The amicus curae argued that where an unfit accused was required to be placed in a jail that was ill-equipped to address his or her mental health concerns, that individual faced a risk of harm to his or her mental and physical health, which triggered both liberty and security of the person concerns. The amicus therefore challenged the constitutionality of s.672.62 on that basis. The Court held that the consent requirement in s. 672.62 does not violate s. 7 of the Charter as it complies with society’s notions of procedural fairness by ensuring that an order is made in circumstances where it is capable of being implemented. Though the potential for deprivation of a person’s right to liberty and security of the person exists, such a deprivation would be made in a manner that accorded with the principles of fundamental justice.

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