



COURT OF APPEAL FOR ONTARIO

CITATION: Ducharme v. Hudson, 2021 ONCA 151

DATE: 20210308

DOCKET: M52261 (C69120)

Harvison Young J.A. (Motion
    Judge)

BETWEEN

Christopher Ducharme

Appellant (Appellant/Moving Party)

and

Dr. Craig Hudson

Respondent (Respondent/Responding
    Party)

Christopher Ducharme, acting in person

Antonietta F. Raviele, appearing as
amicus
    curiae

Julia L. Lefebvre and James P. Thomson,
    for the responding party

Heard and released
    orally: March 2, 2021 by video conference

REASONS FOR DECISION

A.

Overview

[1]

Mr. Ducharme, the moving party and appellant on
    appeal, is a patient at Waypoint Centre for Mental Health Care, which is a high-security
    forensic hospital in Penetanguishene. He is detained as a result of being found
    not criminally responsible on account of mental disorder in relation to
    criminal charges approximately five years ago. He has been diagnosed with
    unspecified schizophrenia spectrum and other psychotic disorder. Dr. Hudson,
    the responding party and respondent on appeal, is responsible for his care.

[2]

The Consent and Capacity Board (the Board) upheld
    Dr. Hudsons finding that Mr. Ducharme lacks capacity to consent to treatment.
    Mr. Ducharme filed a notice of appeal with the Superior Court on the same day
    that the Board made its decision, July 24, 2020. Mr. Ducharme has not taken
    steps to advance the appeal since then. Nonetheless, because Mr. Ducharme is
    appealing the Boards decision confirming Dr. Hudsons finding that Mr.
    Ducharme lacks capacity to consent to treatment, s. 18 of the
Health Care
    Consent Act, 1996
, S.O. 1996, c. 2, Sched. A suspends the commencement of
    treatment until the appeal has been determined.

[3]

In the meantime, Dr. Hudson proposes to treat
    Mr. Ducharme with antipsychotic medication to be administered by injection that
    would last approximately three months. Mr. Ducharme strongly opposes such
    treatment on grounds that will be discussed below. As provided for in s. 19(1)
    of the Act, Dr. Hudson moved before the Superior Court for an order to
    authorize this treatment pending the appeal of the Boards decision. The motion
    judge granted the order, giving reasons that are reported at
Ducharme v.
    Hudson
, 2021 ONSC 1286. During the hearing before the motion judge, Mr.
    Ducharme indicated that he intended to appeal the order. Accordingly, the
    motion judge suspended the coming into effect of his order to permit Mr.
    Ducharme to seek a stay at this court pending appeal of the motion judges
    order. The suspension expired on March 1, 2021.

[4]

Mr. Ducharmes motion for a stay of the motion
    judges order authorizing treatment was heard on March 2, 2021 before me. Later
    that day, I advised the parties at about 4:00 p.m. that the stay motion was
    dismissed with brief reasons to follow. These are those reasons.

[5]

The factual context, along with Mr. Ducharmes
    submissions before the motion judge, is fully set out in the motion judges reasons
    and need not be repeated here. The narrow issue before me is whether a stay pending
    appeal of the motion judges order should be granted.

B.

Procedure under the Act

[6]

The Act provides the statutory context for Mr.
    Ducharmes present motion for a stay.
Mr. Ducharmes
    appeal of the Boards decision, which confirms Dr. Hudsons finding that Mr.
    Ducharme lacks capacity to consent to treatment, engages the application of s.
    18 through s. 18(1). Thus, s. 18(3), particularly s. 18(3)(d)(ii), applies in
    Mr. Ducharmes case to suspend the commencement of Dr. Hudsons proposed treatment
    of
antipsychotic medication
until
    the appeal of the Boards decision has been determined
:

Treatment must not begin

18
(1) This section applies if,

(a) a
    health practitioner proposes a treatment for a person and finds that the person
    is incapable with respect to the treatment;

(b) before
    the treatment is begun, the health practitioner is informed that the person
    intends to apply, or has applied, to the Board for a review of the finding; and

(c) the
    application to the Board is not prohibited by subsection 32 (2).



Same

(3) In the circumstances described
    in subsections (1) and (2), the health practitioner shall not begin the
    treatment, and shall take reasonable steps to ensure that the treatment is not
    begun,

(a) until
    48 hours have elapsed since the health practitioner was first informed of the
    intended application to the Board without an application being made;

(b) until
    the application to the Board has been withdrawn;

(c) until
    the Board has rendered a decision in the matter, if none of the parties to the
    application before the Board has informed the health practitioner that he or
    she intends to appeal the Boards decision; or

(d) if a
    party to the application before the Board has informed the health practitioner
    that he or she intends to appeal the Boards decision,

(i) until
    the period for commencing the appeal has elapsed without an appeal being
    commenced, or

(ii) until the appeal of the Boards
    decision has been finally disposed of.

[7]

However, s. 19 specifically contemplates
    circumstances where, as here, there is a treatment proposed to be administered
    before the appeal of the Boards decision has been determined. As Dr. Hudson
    was proposing to treat Mr. Ducharme with antipsychotic medication before the
    final disposition of Mr. Ducharmes appeal of the Boards decision before the
    Superior Court, Dr. Hudson moved before the Superior Court for an order to
    authorize the treatment pending the appeal of the Boards decision, pursuant to
    s. 19:

Order authorizing treatment
    pending appeal

19
(1) If an appeal is taken from a Board or court decision that has
    the effect of authorizing a person to consent to a treatment, the treatment may
    be administered before the final disposition of the appeal, despite section 18,
    if the court to which the appeal is taken so orders and the consent is given.

[8]

Section 19(2) sets out the criteria to be
    considered and applied by the court in order that such an order authorizing
    treatment may be granted:

Criteria for order

(2) The court may make the order if
    it is satisfied,

(a) that,

(i) the
    treatment will or is likely to improve substantially the condition of the
    person to whom it is to be administered, and the persons condition will not or
    is not likely to improve without the treatment, or

(ii) the
    persons condition will or is likely to deteriorate substantially, or to
    deteriorate rapidly, without the treatment, and the treatment will or is likely
    to prevent the deterioration or to reduce substantially its extent or its rate;

(b) that the benefit the person is
    expected to obtain from the treatment outweighs the risk of harm to him or her;

(c) that the treatment is the least
    restrictive and least intrusive treatment that meets the requirements of
    clauses (a) and (b); and

(d) that
    the persons condition makes it necessary to administer the treatment before
    the final disposition of the appeal.

[9]

The motion judge granted the order authorizing
    treatment. Because Mr. Ducharme expressed his intention to appeal the order
    during the hearing, the motion judge suspended the coming into effect of the
    order to permit Mr. Ducharme to seek a stay. The issue before me at this point
    is whether Mr. Ducharme has satisfied the criteria for the granting of a stay.

C.

THE TEST GOVERNING THE GRANTING OF A STAY

[10]

The principles applicable to a motion to stay an
    order pursuant to r. 63.02(1) of the
Rules of Civil Procedure
, R.R.O.
    1990, Reg. 194 are well known. In
RJR-MacDonald Inc. v. Canada (Attorney
    General)
, [1994] 1 S.C.R. 311, at p. 334, the Supreme Court of Canada
    articulated a three-part test for obtaining a stay of a judgment pending
    appeal: (1) whether there is a serious question to be tried (i.e., to be
    determined on the appeal); (2) whether the moving party would suffer
    irreparable harm if the stay is not granted; and (3) whether the balance of
    convenience favours granting the stay.

[11]

These components of the test are not watertight
    compartments; the strength of one may compensate for the weakness of another: see
Circuit World Corp. v. Lesperance
(1997), 33 O.R. (3d) 674 (C.A.), at p.
    677. As well, they are interrelated in the sense that the overriding question
    is whether the moving party has shown that it is in the interests of justice to
    grant a stay: see
BTR Global Opportunity Trading Limited v. RBC Dexia
    Investor Services Trust
, 2011 ONCA 620, 283 O.A.C. 321, at para. 16;
Circuit
    World
, at p. 677. The party moving for the stay bears the onus of proving that
    it should be granted.

[12]

The factors to be considered by a motion judge
    are generally designed to assess the prejudice to the parties if the order
    sought is granted or refused: John Sopinka, Mark A. Gelowitz & W. David
    Rankin,
Sopinka and Gelowitz on the Conduct of an Appeal
, 4th ed.
    (Toronto: LexisNexis Canada, 2018), at §2.187.

(a)

Is there a serious question to be determined on
    the appeal?

[13]

Mr. Ducharme has filed a notice of appeal with
    respect to the motion judges order. He made a number of submissions before this
    court, most of which he also made before the motion judge:

·

There is no need for forced medication. He
    advised Dr. Hudson that all Dr. Hudson needs to do is to give him access to a
    recording studio so that he can prepare a demo tape of his musical and dance
    talent for the music industry. He says that he has promised Dr. Hudson that he
    will acknowledge that he suffers from grandiose delusions and agree to
    treatment if the demo does not make him a hit as soon as it hits the music
    industry. The merit of this offer, he says, is proven by the fact that Dr.
    Hudson did not accept the offer, but rather applied for an order that he be
    forcibly medicated.

·

It is the medication itself that causes him to
    be violent, not the other way around. All but one of his violent acts in the
    past occurred when he was medicated.

·

He is not ill. Rather, the authorities,
    including Waypoint, obtain millions of dollars by having him and people like
    him detained and prevented from telling the world what is really going on there
    and the extent to which he and others are mistreated. Were he permitted to
    become a music sensation, he would have a platform to expose this scam along
    with the mistreatment of patients imposed on himself and people like him. Dr.
    Hudson would go to jail.

·

He was shocked by the extent to which his own witnesses
    at the hearing turned against him and committed perjury.

·

His appeal is not likely to succeed. (At least he
    seemed to implicitly acknowledge this. However, it was unclear whether he was
    referring to the appeal from the motion judges order or the pending appeal to
    the Superior Court of the underlying Board finding that he lacked capacity to
    make treatment decisions.)

[14]

Moreover, he strongly objects to the
    respondents position that he has not pointed to any legal reason why treatment
    should be delayed because the stuff they are doing here is not legal. By way
    of example, he stated that when he had a nervous breakdown, they put him in
    restraints, and this has led to PTSD.

[15]

The respondent Dr. Hudson takes the position
    that there is little merit to the appeal of the motion judges order. The
    motion judge heard
viva voce
evidence from the parties, including two
    witnesses called by Mr. Ducharme.

[16]

The bar for a finding that there is a serious
    question to be tried is admittedly low: see
RJR-Macdonald
, at p. 337;
Belton
    v. Spencer
, 2020 ONCA 623, 58 C.P.C. (8th) 16, at para. 25. In my view, the
    chances of a successful appeal of the motion judges order are slim, at best.

[17]

First, the underlying question of his capacity
    depends on the outcome of the appeal from the Board finding that he lacks
    capacity. Although Mr. Ducharme filed a notice of appeal on the same day that
    the Board decision was rendered, he has taken no steps to further or perfect
    the appeal since. The motion judge is the case management judge on this matter,
    and as his reasons indicate, an expedited appeal from the Board decision, if
    under two hours, could be heard in late April. While
amicus
indicated
    before me that she is willing to assist Mr. Ducharme with filing a factum and
    completing the procedural steps necessary for the appeal of the Boards
    decision to go forward, it is not clear to me that he will be willing or able
    to either instruct counsel or accept and cooperate with the assistance provided
    by
amicus
. This will dramatically affect the chances of success on the
    appeal of the Boards order. In light of this, the chances of success on the
    appeal of the motion judges order authorizing treatment would be very weak.

[18]

Second, Mr. Ducharme acknowledged during the
    hearing before me that his main goal is to prevent the administration of the
    medication which he believes causes rather than alleviates his symptoms. He
    stated that his quality of life in his cell is not so bad; he has a floor to
    dance on, has people who do his laundry, and can continue to write letters to
    the outside world to communicate the abuse that is going on in the institution.
    He said he would rather spend the rest of his life in that cell than be medicated.
    This contributes to my concern that his appeal to the Superior Court, if it is
    heard at all, will be unlikely to succeed.

[19]

Finally, and importantly, the motion judge
    scrupulously applied the appropriate test to be considered in granting an order
    under s. 19(2). He required the respondent to take him specifically through the
    evidence on each point. He carefully listened to Mr. Ducharmes submissions, as
    evidenced by the fact that he set them out in his reasons in significant
    detail. He related the evidence and the facts that he found to each of the
    criteria set out in s. 19(2). The evidence filed by the respondent and accepted
    by the motion judge was extensive and clearly explained in his reasons. This
    court owes them deference.

(b)

Would the moving party suffer irreparable harm
    if the stay is not granted?

[20]

The irreparable harm stage of the analysis
    focuses on the harm the moving party may suffer if the stay is not granted: see
RJR-MacDonald
, at pp. 340-41. A court must ascertain whether a refusal
    to grant the stay could so adversely affect the moving partys interests that
    the harm could not be remedied if the eventual decision on the merits does not
    accord with the result of the stay motion: see
RJR-MacDonald
, at p.
    341. Irreparable, in this sense, refers to the nature of the harm suffered
    rather than its magnitude: see
RJR-MacDonald
, at p. 341. It is harm
    which either cannot be quantified in monetary terms or which cannot be cured: see
RJR-MacDonald
, at p. 341. Irreparable harm may occur where the failure
    to grant a stay would render any subsequent appeal moot: see Sopinka, Gelowitz
    & Rankin, at §2.192.

[21]

While Mr. Ducharme did not directly address the
    irreparable harm test, his submissions make it clear that his position is that
    the proposed treatment is a very serious violation of his bodily integrity and
    he would rather spend his life in a cell than be medicated with drugs that make
    him dumb and poop blood and stop him from dancing. He explained that his
    mind did not stabilize until he had been off medication for over a year. This,
    he says, is evidenced by the fact that he has not hit anyone in the two years
    he has been off medication, which at 62 and 200 lbs, with martial arts
    training, he could have done had he wanted to. I note in passing that there was
    nothing in evidence before this court to support Mr. Ducharmes assertions of
    the undesirable side effects of the medications. He states that he is as
    capable as anyone of assessing the risk versus benefit consideration, which is
    a consideration under s. 19(2)(b).

[22]

The respondent acknowledges that forced
    treatment will constitute an intrusion upon Mr. Ducharmes bodily integrity which
    would not be undone even if the motion judges decision were to be overturned.
    He submits, however, that Mr. Ducharme will suffer irreparable harm if he does
    not receive treatment. The evidence, which the motion judge accepted, is that
    Mr. Ducharme will not improve spontaneously. Until he receives medication, he
    will remain psychotic and will suffer from delusions that result in threatening
    behaviour, acting out violently, and other destructive conduct such as smearing
    feces on his walls. The lack of medication generally increases his risk to the
    degree that he is kept in seclusion. With treatment, the expectation is that he
    will be able to obtain greater freedom at Waypoint.

[23]

There is no denying the reality that, given Mr.
    Ducharmes opposition to treatment, along with his size and general state, the
    intrusion on his bodily integrity necessary to administer the injection will be
    significant, though, as the motion judge noted, brief. And the evidence
    overwhelmingly supports the respondents position that it will dramatically
    ameliorate Mr. Ducharmes psychosis and delusions. As the motion judge noted, this
    evidence includes at least three occasions when Mr. Ducharme was medicated and
    saw his health improve. For example, a clinical note observed that when he was
    transferred to Ontario Shores, and complying with medications, he was pleasant
    and calm during interactions, generally reported his mood as being good, and
    socialized appropriately with co-peers and engaged well with staff.

[24]

Nor did the motion judge neglect to consider
    whether there was a less intrusive way of achieving a better life for Mr.
    Ducharme. His conclusion that a single injection lasting three months would be minimally
    intrusive was well supported in his reasons and requires deference from this
    court. In my view, Mr. Ducharme would not suffer irreparable harm if the stay
    were not granted.

(c)

Does the balance of convenience favour granting
    a stay?

[25]

The balance of convenience analysis considers
    which of the parties would suffer greater harm from the granting or refusal of
    the motion to stay: see
RJR-MacDonald
, at p. 342. The Supreme Court found
    it appropriate to consider the public interest and rejected an approach that
    would exclude consideration of any harm not directly suffered by a party to the
    motion: see
RJR-MacDonald
, at p. 344, decided in the context of an
    interlocutory
Charter
proceeding. The interests of third parties may also
    be a relevant consideration at the balance of convenience stage: see e.g.,
M
    & M Homes Inc. v. 2088556 Ontario Inc.
, 2020 ONCA 134, 51 C.P.C. (8th)
    253, at para. 46;
Buccilli v. Pillitteri
, [2013] O.J. No. 6110, at
    para. 48.

[26]

The respondent submitted that this aspect of the
    test is not useful because the question has little or no applicability in this
    case. Dr. Hudson has no personal interest in the outcome.

[27]

I agree with the respondent that Dr. Hudson has
    no personal interest in the matter and would not be harmed personally by the
    granting or refusal of the stay. However, in this case, harm to third parties
    or non-parties is relevant. If the stay were granted, staff at the hospital
    would continue to be at risk from Mr. Ducharmes behaviour and his mood, which
    can be explosive and would require staff to continue to be vigilant at all
    times. Setting aside the question of whether nurses and staff at Waypoint are
    really third parties in the sense discussed in
M & M
and
Buccilli
,
    it is clear that they would suffer harm if the stay were granted. On the other
    hand, Mr. Ducharme would suffer harm to his bodily integrity if the stay is not
    granted and treatment is administered. I have concluded above that such harm to
    Mr. Ducharme is not irreparable. In this case, third parties including the
    staff at Waypoint would suffer greater harm than Mr. Ducharme because they are
    at greater risk of physical harm given his explosive nature when untreated, and
    the balance of convenience does not favour granting a stay.

(d)

Is it in the interests of justice to grant a
    stay?

[28]

I have concluded that all three components of
    the
RJR-MacDonald
test point in the direction of refusing the stay.
    This conclusion finds further support in the overarching consideration of
    whether it is in the interests of justice to grant a stay.

[29]

If the motion judges order is stayed, Mr.
    Ducharme will remain untreated while he pursues his two appeals. As I have
    indicated, I am not satisfied that these appeals can proceed as quickly or
    efficiently as possible while Mr. Ducharme is untreated, with the result that
    he will remain in seclusion, with psychotic delusions, for some considerable
    time. He would also be untreated in his proceedings before the Ontario Review
    Board. I am satisfied from the record before me, including Mr. Ducharmes own
    submissions, that he will continue to constitute the risk he poses to others
    until treatment reduces his aggression and threatening behaviour.

[30]

Mr. Ducharme is an intelligent and articulate
    man in a tragic situation. When medicated, he has been appropriately social. A
    clinical note observed that when medicated, he socialized appropriately with
    co-peers and engaged well with staff. As the motion judge noted, when Mr.
    Ducharme was medicated in the past, he saw his health improve. With decreases
    in symptoms, such as violence, he experienced greater liberty in his living
    conditions and could be released from high-security isolation and perhaps
    obtain greater privileges in the facility.

[31]

By contrast, when he has not been medicated, he
    has at times been violent. As a result, he has lived in a small cell for
    roughly two years and has only left his cell in restraints. Despite Mr.
    Ducharmes assertions to the contrary before me, I am unable to accept his
    submission that he would prefer to stay in his tiny cell, with a floor to dance
    on, free to send letters to let the world know of his mistreatment. His current
    existence is an extremely unhappy one in which he is spending virtually all his
    time in a very small area, cannot be taken out without restraints, and experiences
    psychotic delusions that cause him obvious suffering.

[32]

He clearly has potential that is currently
    untapped, although I cannot know whether that potential extends to the realm of
    music and dance. However, he has been a prisoner not only because of the small
    cell he has lived in for at least two years, but also because of the psychosis
    from which he suffers.

[33]

Our law takes the right to bodily integrity very
    seriously indeed, and I would observe that the entire process set out in ss.
    17-19 of the Act reflects that very important principle. But the law recognizes
    that in certain cases, this right must give way to permit some intrusion upon
    that bodily integrity in order to allow that person a better quality of life when
    they are unable to comprehend the need for or benefits of treatment because of
    their mental illness. As the structure of the legislation reflects, this is
    something that the law permits in particular circumstances. That is precisely
    why the criteria in s. 19(2) are so important.

[34]

The motion judge found, after careful
    consideration, that Mr. Ducharmes case met each of the criterion. I am unable
    to find that the interests of justice warrant granting a stay of the order
    authorizing treatment which would, as the motion judge noted, have the effect
    of prolonging his suffering unnecessarily.

D.

Disposition

[35]

The motion for a stay pending appeal is
    dismissed.

A.
    Harvison Young J.A.


