



COURT OF APPEAL FOR ONTARIO

CITATION: Nelson v. Livermore, 2015 ONCA 688

DATE: 20151013

DOCKET: C59963

Gillese, Epstein and Roberts JJ.A.

IN THE MATTER OF an appeal from the Consent
    and Capacity Board, pursuant to the
Mental Health Act
, R.S.O. 1990, c.
    M.7, as amended

AND IN THE MATTER OF Rodney Nelson, a patient
    at Waypoint Centre for Mental Health Care  Oak Ridge Site, Penetanguishene, Ontario

AND IN THE MATTER OF the
Canadian Charter
    of Rights and Freedoms
, Part I of the
Constitution Act, 1982
, being
    Schedule B to the
Canada Act 1982
(U.K.), 1982, c. 11

BETWEEN

Rodney Nelson

Appellant

and

Dr. Craig Livermore and the Attorney General for
    Ontario

Respondents

Suzan E. Fraser, for the appellant

Janice Blackburn, for the respondent Dr. Craig Livermore

Yashoda Ranganathan and Hayley Pitcher, for the
    respondent the Attorney General for Ontario

Heard: September 22, 2015

On appeal from the order of Justice Peter H. Howden of
    the Superior Court of Justice, dated December 30, 2014, with reasons reported
    at 2014 ONSC 7477, dismissing an appeal from the Consent and Capacity Board,
    with reasons reported at 2013 CanLII 33987.

Gillese J.A.:

OVERVIEW

[1]

Rodney Nelson has been continually detained under certificates of
    involuntary admission and sequential renewals since his admission to hospital in
    March 2005. He appealed to the Superior Court from a March 15, 2013, decision
    of the Consent and Capacity Board (the Board) that confirmed his civil
    committal pursuant to s. 20(5) of the
Mental Health Act
, R.S.O. 1990, c. M.7
(the Appeal). The
    Board found that Mr. Nelson suffers from a mental disorder, the nature or
    quality of which will likely result in serious bodily harm to another person
    unless he is detained, and that he is not suitable to be a voluntary patient in
    a psychiatric facility.

[2]

The appeal judge dismissed the Appeal on the basis that this courts
    decision in
P.S. v. Ontario
, 2014 ONCA 900, 123 O.R. (3d) 651 rendered
    it moot.

[3]

On further appeal to this court, Mr. Nelson submits that he does not
    meet the criteria for involuntary admission, that he is unlawfully detained,
    and that his ongoing detention breaches his rights under ss. 7, 9, 11(h) and 12
    of the
Canadian Charter of Rights and Freedoms
. He asks that this
    court make findings to that effect, rescind the certificate of renewal of
    involuntary admission dated March 1, 2013, and order his release.

[4]

All the parties agree that the appeal judge erred in finding the entire
    Appeal to be moot and that he committed reversible legal error in declining to
    adjudicate on the matters that remained live. Mr. Nelson submitted that this
    court should nonetheless proceed to hear his appeal.  Alternatively, he asked
    that the matter be remitted to the Superior Court of Justice to be reheard.  Dr.
    Livermore and the Attorney General submitted that the more appropriate course
    was for this court to allow the appeal and remit the matter to the Superior
    Court of Justice for rehearing.

[5]

Following oral argument, this court allowed the appeal and remitted the
    matter to the Superior Court to be heard on an expedited basis, with reasons to
    follow. These are those reasons.

FACTS

[6]

Mr. Nelson has a lengthy history of criminal convictions for various
    offences including assault, sexual assault causing bodily harm, and gross indecency.
    He has also been convicted of breaches of probation, misrepresentation of his
    identity, and escape from custody. He has spent most of his time since at least
    1990 either incarcerated or in a maximum secure psychiatric facility.

[7]

Mr. Nelsons current detention commenced on March 10, 2005, when he was involuntarily
    committed to Waypoint (then called the Oak Ridge division of the
    Penetanguishene Mental Health Centre) pursuant to a Form 1 under the
Mental
    Health Act
, upon the expiry of a prison term for assault.

[8]

Since that time, the Board has reviewed Mr. Nelsons detention on a
    regular basis as required under the
Mental Health Act
. The Boards
    March 15, 2013, decision confirming his civil committal is the subject of this
    appeal.

THE BOARDS DECISION

[9]

The Board found that, as of the hearing date, Mr. Nelson exhibited
    symptoms associated with two types of mental disorder: paraphilia and
    antisocial personality disorder with psychopathy. It also found that Mr. Nelson
    maintained there was, and is, nothing wrong with him. The Board found that Mr.
    Nelson lacked insight into the fact that some of his behaviours, statements and
    actions are wrong and unacceptable to others.

[10]

Testing
    indicated that Mr. Nelsons rate of sexual and violent recidivism was 2.5 times
    higher than the average sexual offender. He refused to take any sex drive reduction
    medication, yet sought immediate discharge into the community. The Board found
    that until Mr. Nelson accepted and received this medication, behaviour
    modification therapy, and supervision in the presence of women, he posed a risk
    of harm to others, particularly young and vulnerable females. The Board also
    found that, if made a voluntary patient, Mr. Nelson would leave the hospital.

[11]

The
    Board concluded that Mr. Nelson suffered from a mental disorder of a nature or
    quality that would likely result in serious bodily harm to others unless he
    remained in the hospital and that he was not suitable for admission as a
    voluntary patient.

THE APPEAL TO THE SUPERIOR COURT

[12]

Mr.
    Nelson appealed the Boards decision to the Superior Court. The appeal judge
    dismissed the Appeal on the basis that this courts decision in
P.S. v.
    Ontario

rendered it moot, so it no longer matter[ed] whether the [Board]
    got it right in this one instance: at para. 4.

[13]

In
P.S. v. Ontario
, which was released in December 2014 while the Appeal
    was under reserve, this court held, at para. 3, that the provisions of the
Mental
    Health Act
dealing with involuntary committal violate s. 7 of the
Charter
by allowing for indeterminate detention without adequate procedural protection
    of the liberty interests of long-term patients. The court suspended the
    declaration of invalidity for 12 months.

ANALYSIS

[14]

It
    is clear that there are live issues to be decided in this matter and that the
    judge below erred in finding the Appeal to be moot.
P.S. v. Ontario
proceeded
    by way of application for
habeas corpus
and does not speak directly to
    the reasonableness of the Boards decision to confirm Mr. Nelsons civil committal,
    which was the core issue on the Appeal.

[15]

There
    is no final decision (other than that of mootness) before this court. Hence,
    there are no rulings or reasoning on any of the substantive issues that Mr. Nelson
    raised in the Appeal and, therefore, nothing upon which this court can
    reasonably adjudicate.

[16]

This
    court will ordinarily be reluctant to make any order concerning a matter that
    has not been the subject of an order appealed from:
Schaeffer v. Wood
,
    2011 ONCA 716, 107 O.R. (3d) 721, at para. 51, appeal to S.C.C. dismissed and
    cross-appeal allowed on other grounds, 2013 SCC 71, [2013] S.C.R. 1053. While
    this court did decide the matter in
Schaeffer
on its merits, it is
    important to note that the issues in
Schaeffer
raised questions of
    pure law and statutory interpretation. There were no factual issues in dispute
    before this court:
Schaeffer
, at para. 52.  By contrast, the Appeal
    requires that factual determinations be made and questions of mixed fact and
    law be decided.  For example, the Appeal requires a determination of whether
    the Form 1 was validly executed and whether Mr. Nelsons ongoing detention
    violates his
Charter

rights.

[17]

Thus,
    while this court has jurisdiction to hear the Appeal pursuant to s. 134 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, the appropriate relief is to remit
    the Appeal to the Superior Court of Justice for the performance by that court
    of its statutory review obligation set out in s. 80 of the
Health Care
    Consent Act, 1996
, S.O. 1996, c. 2, Sched. A.

DISPOSITION

[18]

Accordingly,
    the appeal is allowed and the Appeal is remitted to the Superior Court of
    Justice for rehearing, on an expedited basis.

Released: October 13, 2015 (E.E.G.)

E.E. Gillese
    J.A.

I agree. Gloria Epstein J.A.

I agree. Lois Roberts J.A.


