



COURT OF APPEAL FOR ONTARIO

CITATION: Thompson v. Ontario (Attorney General), 2016 ONCA
    676

DATE: 20160913

DOCKET: C57803

Sharpe, Lauwers and Miller JJ.A.

BETWEEN

Karlene Thompson and
Empowerment
    Council, Systemic Advocates in Addictions and Mental Health

Applicants (Appellants)

and

Attorney General of Ontario

Respondent (Respondent)

Marshall A. Swadron and Sarah M. Latimer, for the appellant
    Empowerment Council, Systemic Advocates in Addictions and Mental Health

Rochelle S. Fox and Savitri Gordian, for the respondent

Karen R. Spector and C. Tess Sheldon, for the intervener
    ARCH Disability Law Centre

David Morritt and Vanessa Cotric, for the intervener
    Canadian Civil Liberties Association

Heard: June 20, 2016

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice, dated September 12, 2013, with reasons
    reported at 2013 ONSC 5392

Sharpe J.A.:


[1]

Following the tragic murder of Brian Smith, a well-known Ottawa
    sportscaster, by an individual who suffered from untreated schizophrenia, the
    Ontario Legislature enacted
Brians Law (Mental Health Legislative
    Reform), 2000
, S.O. 2000, c. 9.

[2]

Brians Law
expanded the criteria
    for civil committal and introduced a regime of community treatment orders
    (CTOs) which provide for community-based treatment and supervision for persons
    with past psychiatric hospital admissions. The appellants argue that
Brians
    Law
violates several provisions of the
Charter
    of Rights and Freedoms,
with a particular focus on the s.
    7 right to liberty and security of the person.


[3]

The application judge gave detailed reasons for dismissing the
Charter
challenge. I am in substantial agreement with the reasons of the
    application judge and accordingly would dismiss this appeal.

The applicants

[4]

The applicant Karlene Thompson has a lengthy history of mental illness.
    She was detained in a hospital as an involuntary patient and was also the
    subject of a CTO. She resisted treatment and complained of the adverse side
    effects she suffered from neuroleptic drugs. Without treatment, her hygiene and
    ability to function were severely compromised. With treatment, her hygiene and
    ability to function improved. However, she suffered side effects including
    dramatic weight gain, excessive salivation and pain in her legs and at her
    injection sites. She left Canada in 2007 before this application was heard.

[5]

The application has been carried forward by the Empowerment Council,
    Systematic Advocates in Addictions and Mental Health, an advocacy group that
    represents the interests of individuals who are involved with mental health and
    addiction services. The Empowerment Council was given public interest standing
    in April, 2011:
Thompson v. Attorney General of Ontario
, 2011 ONSC 2023.

[6]

The appellants also led evidence of another patient, Amy Ness, who
    had been the subject of involuntary committal and a CTO. She strongly resisted
    treatment with neuroleptic drugs, complained of side effects and says that she
    only agreed to a CTO as a way to avoid involuntary committal. While her
    symptoms and ability to function improved significantly with treatment, she
    credited factors other than neuroleptic drugs for any improvement.

The legislation

[7]

Before the enactment of
Brians Law
in 2000, individuals could be involuntarily committed for treatment under the
Mental
    Health Act
, R.S.O. 1990, c. M.7 if they were apparently
    suffering from mental disorder that would likely result in serious bodily harm
    to another person or to themselves (the Box A criteria).
Charter
challenges to the Box A criteria were rejected:
C.B. v.
    Sawadsky
, [2005] O.J. No. 3682 (S.C.J.), affd on other grounds (2006), 82
    O.R. (3d) 661 (C.A.), leave to appeal to S.C.C. refused, [2006] S.C.C.A. no.
    479;
Robertson v. Canada (A.G.)
, 2000 CarswellOnt 318 (S.C.J.);
Starnaman
    v. Penetanguishene Mental Health Centre
, [1994] O.J. No. 1958 (Gen. Div.), 
    affd (1995), 24 O.R. (3d) 701 (C.A.).

[8]

Brians
    Law
expanded the grounds for involuntary committal. It
    added s. 15(1.1), known as the Box B criteria. These allow for a 72 hour
    restraint and examination period in a psychiatric facility where the physician
    has reasonable cause to believe that the person is likely to suffer
    substantial mental or physical deterioration or serious physical impairment if
    the person:

(a) has previously received treatment for mental
    disorder of an ongoing or recurring nature that, when not treated, is of a
    nature or quality that likely will result in serious bodily harm to the person
    or to another person or substantial mental or physical deterioration of the
    person or serious physical impairment of the person; and

(b) has shown clinical improvement as a result of
    the treatment,

(c) is apparently suffering from the same mental
    disorder as the one for which he or she previously received treatment or from a
    mental disorder that is similar to the previous one.

[9]

The person must also be incapable of consenting to treatment and the
    consent of the persons Substitute Decision Maker (SDM) must be obtained.

[10]

Section
    16(1.1) allows a Justice of the Peace to order an assessment where criteria
    mirroring those set out in s. 15(1.1) are met.

[11]

Section
    20(1.1) expands the grounds for involuntary admission to a
psychiatric facility i
f the physician, having
    examined the person, is of the opinion that criteria mirroring those set out in
    s. 15(1.1) are met, provided the person is incapable of consenting to
    treatment, the consent of the persons SDM has been obtained, and the person is
    not suitable as an informal or involuntary patient. The Act provides that an
    involuntarily admitted person is entitled to be notified (i) of his or her right
    to ask the Consent and Capacity Board (CCB) to review the matter and (ii)
    that he or she has the right to counsel and advice from a rights adviser.

[12]

Prior to the enactment of
Brians Law
, there was no provision for any alternate and less restrictive form
    of compulsory treatment for individuals who met the criteria for involuntary
    committal. The second innovation in
Brians Law
was to introduce CTOs. The purpose of a CTO, as described in s.
    33.1(3), is to provide a person suffering from serious mental disorder with a comprehensive
    plan of treatment in the community and in a less restrictive setting than
    detention in a mental health facility. CTOs are intended to remedy the
    revolving door problem of individuals who are admitted for treatment, improve
    with treatment, but upon release stop treatment, care or supervision, relapse
    and are then re-admitted as involuntary patients.

[13]

Section 33.1(4) sets out the criteria for a CTO:

(a) during the previous three-year period, the
    person,

(i) has been a patient
    in a psychiatric facility on two or more separate occasions or for a cumulative
    period of 30 days or more during that three-year period, or

(ii) has been the
    subject of a previous community treatment order under this section;

(b) the person or his or her substitute
    decision-maker, the physician who is considering issuing or renewing the
    community treatment order and any other health practitioner or person involved
    in the persons treatment or care and supervision have developed a community
    treatment plan for the person;

(c) within the 72-hour period before entering
    into the community treatment plan, the physician has examined the person and is
    of the opinion, based on the examination and any other relevant facts
    communicated to the physician, that,

(i) the person is
    suffering from mental disorder such that he or she needs continuing treatment
    or care and continuing supervision while living in the community,

(ii) the person meets
    the criteria for the completion of an application for psychiatric assessment
    under subsection 15 (1) or (1.1) where the person is not currently a patient in
    a psychiatric facility,

(iii) if the person
    does not receive continuing treatment or care and continuing supervision while
    living in the community, he or she is likely, because of mental disorder, to
    cause serious bodily harm to himself or herself or to another person or to
    suffer substantial mental or physical deterioration of the person or serious
    physical impairment of the person,

(iv) the person is able
    to comply with the community treatment plan contained in the community
    treatment order, and

(v) the treatment or
    care and supervision required under the terms of the community treatment order
    are available in the community;

(d) the physician has consulted with the health
    practitioners or other persons proposed to be named in the community treatment
    plan;

(e) subject to subsection (5), the physician is
    satisfied that the person subject to the order and his or her substitute
    decision-maker, if any, have consulted with a rights adviser and have been
    advised of their legal rights; and

(f) the person or his or her substitute
    decision-maker consents to the community treatment plan in accordance with the
    rules for consent under the
Health Care Consent Act, 1996
.

[14]

The patient or his or her SDM must consent to the CTO and undertake
    to comply with the CTO. If the patient fails to comply, the physician may issue
    an order for the patient to be brought in by the police for examination. To do
    so, the physician must have reasonable cause to believe that the patient
    continues to meet the criteria for a CTO and that reasonable steps have been
    taken to find the patient and inform him or her of the possible consequences of
    non-compliance. A CTO lasts for six months and may be renewed on notice to the
    patient. The legislation provides for legal advice to be given to the subject
    of a CTO before the order is made or renewed.

The Position of the Appellants

[15]

The focus of the appellants constitutional challenge is on two central
    features of the legislation. First, the appellants challenge the added Box B
    criterion: likely to suffer substantial mental or physical deterioration or
    serious physical impairment for involuntary committal. Second, the appellants
    challenge the CTO regime as an unjustifiable form of compulsory treatment.

[16]

Before the application judge, the appellants argued that the purpose
    of the legislation was protection of the public. That purpose, they argued,
    could not survive scrutiny as it is based upon a false stereotype that persons
    suffering from mental illness are prone to violence and pose a higher risk to
    public safety. The application judge agreed that there was no evidence to
    support the proposition that those suffering from mental disorder pose a disproportionate
    threat to public safety. However, he rejected the contention that public safety
    was the sole purpose of the legislation. He found that a review of the
    legislative debates, the language of the Act and the criteria for involuntary
    admission and CTOs made it clear that that the governments purpose was also to
    provide an improved treatment regime for all seriously mentally ill persons.

[17]

On appeal, the focus of the appellants attack on the legislation is
    that it constitutes an unjustifiable extension of forced treatment with
    neuroleptic medication. In making that submission, they rely on the evidence
    from their expert witnesses, Prof. Geoffrey Reaume, an historian and professor
    of critical disability studies, and Prof. David Cohen, a professor of social
    work. They are of the opinion that anti-psychotic medication is not effective
    as a treatment for mental disorder and that its side effects are severe. The
    appellants experts also maintain that coerced treatment undermines the
    patients dignity and sense of self-worth and can undermine recovery.

[18]

The appellants also rely on studies doubting the effectiveness of
    CTOs, two examining similar schemes in the United States, and another, the
    Dreezer Report, done in Ontario pursuant to s. 33.9 of the Act (which requires
    periodic reviews of the effectiveness of CTOs). That study concluded that [i]t
    is clear that CTO clients have, overall, benefited greatly from the CTO
    program but cautioned that it was not clear that the benefits were
    attributable to the legal restrictions inherent in CTOs. The Report suggested
    that satisfactory services could be provided in other ways and that absent some
    evidence to demonstrate that legal compulsion was needed, there is no
    justification to continue the program in its current form in the long term.

[19]

The evidence led by the appellants was challenged and countered by
    evidence led by the Attorney General. Dr. Richard OReilly, an experienced
    clinical psychiatrist, researcher and author of scholarly papers on many
    psychiatric subjects  including the effectiveness of CTOs in treating patients
    with mental illness  agreed that neuroleptic medications only target symptoms
    and do not provide a cure and that some patients do not benefit from the
    treatment. However, Dr. OReilly maintained that for many people, antipsychotic
    medication reduces the intensity of their symptoms, reduces the risk of relapse
    and suicide, allows for other forms of intervention and makes it possible to
    treat successfully a large number of patients with schizophrenia and other
    psychotic illnesses. Dr. OReilly recognized that, as with most medications,
    there are risks and benefits associated with antipsychotic drugs. In his
    opinion, however, antipsychotic drugs are properly prescribed by physicians
    because the benefits outweigh the risks and without treatment individuals who
    suffer from mental illness would be distressed, dysfunctional, and have a high
    risk of adverse outcomes such as suicide.

[20]

The appellants contend that the application judge erred in law by
    failing to make findings to resolve significant differences between the expert
    witnesses. They focus on certain comments the application judge made as to the
    limits of what he was prepared to decide. The application judge concluded, at
    para. 89, that there is a significant disagreement in the mental health
    professional community as to the effectiveness of antipsychotic or neuroleptic
    treatment and as to the efficacy of community based treatment that is based
    upon coercion. He added, at paras. 90-91:

The only conclusions that can be fairly drawn from the
    conflicting empirical studies that are contained in the record before me are
    (1) the applicants have presented a compelling case that the impugned
    amendments enacted by
Brians Law
may not be working as intended and
    may be causing more harm than good; and (2) the Minister of Health and
    Long-Term Care would be well advised to consider a comprehensive review of the
    impact and effectiveness of both the Box B provisions and the CTO regime.

But neither of these conclusions can support a finding of
    overbreadth, arbitrariness or gross disproportionality. Indeed, the case law is
    clear that where the evidence is inconclusive and the efficaciousness of a
    legislative remedy is difficult to measure, it is for the legislature and
not the courts, to decide upon the appropriate course
    of action.

[21]

The application
    judge then cited
Cochrane v. Ontario (Attorney General)
, 2008 ONCA
    718, 92 O.R. (3d) 321, at paras. 26-29, leave to appeal to S.C.C. refused 33067
    (June 11, 2009), where this court stated:

[W]here the risk of harm or the efficaciousness of Parliament's
    remedy is difficult or impossible to measure scientifically it is for the
    legislature, not the courts, to decide upon the appropriate course of action,
    provided there is evidence of a reasoned apprehension of harm. It was not the
    role of the application judge to make detailed factual findings as that would
    lead to micromanagement of Parliament's agenda. Her task was rather to apply
    the relevant constitutional control; namely, the general principle that the
    parliamentary response must not be grossly disproportionate to the state
    interest sought to be protected: see
Malmo-Levine
, at para. 133.

[22]

The appellants say that the application judge erred by failing to
    make the critical findings on the disputed expert evidence and that had he done
    so, he would have found that forced treatment with neuroleptic medication is
    ineffective and that it causes more harm than good. Those findings, say the
    appellants, would be fatal to the constitutional validity of the legislation.

[23]

The appellants position is supported by two interveners, the
    Canadian Civil Liberties Association and the ARCH Disability Law Centre.

Issues

[24]

The appellants raise three issues which I will address in the
    following manner:

1.
Did the application judge err by failing to make adequate findings
    on the expert evidence and did he misapply the principles of fundamental
    justice?

2.
Did the application judge err in his s. 7 analysis by:

a.

Failing to properly consider the purpose of the legislation;

b.

Improperly importing s. 1 considerations into the s. 7 analysis;

3.
Did the application judge err by failing to find
Brians
    Law
violates ss. 9, 10, 12 and 15 of the
Charter
?

Analysis

(1)

Did the application judge err by failing to make
    adequate findings on the expert evidence and did he misapply the principles of
    fundamental justice?

(a)

What findings was the application judge required
    to make?

[25]

An application judge need not make conclusive findings on every
    factual issue raised by the parties or that arises from the evidence they
    adduce. A failure to make a factual finding warrants appellate intervention
    only where it gives rise to the reasoned belief that the trial judge must have
    forgotten, ignored or misconceived the evidence in a way that affected his
    conclusion:
Van de Perre v. Edwards
, 2001 SCC
    60, [2001] 2 S.C.R. 1014 at para. 15. The application judges refusal to make
    the findings of fact urged by the appellants does not meet this standard. In my
    view, the application judge considered all of the evidence and made sufficient
    findings to dispose of the legal issues before him. He properly refused to make
    definitive findings on conflicting evidence relating to matters that were not
    germane to the legal issues he was required to resolve.

[26]

As I have noted, the appellants led evidence indicating that
    antipsychotic or neuroleptic medication may not be effective, while the
    Attorney General led evidence that these medications are beneficial. The
    appellants say that the application judge erred in law by failing to make
    definitive findings to resolve that difference of opinion. The appellants place
    particular emphasis upon comments the application judge made in his reasons
    relating to the debate in the mental health professional community as to the
    effectiveness and use of antipsychotic or neuroleptic medication. The
    application judge noted, at para. 89, that there was considerable disagreement
    in the mental health professional community and the relevant scientific
    literature about the effectiveness of modern psychiatric practices in the
    treatment of serious mental illness. He also observed at para. 89 that there
    is significant disagreement about the efficacy of a community treatment regime
    that is based on coercion and at para. 90 that the CTO regime may not be
    working as intended and may be causing more harm than good and that the
    minister would be well advised to consider a comprehensive review of the
    impact and effectiveness of both the Box B provisions and the CTO regime.

[27]

To consider the relevance of these comments and the appellants
    arguments, it is necessary to put the issue of expert evidence and the findings
    the application judge was required to make into proper legal perspective. It is
    for that reason that I address the appellants ground of appeal relating to the
    misapplication of the principles of fundamental justice together with the issue
    of the adequacy of the findings relating to the expert evidence.

[28]

In
Canada (Attorney General) v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101, the case most heavily relied
    upon by the appellants, the court stated, at para. 49, that the first instance
    judge is required to evaluate and weigh expert evidence as to social or
    legislative facts 
in order to arrive at the conclusions of fact
    necessary to decide the case
 [emphasis added].

[29]

What conclusions of fact were necessary to decide this case?

[30]

Section 7 of the
Charter
provides:
    Everyone has the right to life, liberty and security of the person and the
    right not to be deprived thereof except in accordance with the principles of
    fundamental justice.

[31]

A person claiming that a law is inconsistent with s. 7 must show
    that: (1) the law limits the persons right to life, liberty or security of the
    person; and (2) the limits are not in accordance with the principles of
    fundamental justice.

[32]

The Attorney General conceded that the impugned provisions of
Brians
    Law

limited the liberty and security of the person of
    mental health patients who were subject to involuntary commitment or CTOs. The
    contentious and determinative issue was this: could the appellants demonstrate
    that the limit on liberty and security of the person was in not accordance with
    the principles of fundamental justice?

[33]

In my view, the application judge quite properly focused on and made
    the required factual findings to resolve the critical issues that arose on the
    appellants s. 7 challenge, namely, were the impugned provisions of
Brians
    Law
arbitrary, overly broad, or grossly disproportionate.

(b)

Arbitrariness

[34]

Bedford
, at para. 111, holds that a law will be arbitrary if there is no
    rational connection between the object of the measure that causes the s.7
    deprivation and the limits it imposes on life, liberty, or security of the
    personA law that imposes limits on these interests in a way that bears
no
    connection
to its objective arbitrarily impinges on those
    interests [emphasis in original]. In
Carter v. Canada (Attorney
    General)
, 2015 SCC 5, [2015] 1 S.C.R. 331, the Court
    explained, at para. 83, that an arbitrary law is one that is not capable of
    fulfilling its objectives. It exacts a constitutional price in terms of rights,
    without furthering the public good that is said to be the object of the law.

[35]

With respect to arbitrariness, the application judge found, at para.
    98, that [i]t cannot be reasonably said that the impugned provisions bear no
    relation to, or are inconsistent with the public health and public safety
    purposes of the legislation. He pointed out, at para. 99, that there is
    evidence showing that application of the Box B criteria facilitates faster
    treatment for persons incapable of consenting to treatment with recurrent or
    on-going mental illness. Box B can only be applied where past treatment has
    resulted in clinical improvement and where substantial mental or physical
    deterioration would likely arise without treatment. The application judge found
    that without the Box B criteria, physicians could not assess or hospitalize
    patients until they deteriorated to the point where they posed a risk of
    serious bodily harm to themselves or to others. The application judge also
    found that the Box B criteria increase prospects for a better long-term outcome
    by minimizing prolonged delays in receiving needed treatment.

[36]

Likewise, he found, at para. 100, the CTO scheme rests on similarly
    strict criteria, requires the consent of the individual or the SDM, and imposes
    procedural protections to ensure respect for the rights of the individual.

(c)

Overbreadth

[37]

Legislation that is drafted more broadly than is necessary to attain
    its objective and thereby impinges upon a protected right or freedom may be
    struck down under section 7 of the
Charter
on
    grounds of overbreadth. In
Bedford
, the
    Supreme Court stated, at para. 113, overbreadth allows courts to recognize
    that the law is rational in some cases, but that it overreaches in its effects
    in others.

[38]

At para. 94, the application judge found that there are individuals
    who suffer from mental illness who respond to treatment while in hospital but
    who repeatedly stop taking medication after discharge. These individuals
    relapse, experience substantial mental and physical deterioration, and are
    readmitted to hospital. The application judge was satisfied by the evidence
    that the Box B criteria can be applied to this specific group by trained
    medical professionals on an individualized basis in a way that avoids both stereotypical
    assumptions about those who suffer from mental illness and the problem of
    overbreadth.

[39]

At para. 95, the application judge found that the community
    treatment plan, which underlies the CTO, is individualized and tailored to the
    persons circumstances. He found that the CTO provisions set out strict
    criteria as to when a CTO may be issued, and include significant procedural and
    substantive protections. The CTO provisions ensure that persons subject to a
    CTO and their SDMs (where applicable) receive rights advice and a right to
    retain and instruct counsel before a CTO is issued. The purpose of this is to
    ensure that they have timely rights advice about legal options including, for
    example, seeking review of findings of incapacity to consent to treatment or
    involuntary admission.

[40]

The application judge observed at para. 97 that while there was some
    evidence to the contrary, CTOs do bring stability to the lives of many
    individuals. Without antipsychotic medication Ms. Thompsons mental state
    fluctuated and when she consistently failed to take medication, it
    substantially deteriorated. By contrast, with antipsychotic medication, Ms.
    Thompson had appropriate and organized thought content, she did not express
    hallucinations or delusions, and she was engaged with her CTO Team.

[41]

The application judge also found that since being placed on a CTO,
    Ms. Ness had not been hospitalized, she was volunteering in the community, she
    had a job, and she was involved in the arts. He pointed out, at para. 104, that
    the Consent and Capacity Board found it was likely that the CTO and medication
    were providing some benefit to her which allowed her to have a home and a job
    and to engage in activities which supported her wellness.

[42]

Contrary to the submission made by the intervener Canadian Civil
    Liberties Association (CCLA), the application judges finding that CTOs may
    not work for all individuals does not establish overbreadth. Overbreadth
    requires that some subset of liberty infringements authorized by the impugned
    law be unconnected to the laws purpose. The mere fact that the law fails to
    fully
achieve
its purpose (here, improved
    treatment) in some instances does not establish that, in those instances, the
    liberty infringement was
unconnected
to the
    laws purpose. In my view, the application judge had a proper foundation upon
    which he could conclude that even if antipsychotic or neuroleptic medication
    and forced treatment does not always work, the strict criteria of this
    legislation ensures to the extent possible that it will only be applied when,
    in the opinion of a physician, its effect will be beneficial in terms of health
    and public safety.

(d)

Gross disproportionality

[43]

In
Canada (Attorney General) v. PHS Community Services
    Society
, 2011 SCC 44, [2011] 3 S.C.R. 134 at para. 133,
    the Supreme Court of Canada stated: Gross disproportionality describes state
    actions or legislative responses to a problem that are so extreme as to be
    disproportionate to any legitimate government interest.  In
Bedford
, at para. 120, the Court pointed out that [t]he rule against gross
    disproportionality only applies in extreme cases where the seriousness of the
    deprivation is totally out of sync with the objective of the measure.

[44]

The application judge recognized, at paras. 97 and 105, that like any
    therapeutic intervention, CTOs may not work for all individuals. He found,
    however, that research demonstrated that persons placed on CTOs are
    significantly less likely to be the victims or perpetrators of violence, or to
    be arrested or to become homeless. They also experience better follow-up with
    clinical services and significantly increased contact with mental health
    services after the CTO expires. He found, at paras. 97 and 105, that while some
    patients can be treated in the community voluntarily without a CTO after
    discharge from hospital, many do not appreciate that they have a mental illness
    and refuse to take treatment or to follow-up with mental health services. CTOs
    ensure that people who do not recognize the need for treatment stay connected
    with mental health services.

[45]

While the application judge did comment on the considerable
    disagreement in the mental health professional community and the relevant
    scientific literature about the habitual use of antipsychotic/neuroleptic
    medications, he concluded, at para. 102, based on the evidence, that for many
    people, antipsychotic drugs: (i) reduce the intensity of symptoms (allowing
    other treatment interventions to be effective); (ii) shorten the exacerbations
    of illness allowing people to reach and sustain psychosocial milestones; (iii)
    reduce the risk of relapse; and (iv) reduce the risk of suicide. He concluded,
    at para. 102, that the evidence in the record shows that antipsychotic drugs
    have made it possible to successfully treat large numbers of patients with
    schizophrenia and other psychotic illnesses, which permits discharge from
    institutional care. Given the individually tailored nature of the legislative
    regime and the significance of the public health objectives, it cannot be said
    that the legislative response to the public health problem is extreme, let
    alone so extreme as to be grossly disproportionate.

(e)

Principles of Fundamental Justice: Conclusion

[46]

The application judges factual findings correspond with what I
    would describe as the most striking feature of the Box B criteria and the CTO
    scheme, namely, that these provisions can only be invoked following a highly
    individualized assessment and consideration of the patients specific condition
    and treatment needs. That assessment is directly and intimately connected with
    the public health and public safety goals of the legislation. The legislation
    specifically targets individuals whose condition is such that they will, in the
    opinion of a physician, benefit from the application of the law to their
    situation in order to avoid serious mental deterioration. The patient must be
    someone who has suffered from mental illness in the past, who has responded to
    treatment, who now suffers from the same mental illness and is to be given the
    same treatment. In the case of a CTO, the individual must also satisfy the
    revolving door criteria of previous hospital admissions and must consent to
    the order personally or through a SDM. These criteria and the expert
    individualized assessment they require focus on factors that minimize if not
    eliminate any risk of arbitrary, overly broad or grossly disproportionate
    application of this law.

[47]

The application judges observations regarding the uncertain state
    of knowledge regarding neuroleptic medication and forced treatment must be read
    in the light of his arbitrariness, overbreadth and gross disproportionality
    analysis. He correctly focused his consideration of the conflicting expert
    evidence on those issues. They were the issues he had to decide to resolve the
    case. There was, he found, a proper foundation in the evidence from which the
    legislature could act to deal with a perceived problem of public health
    provided it did not violate the relevant constitutional controls of
    arbitrariness, overbreadth and gross disproportionality. And, as explained in
Bedford
, at para. 90, it is when considering the principles of fundamental
    justice that the question of deference arises. The applicant bears the onus
    of establishing the limitation of a
Charter
right. The application judge found that the contradictory evidence in the
    record was insufficient to support a finding of arbitrariness, overbreadth or
    gross disproportionality. His comment that the appellants had made out a compelling
    case for a ministerial review of the impugned legislation merely expressed the
    limitations of his judicial function in the absence of sufficient evidence of a
Charter
breach.

[48]

The application judge quite properly refused to accept the
    appellants invitation to engage in a general inquiry into the wisdom of this
    legislation. There is a reasonable foundation in the evidence for the
    legislature to act to deal with an important issue of public health and safety
    and for the application judge to conclude that the legislature did not overstep
    the limits on personal liberty mandated by the
Charter
.

[49]

Accordingly, I would reject the submission that the trial judge
    erred by failing to make the factual findings necessary to decide the issues
    raised in this case or that he misapplied the principles of fundamental
    justice.

(2)

Did the application judge err in his s. 7
    analysis by:

(a)

Failing to properly consider the purpose of the
    legislation;

(b)

Improperly importing s. 1 considerations into
    the s. 7 analysis;

(a)

Purpose of the legislation

[50]

The appellants submit that the public safety purpose of
Brians
    Law
is fatal to its constitutional validity as there is
    no meaningful correlation between mental illness and violence. As I have noted,
    the application judge rejected this argument having found that the purpose of
    the Box B criteria and the CTO regime go well beyond public safety and
    explicitly concern themselves with treatment issues and aim to provide a
    community-based treatment plan for revolving door patients that fall within
    the prescribed criteria.

[51]

I agree with the Attorney General that to the extent the legislation
    does have a public safety purpose, that purpose cannot be viewed in isolation.
    It must be seen as part and parcel of an integrated scheme that promotes both
    improved treatment and public safety. The legislation does not rest upon unproven
    stereotypes or assumptions about mental health and violence. Its dual purpose
    of promoting health and public safety is achieved through a carefully balanced
    scheme that requires a highly specific and individualized assessment of the
    individuals mental health history, treatment needs and the risk that
    individual poses to him or herself and the public at large.

[52]

I do not agree with the appellants submission that the application
    judges reasons run afoul of the improper purpose rule articulated in
R.
    v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, at paras.
    80-88. The application judge did not find, as the appellants suggest, that the
    impugned law had two purposes, one proper and the other improper, and conclude
    that the proper purpose of improved treatment remedied the improper purpose of
    ensuring public safety. Rather, he found that the impugned provisions rest on
    the balanced and appropriate integration of these two purposes together.

[53]

The CCLA argues that that improved treatment cannot be a valid
    legislative objective because it is coerced. Although a CTO can only be made on
    the consent of the individual or the individuals SDM, the CCLA argues that
    there is no real consent as the only alternative to a CTO is involuntary
    committal.

[54]

In my view, this argument must be rejected for three reasons. First,
    coerced treatment may be the effect of the law in certain circumstances but it
    is not its purpose which the application judge properly found to be improved
    treatment as well as public safety. When characterizing a law for the purpose
    of s. 7 analysis, the articulation of the objective should focus on the ends
    of the legislation rather than on its means [and] be at an appropriate level of
    generality:
R. v. Moriarity,
2015 SCC 55,
    [2015] 3 S.C.R. 485, at para. 26. I reject the CCLAs characterization of the
    laws purpose.

[55]

Second, there is no constitutional ban on coerced treatment for
    those who lack the capacity to make treatment decisions for themselves. It is
    well established that where treatment would benefit an individual and the
    individual is incapable of making a treatment decision because of mental
    illness, the state has an obligation to provide care and to exercise its
parens
    patriae
authority:
Fleming v. Reid
(1991), 4 O.R. (3d) 74 at p. 87.

[56]

Third, if the individual meets the criteria for involuntary
    committal, I fail to see how the legislature can be faulted for offering the
    consensual CTO as a less restrictive option. Accordingly, I reject the argument
    that consent to a CTO is effectively coerced.

(b)

Section 1

[57]

The appellants submit that the application judge erred by importing
    s. 1 considerations into his s. 7 analysis contrary to the Supreme Courts
    directions in
Bedford
and
Carter
. They argue that his arbitrariness, overbreadth and gross disproportionality
    analysis, which relied on the tailored and individualized application of the
    law by trained medical professionals, improperly required the appellants to
    disprove the efficacy of the law or disprove that any benefits might flow from
    the law.

[58]

I see no merit in this submission. The application judge was
    entirely justified in relying on the individualized nature of the regime to
    negate the claims of arbitrariness and overbreadth. Arbitrariness and
    overbreadth are, as the Supreme Court noted in
Bedford
(para. 108), directed against the absence of a connection between
    the purpose of the law and its effects on life, liberty, or security of the
    person. This requires an analysis of the
means
that the law uses to achieve its purpose:
Bedford
, para. 105. The individualized nature of the treatment is a
    relevant means that the application judge had to consider.

[59]

Unlike arbitrariness and overbreadth, gross disproportionality
    considers the relationship between the deprivation and the objective or purpose
    of the law, rather than its means. The rule against gross disproportionality
    applies in extreme cases where the seriousness of the deprivation is totally
    out of sync with the objective of the measure:
Bedford
, para. 120. The effect on the rights claimant, compared with the
    objective of the law, must be entirely outside of the norms accepted in our
    free and democratic society:
Bedford
, para.
    120. This analysis requires a judge to hold in view both the effect on the
    rights claimant and the objective of the law and, using the norms of our free
    and democratic society, evaluate whether the seriousness of the deprivation is
    out of all proportion to the laws objective.

[60]

In my view, the application judges assessment of s. 7 was entirely
    consistent with the approach mandated in
Bedford
. It did not, as the appellant submits, import s.1 considerations.
    As the application judge correctly found, the requirement for a tailored and
    individualized assessment by a trained medical professional was key to the
    arbitrariness and overbreadth analysis. When that feature of the law was
    considered, it was apparent that the appellants could not demonstrate that the
    limitations it imposed on their liberty and security of the person violated
    these principles of fundamental justice.

[61]

With respect to gross disproportionality, it could not be said that
    any deprivation of the right to liberty or security of the person was totally
    out of sync with the laws objectives. The application judge reached these
    conclusions without importing considerations that properly belong to the s. 1
    analysis.

(3)

Did the application judge err by failing to find
Brians Law
violates ss. 9, 10, 12 and 15 of the
Charter
?

[62]

The focus of the appellants attack on
Brians Law
rests on s. 7 and their arguments relating to ss. 9, 10 and 12 of
    the
Charter
largely replicate their s. 7
    arguments.

[63]

I agree with the application judge that given the highly
    individualized and structured assessment of the individual, neither involuntary
    admission nor a CTO amounts to arbitrary detention under s. 9.

[64]

I also agree with his conclusion that given the extensive rights
    notifications and procedural protections in the legislation, there is no infringement
    of the s. 10(a) right to be informed promptly of the reasons for arrest or
    detention or the s. 10(b) right to retain and instruct counsel.

[65]

I agree as well with his conclusion that as the law survives
    scrutiny under s. 7, it cannot amount to cruel and unusual treatment or
    punishment under s. 12.

[66]

Finally, I agree with the application judge that
Brians
    Law
does not violate s. 15(1) as discrimination on the
    grounds of mental disability. The individualized consideration of the
    individuals clinical history, past and current mental status and the
    likelihood of serious harm to him or herself or to others or substantial mental
    or physical deterioration is the antithesis of discrimination on the ground of
    presumed group or personal characteristics.

[67]

I do not accept ARCHs submission that that the law is
    discriminatory because it rests upon invalid stereotypical assumptions about
    the lack of capacity of mental health patients to make treatment decisions for
    themselves. Both the
Mental Health Act
and the
Heath Care Consent Act, 1996
, S.O. 1996, Ch. 2
    Sched. A, give priority to the patients views and require an individualized
    assessment of the patients capacity to make treatment decisions before the
    patients views can be overridden. Nor do I accept ARCHs contention that
    individualized assessment cannot be relied upon because clinical decision
    making may itself be infected by discrimination. That submission would require
    a firm factual foundation and the court below made no such findings.

Disposition

[68]

Accordingly, I would dismiss the appeal. The Attorney General does
    not seek costs of the appeal.

[69]

The application judge awarded costs of $100,000 to the appellants at
    first instance despite their lack of success because the appellants are public
    interest litigants, the issues are important and advance funding would have
    been granted: 2013 ONSC 6357. In my view, the situation is different on appeal.
    The applicants had a full hearing before the application judge who gave
    thorough reasons with which I substantially agree. I am not persuaded that
    there is any basis to award further costs to the appellants at this stage.

Released: September 13, 2016

Robert J. Sharpe
    J.A.

I agree P. Lauwers
    J.A.

I agree B.W. Miller
    J.A.


