



COURT OF APPEAL
    FOR ONTARIO

CITATION: Nelson v. Livermore, 2017 ONCA 712

DATE: 20170913

DOCKET: C61876

Doherty, Benotto and Trotter JJ.A.

In the matter of an
    appeal from a decision of the Consent and Capacity Board, pursuant to the
Mental
    Health Act
, R.S.O. 1990 c. M7, as amended

And in the matter of
    Rodney Nelson, a patient at Waypoint Centre for Mental Health Care - Oakridge
    Site, Penetanguishene, Ontario

BETWEEN

Rodney Nelson

Appellant (Appellant)

and

Dr. Craig Livermore

Respondent (Respondent)

and

Attorney General of Ontario

Intervener (Respondent)

Suzan E. Fraser, for the appellant

Janice Blackburn and Julia Lefebvre, for the respondent Dr.
    Craig Livermore

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

Heard: April 25, 2017

On appeal from the order of Justice Susan E. Healey of
    the Superior Court of Justice, dated February 22, 2016, with reasons reported
    at 2016 ONSC 1262
, dismissing an appeal from a decision of the
    Consent and Capacity Board, dated March 15, 2013.

Trotter J.A.:

A.

introduction

[1]

This appeal
    involves the application of the involuntary admission provisions of the
Mental
    Health Act
, R.S.O. 1990, c. M.7 (MHA) to an incarcerated offender.

[2]

In 2005, as the
    appellant completed a penitentiary sentence, a psychiatrist formed reasonable grounds
    to believe that the appellant suffered from certain mental disorders (i.e. paraphilia,
    severe personality disorder, psychotic symptoms) that would likely result in
    serious bodily harm to another person. The appellant was sent to a psychiatric hospital,
    where two different psychiatrists assessed him and formed the same opinion
    about the presence of mental disorders and the risk of harm to others. Despite
    numerous reviews by the Consent and Capacity Board (the Board), the appellant
    remains detained in a psychiatric hospital.

[3]

The Board last
    reviewed the appellants status as an involuntary patient at a hearing on March
    14, 2013. The appellants appeal from that decision was dismissed. He now appeals
    to this court.

[4]

The appellant
    argues that the Boards decision was unreasonable and that the appeal judge
    erred in not setting it aside. The appellant contends that he does not have a mental
    disorder and that the MHA is being used to effectively extend his prison
    sentence indefinitely, in breach of ss. 7, 9, 11(h), and 12 of the
Canadian
    Charter of Rights and Freedoms.
He seeks an order for his immediate
    release under s. 24(1).

[5]

I would dismiss
    the appeal. In short, the appellant has failed to demonstrate that his
    detention under the MHA in 2005 was motivated by any invidious purpose. In the
    ensuing years, the Board has confirmed that he has an untreated mental disorder
    that requires his detention. The appellant has done virtually nothing to
    address these issues, leading to the Boards last decision, confirming his
    detention once again.

[6]

I agree with the
    appeal judge that the Boards decision to confirm the appellants involuntary
    status was reasonable and free from legal error. I also agree with her
    conclusion that, because the appellant has failed to demonstrate that his
    detention (both initial and continued) runs afoul of the MHA, his
Charter
claims must fail.

[7]

Before
    considering these issues in more detail, it is necessary to examine the
    appellants criminal and psychiatric history, along with the somewhat
    complicated procedural history of this case.

B.

the facts

[8]

The appellant is
    57 years old. He is dangerous. This is clear from his lengthy criminal history.
    He has committed many violent offences, including sexual offences against women
    and children. His dangerousness has been confirmed by numerous psychiatric
    assessments over the years. Since 1990, he has spent most of his time detained,
    either as a sentenced criminal, or as an involuntary patient in a psychiatric
    facility.

(1)

First Detention in a Psychiatric
    Facility

[9]

In 1999, the
    appellant was serving an aggregate 14-year prison sentence for armed robbery, sexual
    assaults, and gross indecency. He served his sentence at Kingston Penitentiary.

[10]

As the
    appellants sentence came to an end, an application for psychiatric assessment
    (Form 1) was issued under the MHA. On September 3, 1999, the appellant was
    transferred to the Penetanguishene Mental Health Centre (Oak Ridge Division),
    now called Waypoint Centre for Mental Health (Waypoint). He was assessed at
    that hospital and admitted as an involuntary patient (Form 3).

(2)

New Criminal Proceedings

[11]

On March 17,
    2000, the appellant was discharged from Waypoint directly into police custody.
    He was charged with sexual assault, assault, choking, forcible confinement, and
    extortion, all against his former female partner. The charges dated back to
    1990. After a jury trial, the appellant was convicted of common assault only,
    contrary to s. 266 of the
Criminal Code
, R.S.C. 1985, c. C-46.

[12]

The Crown did not
    initiate dangerous offender proceedings under Part XXIV of the
Criminal
    Code
. Indeed, it would have been unable to do so. The dangerous offender
    provisions are triggered by the commission of a serious personal injury
    offence that carries a maximum sentence of at least 10 years imprisonment: see
    s. 752. The maximum sentence for assault is five years imprisonment: see s.
    266(a).

[13]

The trial judge
    sentenced the appellant to five years imprisonment (less pre-sentence custody):
    see
R. v. Nelson
(12 June 2001), Sault Ste. Marie, 5963/A0 (Ont. S.C.).
    In his reasons, at p. 140, the trial judge emphasized the severity of the
    appellants offence:

In terms of common assault or assault simpliciter, this is the
    worst case of common assault that I have heard or I am aware of.

Regarding the worst offender, we look at the background of Mr.
    Nelson. He has a criminal record of 31 convictions between 1976 and 1991. Nine
    of the convictions are for crimes of violence, including armed robbery, assault
    and sexual assaults.

The trial
    judge referred to the appellants psychiatric assessments and concluded that he
    was at a very high risk to reoffend involving crimes of violence (at p. 140).

[14]

The Crown appealed
    the appellants acquittals; the appellant appealed his sentence. Both appeals
    were dismissed: see
R. v. Nelson
, [2003] O.J. No. 163 (C.A.). In
    dismissing the sentence appeal, this court affirmed, at paras. 1-2, that the
    facts of the appellants case brought it into the category of the most serious
    simple assault and that the appellant qualified as the worst offender.

(3)

Second Detention in a Psychiatric
    Facility

[15]

The circumstances
    giving rise to this appeal occurred as the appellants five-year sentence ended.
    On March 4, 2005, Dr. James Hillen, a psychiatrist at the Regional Treatment
    Centre of Kingston Penitentiary, completed an application for psychiatric
    assessment (Form 1). The appellant was transferred to Waypoint on March 10,
    2005. This Form 1 is at the core of the appellants grounds of appeal. He argues
    that it was used to maintain his custody, and for no legitimate mental health
    purpose.

[16]

To a certain
    extent, Dr. Hillens reasons for completing the Form 1 can be evinced from an Institutional
    Consult Letter (Consult Letter) he wrote at the time. The document is dated
    February 24, 2005; however, in it, Dr. Hillen describes events up to March 4,
    2005.

[17]

The Consult
    Letter indicates that attempts were made to assess the appellant in 2001 and
    2003. However, it states that on both occasions the appellant refused to participate
    in psychological assessments. The document does not indicate who attempted to
    assess the appellant, and for what purpose.

[18]

In February of
    2005, Dr. Hillen reviewed 18 years of the appellants psychiatric and
    psychological records, as well as other records from the Parole Board of Canada
    and Corrections Canada. Dr. Hillen attempted to meet with the appellant on
    February 24, 2005, but the appellant refused.

[19]

Dr. Hillen then interviewed
    the appellants female parole officer. She reported that the appellant had recently
    asked her if he could get a condom so they could have sex in her office, and
    told her that he thought a condom machine had been placed on the unit for this
    purpose. The officer considered the incident to be fear-provoking and
    suggestive of delusions (i.e. ideas of reference and erotomanic delusions).

[20]

Dr. Hillen and a
    nurse attempted to meet with appellant on March 4, 2005. The appellant refused
    to be examined, but engaged in some conversation. He denied making sexual
    statements to his parole officer and denied having any form of mental
    disturbance. He said that all previous investigations into his sexual
    well-being were normal.

[21]

Dr. Hillen summarized
    his conclusions in the Consult Letter as follows:

In my opinion, the patient meets the criteria for completing an
    Application for Psychiatric Assessment under the Mental Health Act of Ontario
    under:

·

persistent and untreated mental disorder, Paraphilia, complicated
    by intermittent (possibly continuous but covert) psychotic symptoms, untreated
    severe Personality Disorder, and persistent attraction to the use of
    intoxicants;

·

persistent risk to the safety of others.

[22]

The appellant arrived at Waypoint on
    March 10, 2005. The next day, Dr. Russell Fleming assessed the appellant and executed
    a certificate of involuntary admission (Form 3). Dr. Lisa Ramshaw executed certificates
    of renewal (Form 4s) on March 24, 2005 and April 22, 2005. The Board confirmed
    the latter Form 4 shortly thereafter.

[23]

The Board has reviewed the appellants
    involuntary status many times. Each time it has found that he meets the criteria
    for involuntary commitment.

(4)

The
Habeas

Corpus
Application

[24]

In 2012, prior to
    the Boards decision that is the subject of this appeal, the appellant
    challenged his detention (and the Form 1 executed by Dr. Hillen) by way of
habeas
    corpus
. Representing himself, the appellant argued that his detention
    amounted to double jeopardy and infringed ss. 7 and 12 of the
Charter
.
    The application was dismissed: see
Nelson v. Her Majesty the Queen
,
    2012 ONSC 1021, 252 C.R.R. (2d) 253. No appeal was taken from this decision.

C.

the board HEARING AND decision

[25]

At his most
    recent Board hearing, the appellant was represented by counsel (not Ms. Fraser);
    Dr. Livermore, the appellants attending physician, was not.

[26]

The hearing was
    straightforward. The focus was on whether the appellant continued to meet the
    statutory criteria for involuntary commitment under s. 20(5) of the MHA. The
    appellant did not challenge the validity of the Form 1 completed by Dr. Hillen.
    The appellants counsel advised the Board that he wished to create a record in
    support of
Charter
claims to be pursued by the appellant  not before
    the Board, but at some later date, on appeal. The appellants counsel told the
    Board that he didnt want to get into the case law as to the Boards
    jurisdiction with respect to that. That issue has since been settled. In
E.S.
    v. Joannou
, 2017 ONCA 655, this court held that the Board is not a court
    of competent jurisdiction for the purposes of s. 24(1) of the
Charter
.

[27]

Dr. Livermore
    testified before the Board. He explained that he had been the appellants
    attending psychiatrist since August of 2012, long after the completion of the
    Form 1. He relied upon documentation compiled by others, which was before the
    Board. Dr. Livermore also prepared a Consent and Capacity Board Summary dated
    March 13, 2013 (Summary).

[28]

Dr. Livermore was
    of the view that the appellant continues to suffer from mental disorders. He
    listed them in his Summary as follows:

Paraphilia - Sexual sadism and Pedophilia with sexual deviance
    demonstrated with phallometric testing. History of sexual offenses with a broad
    victim pool (children, adult males and females) and violent sexual fantasies.

Antisocial Personality Disorder with psychopathy - impulsive,
    egocentric, manipulative, lack of remorse for victims of prior offences,
    significant legal history and history of conduct disordered behaviour in
    childhood and adolescence, PCL-R score of 37/40.

[29]

Dr. Livermore referenced the
    appellants history of offending, particularly his sexual offending towards
    children. He was troubled by the appellants lack of insight into his
    paraphilias and the wrongfulness of his actions. Dr. Livermore detailed certain
    behavioural problems exhibited by the appellant while hospitalized, including inappropriate
    behaviour towards female staff as recently as the year preceding the hearing
    before the Board. Dr. Livermore described the appellants steadfast refusal to cooperate
    with treatment options recommended for him with a view to reducing his risk and
    paving the way towards fewer restrictions on his liberty, including his
    possible release into the community under supervision. In particular, Dr.
    Livermore was of the opinion that the appellants failure to agree to take sex-drive
    reducing medication (Lupron) was highly problematic. The appellant had taken
    this medication for a short period of time in the past, but then refused to
    continue with it. Dr. Livermore concluded that, because of his untreated mental
    disorders, the appellant poses a high risk to others if released into the
    community.

[30]

The appellant did not testify before
    the Board. He did not adduce evidence to contradict anything written or said by
    Dr. Livermore. He simply relied upon two letters from the Mennonite Central
    Committee Ontario and a brochure regarding its Circle of Support and
    Accountability, a
Federal Corrections sponsored re-integration program. The letters offered
    to assist the appellant through the Circle of Support if he were deemed
    suitable for release.


[31]

The Board
    rendered a decision on March 15, 2013. In thorough reasons for that decision,
    released March 18, 2013, the Board accepted Dr. Livermores opinion and
    unanimously confirmed the appellants involuntary status: see
R.N. (Re)
,
    2013 CanLII 33987 (Ont. CCB).

[32]

The Board determined
    that the appellant suffers from a mental disorder within the meaning of s. 1
    of the MHA. The Board also determined that the appellants mental disorder is
    of a nature and quality that would likely result in serious bodily harm to
    others unless he remained hospitalized. The Board reviewed the appellants past
    criminal behaviour and how his conditions prevent him from understanding the
    wrongfulness of his actions and its impact on others. The Board relied on the
    following example, at p. 9:

He was convicted of assaulting his then girlfriends young
    daughter, on at least ten (10) occasions and left her with venereal warts in
    her vagina and has admitted to assaulting other young girls. He could not
    understand why his girlfriend would not have him back after that event and was
    of the opinion, at least in 2010, that sex between men and children was not
    unusual.

[33]

The Board also
    pointed to the appellants behaviour while hospitalized, which was sometimes threatening
    or menacing towards females. The Board observed, at p. 10:

He is narcissistic and distorts reality. [H]e is unable to
    appreciate his past acts were wrong or his fault. He sees himself as a victim
    of the justice system and does not and cannot take any ownership for any of his
    past or current actions, behaviours or statements. He is unable to see that
    others see them differently. He further has no insight as to their [e]ffect on
    others. His narcissistic traits lead to a distortion of reality and inability
    to feel emotion or empathy for his victims.

[34]

The Board also
    considered the voluminous material available to it concerning the appellants
    dangerousness. At pp. 9-10 of its reasons, the Board stated:

RN has a score of 37 out of a possible 40 on
    the Psychopathy Checklist Revised (PCL-R). This tool predicts recidivism, poor
    community treatment and poor response to treatment. Phallometric testing
    indicates sexual deviance with a preference for nonsexual violence over
    consenting adult heterosexual activity, a sexual preference for violent sexual
    activities against male and female children and coercive sexual activities
    against male children over consenting adult homosexual activities. At
    Brockville, further actuarial testing by way of the Static 2002R, which is
    designed to predict sexual and violent recidivism, place RN in the
    Moderate-High category. This tool suggested RNs rate of recidivism is 2.5
    times higher than the average sexual offender.

[35]

The Board found
    that, if released into the community untreated and unsupervised, the appellants
    risk of harming others (particularly young and vulnerable females) is serious
    and is likely to happen within a short period of time (at p. 10).

D.

initial Appeal Proceedings

[36]

The appellant appealed
    the Boards decision under s. 48(1) of the MHA and s. 80 of the
Health Care
    Consent Act, 1996
, S.O. 1996, c. 2, Sched. A, which concurrently provide
    for an appeal to the Superior Court of Justice on a question of law or fact or
    both.

[37]

The first appeal
    was argued on December 4 and 5, 2014. Judgment was reserved. On December 23,
    2014, this court released its decision in
P.S. v. Ontario
, 2014 ONCA
    900, 123 O.R. (3d) 651, holding that the MHA violated s. 7 of the
Charter
because
    it did not provide the Board with adequate powers to address the needs of
    long-term detainees. The first appeal judge concluded that
P.S.
rendered
    the appeal moot: see
Nelson v. Livermore
, 2014 ONSC 7477.

[38]

The appellant
    appealed to this court under s. 134 of the
Courts of Justice Act
,
    R.S.O. 1990, c. C.43. This court held that it was an error to dismiss the appeal
    for mootness. The case was remitted to the Superior Court to be heard by
    another judge: see
Nelson v. Livermore
, 2015 ONCA 688.

[39]

After this
    courts decision in
P.S.
, the Legislature responded to the
    constitutional shortcomings of the MHA as identified in the decision. On
    December 21, 2015, the
Mental Health Statute Law Amendment Act, 2015
, S.O. 2015, c. 36, was
    proclaimed into force, amending the MHA by giving the Board greater powers to
    address the needs of long-term detainees. Previously, the Board could only
    confirm or rescind a patients involuntary status. Now, under s. 41.1(2) of the
    MHA, the Board may direct transfers, reduce security levels, adjust privileges,
    and permit escorted and unescorted passes into the community, among other
    things. The appellant is entitled to a hearing under this regime. He has
    refused to participate in the Board process pending the final outcome of his
    appeal.


E.

second appeal proceedings

[40]

At the second
    appeal hearing in the Superior Court, the appellant challenged the Boards
    decision and raised numerous
Charter
arguments in support of his
    position that he should be released. The appeal judge dismissed the appeal from
    the Boards decision and rejected the appellants
Charter
claims. At
    this stage, I will simply outline the appeal judges conclusions. A more
    detailed analysis follows.

[41]

The appeal judge
    reached the following conclusions:

(a)     The Board made no error of law
    in confirming the   appellants involuntary status. The Boards  decision was
    reasonable;

(b)     The appellant was not permitted
    to challenge the           conclusions that formed the basis of the Form 1     because
    Dr. Hillen was not a party to the          proceedings. Nevertheless, on the
    limited record   available, Dr. Hillen met the minimal    standard           under
    s. 15 of the MHA and the initial  detention did not violate s. 7 of the
Charter
;

(c)     The execution of a Form 1 at
    the end of a     sentence (psychiatric gating) does not necessarily      constitute
    an unlawful or arbitrary detention. The   record did not support the
    appellants assertion     that the MHA was used for an improper purpose;    and

(d)     The appellant failed to
    establish that his
Charter
rights under ss. 7, 9, 11(h) or 12 had
    been    infringed by the process resulting in his initial        detention, nor
    by his continued detention.

[42]

The appellant appealed
    to this court under s. 6(1)(b) of the
Courts of Justice Act
.

F.

issues on appeal

(1)

Introduction

[43]

The appellant
    challenges the appeal judges decision to uphold the Boards confirmation of
    his involuntary status. He attacks the Form 1 that resulted in his initial
    detention. He invokes the
Charter
to attack his continued detention
    under the MHA.

[44]

While the
    appellants approach is multi-faceted, his arguments coalesce in a single grievance
     he is the victim of psychiatric gating (i.e. the use of the MHA to civilly
    detain an individual at the end of his or her prison sentence). This is at the
    heart of his challenge to the Boards decision and it drives each of his
Charter
arguments.

[45]

All of the
    appellants arguments must fail for the same reason  he has failed to
    establish that his detention runs afoul of the statutory criteria for
    involuntary commitment, or that the MHA has been used against him for any
    improper purpose.

[46]

Time and again,
    the Board has confirmed the appellants status as an involuntary patient. The
    appellant has done nothing, or next to nothing, to address the chorus of
    decisions that conclude that, untreated and unwilling to address his underlying
    mental disorders, he presents a serious risk to others.

[47]

I commence with how
    the appeal judge addressed the Boards decision. I then consider how she
    handled the appellants attack on the original Form 1. I will then turn to the
    appellants
Charter
arguments.

(2)

The Boards Decision

(a)

The Role of the Board and the Standard of Review

[48]

The Boards
    decision must be located within the framework of the MHA. In
P.S.
, at
    paras. 12-18, Sharpe J.A. sets out the applicable statutory framework, which I need
    not repeat as comprehensively here.
The appeal judge also provided a detailed account of
    the procedure under the MHA, at paras. 20- 36.

[49]

Briefly, a Form 1
    (under s. 15 of the MHA) permits a physician who examines a person, to make an
    application for a psychiatric assessment where they have reasonable grounds to
    believe that the person: has threatened or attempted self-harm, behaved
    violently towards another causing the person to fear bodily harm, or has shown
    a lack of competence for self-care; and, is suffering from a mental disorder
    that will likely result in serious bodily harm to the patient or another. The
    Form 1 authorizes the detention, restraint and examination of the person at a
    psychiatric facility for a maximum of 72 hours.

[50]

Following the
    Form 1 assessment, an attending psychiatrist can admit the person involuntarily
    (under a Form 3) if he or she is satisfied that the criteria for civil
    committal are present and the person is not suitable for admission as a
    voluntary patient (ss. 20(1), (5)). A patients involuntary status may be
    continued for longer periods if a physician issues a certificate of renewal (a Form
    4) (s. 20(4)). Again, this decision is based on the physicians clinical
    opinion regarding the continued presence of the criteria for involuntary
    commitment.

[51]

Under s. 39(1), an
    involuntary patient (or someone on the patients behalf) can apply to the Board
    to inquire into whether the prerequisites for admission or continuation as an
    involuntary patient are met. Mandatory reviews are also required at certain
    intervals (s. 39(4)). While the statutory framework is somewhat labyrinthine,
    the role of the Board on these reviews is clear  it must determine whether the
    involuntary patient suffers from a mental disorder of such a nature or quality
    that it is likely that he or she will cause serious harm to himself, herself or
    another person. If the criteria for involuntary commitment are met, the Board may
    confirm the certificate; if not, the Board must rescind it (s. 41). As
    mentioned above, the newly enacted s. 41.1 provides the Board with broader powers
    to manage long-term detainees.

[52]

The Board is a specialized tribunal. When
    conducting a review of a patients continued involuntary status, panels of the
    Board are comprised of
a psychiatrist, a lawyer and a third person who is not a
    psychiatrist or a lawyer (s. 39(14)). The appropriate standard of review for Board
    decisions is described in
Starson v. Swayze
, 2003 SCC 32, [2003] 1 S.C.R. 722. The case originated from a decision
    of the Board, acting under the
Heath Care Consent Act, 1996
. Chief
    Justice McLachlin, dissenting in the result, agreed with the majority on the applicable
    standard of review. She held, at para. 5:

I agree with my colleague Major J. that the
    Boards interpretation of the law is reviewable on a standard of correctness.
    On the application of the law to the facts, I agree that the Boards decision
    is subject to review for reasonableness. The Legislature assigned to the Board
    the task of hearing the witnesses and assessing evidence. Absent demonstrated
    unreasonableness, there is no basis for judicial interference with findings of
    fact or the inferences drawn from the facts. This means that the Board's
    conclusion must be upheld provided it was among the range of conclusions that
    could reasonably have been reached on the law and evidence. As Binnie J. states
    in
R. v. Owen
, 2003 SCC 33 (S.C.C.)
    (released concurrently), at para. 33: If the Board's decision is such that it
    could reasonably be the subject of disagreement among Board members properly
    informed of the facts and instructed on the applicable law, the court should in
    general decline to intervene. The fact that the reviewing court would have
    come to a different conclusion does not suffice to set aside the Boards
    conclusion.


See also
Gajewski
    v. Wilkie
,
    2014 ONCA 897, 123 O.R. (3d) 481, at para. 33. This is the standard that the
    appeal judge identified, at paras. 12-17, and applied. She did so correctly in
    my view.

[53]

The appellant
    argues that the Board erred in finding that he has a mental disorder within the
    meaning of the MHA. He also argues that, the Board and, subsequently, the
    court acted unreasonably by disproportionately relying on historical and
    hearsay information to the exclusion of the appellants contemporaneous
    behaviour. I do not accept either of these arguments.

(b)

A Mental Disorder

[54]

The appellant
    contends that he does not have the type of mental disorder contemplated by s.
    1 of the MHA. He submits that involuntary status under the MHA must be
    predicated on a psychotic illness or a mood disorder that requires
    psychiatric care or psychiatric medications.

[55]

In oral argument,
    Ms. Fraser observed that, in criminal proceedings, the Crown has never
    suggested that the appellant suffered from a mental disorder that compromised
    his intent to commit any of his crimes. This, she suggests, should further prevent
    the Board from relying on the appellants mental disorders to support his detention
    as an involuntary patient.

[56]

I would reject
    these arguments. As the appeal judge noted, s. 1 of the MHA defines mental
    disorder in broad terms, as any disease or disability of the mind. The
    appeal judge also referenced s. 2 of the
Criminal Code
, which defines
    a mental disorder as a disease of the mind. To this extent, there is some
    correspondence between the MHA and the
Criminal Code
.

[57]

In the criminal
    context, courts have interpreted the term disease of the mind broadly. The classic
    formulation is from
Cooper v. The Queen
, [1980] 1 S.C.R. 1149, in
    which Dickson J. (as he then was) stated, at p. 1159:

In summary, one might say that in a legal
    sense disease of the mind embraces
any illness,
    disorder or abnormal condition which impairs the human mind and its functioning
, excluding however, self-induced states caused by alcohol or drugs,
    as well as transitory mental states such as hysteria or concussion. [Emphasis
    added.]

This
    broad definition has stood the test of time. Under this umbrella, psychopathy is
    a disease of the mind: see
R. v. Simpson
(1977), 16 O.R. (2d) 129 (C.A.),
    at pp. 141-142, referred to with approval in
Cooper
, at pp. 1158-1159.

[58]

The comparison with
    the criminal law is helpful at the definitional level, but its usefulness ends
    there. The criminal law is generally concerned with mental disorders that are incapacitating,
    in the sense of compromising criminal responsibility, or rendering a person
    unfit to stand trial: see
Criminal Code
, ss. 2, 16, 672.22-672.33).
    Most often these cases involve disorders that produce psychotic symptoms. Conversely,
    the MHA is not concerned with blame or censuring an individual for past
    actions; it is concerned with promoting health and protecting patients and the
    public at large. Accordingly, disorders that produce the effects relevant to
    criminal responsibility and fitness are not necessarily required in the civil
    commitment context.
The
    appeal judge recognized this distinction, at para. 74:

There is no basis in law, as argued by the appellant, to equate
    the definition of mental disorder under the MHA to the criminal law analysis of
    mental disorder, which relates to offence-specific issues such as fitness to
    stand trial and criminal responsibility.

[59]

I agree with this
    conclusion. There is no reason why mental disorders that do not produce
    psychotic symptoms are beyond the ambit of the MHA. I note the following cases
    in which the appellant patients detained under the MHA were diagnosed with
    pedophilia-paraphilia:
P.S.
;
Starnaman v. Penetanguishene Mental
    Health Centre
(1995), 24 O.R. (3d) 701 (C.A.);
Penetanguishene Mental
    Health Centre v. Stock
(1994), 116 D.L.R. (4th) 550 (Ont. Gen. Div.); and
Buccholz v. Allain
, 2015 ONSC 5851.

[60]

The appeal judge determined
    that there was ample evidence to support Dr. Livermores conclusion that the
    appellant suffered from a mental disorder. Moreover, the evidence established
    that he continues to engage in behaviours consistent with his diagnoses. As the
    appeal judge concluded, at para. 78:

I find, therefore, that it was reasonable for
    the Board to conclude that the appellant, at the time of the hearing, continued
    to suffer from these diagnoses, each of which constitutes a mental disorder
    within the meaning of the
MHA
. The diagnoses
    have repeatedly been confirmed over time, they have gone untreated, and they
    are diagnoses reached by professionals who have had an opportunity to spend
    time observing and assessing the appellant.

There
    is no error in the way the appeal judge dealt with this issue

(c)

The Overall Reasonableness of the Boards Decision

[61]

The appeal judge did not
    err in finding that
the
    Boards decision confirming the appellants involuntary status was reasonable. At
    para. 81, she stated, 
I find that the conclusion reached by the Board that the
    appellants release would likely result in serious bodily harm to another
    person was reasonable on the evidence before it. Responding to
    the appellants repeated assertions that
he has done nothing wrong in the past and will do nothing
    wrong if released, the appeal judge stated, at para. 82:

This evidence, in my view, is sufficient to
    warrant ongoing detention in the face of the appellants convictions, the
    appellants broad victim pool, the nature of his paraphilia, the nature of his
    personality disorder, and the chances of recidivism borne out by his test
    scores. As I suggested to his counsel during argument, there may in fact be
    individuals for whom long-term detention is the only answer to protection of
    the public, and the appellant may in fact prove to be one of those individuals.

[62]

In reaching this conclusion, the
    appeal judge (as did the Board) relied on far more than the appellants
    criminal history. Rather, the conclusion was supported by the following
    evidence: (a) the appellants test scores on various risk prediction instruments
    that rated him as being 2.5 times more likely to re-offend than the average sex
    offender; (b) the results of phallometric testing; (c) the appellants refusal
    to take sex-drive reducing medication again; (d) the appellants refusal to
    accept behavioural therapies that have been offered to him; (e) the appellants
    untreated personality disorder that complicates his ability to control himself;
    and (f) his personality disorder leads him to place blame on others and renders
    him unable to appreciate the impact of his behaviour.

[63]

The appeal judge found
    that the Board properly relied upon historical information, as well as information
    that was more current (i.e. the appellants attitude towards treatment proposals,
    his continued lack of insight, and his menacing behaviour towards female
    staff). Moreover the appellants complaint about over-reliance on hearsay
    evidence is misplaced. As this court recognized in
Gajewski
, at para. 40, the Board may admit
    hearsay evidence: see also
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, s. 15; and Consent
    and Capacity Board Rules of Practice, (September 1, 2017), r. 23.1. In
Starson
, Major J., writing for the majority,
    warned that the Board must be careful to avoid placing undue emphasis on
    uncorroborated evidence that lacks sufficient indicia of reliability (at para.
    115). There was no basis upon which the appeal judge could find that the Board
    erred in its use of hearsay evidence.

[64]

In conclusion, I
    agree with the appeal judge, at para. 84, that the Boards reasons, provide a
    cogent and thorough assessment of the evidence relevant to the issues that it
    was tasked to decide, and provide no basis for interference from this court.

(3)

The Validity of the
    Form 1

(a)

Background

[65]

The appellant
    submits that the Form 1 that triggered his detention is faulty and that every
    form that proceeded afterwards is invalid. The appellant contends that he should
    be released on this basis alone.

[66]

This submission was
    not made before the Board. However, the appellant made a similar submission on
    his
habeas

corpus
application: see para. 24, above. The
    Attorney General argued before the appeal judge that, based on the principle of
res judicata
and the doctrine of laches (in failing to raise this
    argument over the years), the appellant should be estopped from pursuing it in
    these proceedings.

[67]

I need not
    consider these preliminary objections in any detail. I agree with the sensible
    manner in which the appeal judge decided them. As the appeal judge stated, at
    para. 109:

In my view, the circumstances of a psychiatric
    patient who was not represented by counsel on a previous application before the
    Superior Court of Justice would amount to the type of special circumstances
    necessary to justify the consideration of issues that could have been raised in
    an earlier application. With this most vulnerable population, the same standard
    of reasonable diligence as would apply to other litigants should be
    significantly relaxed, and the policy reasons surrounding finality in
    litigation should give way to the policy reasons that offer psychiatric
    detainees broad access to procedural fairness.

[68]

The appeal judge
    also observed that the judge hearing the
habeas corpus
application
    misapprehended the holding of this court in
Starnaman
. I will return
    to the
Starnaman
decision below when discussing psychiatric gating and
    the
Charter
. For present purposes, this error justifies the trial
    judges decision not to apply the principles of
res judicata
to the
    appellants detriment.

[69]

Although the
    appellant should not be barred from attacking the Form 1 by
res judicata
or the doctrine of laches, his position is fraught with difficulty for other
    reasons.

[70]

First, Dr. Hillen
    is not a party to these proceedings. Similarly, even though the Form 1 was
    completed while the appellant was at Kingston Penitentiary, the Attorney General
    of Canada is not a party to the proceedings.

[71]

On a more practical
    level, the materials in the record that bear on this issue are limited. The
    voluminous documentation relied upon by Dr. Hillen in completing the Form 1 was
    not before the Board or the appeal judge. The appeal judge determined, at para.
    98, that, [t]he correctness of Dr. Hillens conclusion cannot be evaluated in
    the absence of this evidence. I agree with this assessment. The Consultation
    Letter leaves lingering questions on numerous issues, including the
    circumstances of the attempted assessments of the appellant in 2001 and 2003.

[72]

On occasion, the
    Board has rescinded a Form 1 when conducting a review of a Form 4. However,
    these cases generally involve fundamental defects on the face of the Form 1, brought
    to the Boards attention at an early review; not substantive challenges years
    down the road: see, for example,
S.K. (Re)
, 2016 CanLII 38899 (Ont. CCB) (Form
    1 rescinded on the basis that it was not signed by a physician when the patient
    arrived at the psychiatric facility; the Form 1s rescission invalidated the
    Form 3 and two Form 4s that followed).

[73]

The Board is not
    specifically empowered to investigate or review the validity of a Form 1. The
    MHA specifically limits the Boards authority under s. 39 to reviews of persons
    under certificates of involuntary admission (Form 3s), or certificates of
    renewal/continuation (Form 4s/Form 4As). Moreover, reviewing the prerequisites of
    a Form 1 is not an explicit part of the Boards mandate when conducting reviews
    pursuant to s. 39. This is not surprising in light of the purposes of the civil
    commitment review process. As Rouleau J.A. said at para. 94 of his reasons in
E.S.
:

The Boards function is primarily
    forward-looking and non-adversarial.
Nothing in
    the relevant statutes suggests that the Board is to review and assess prior
    misconduct
. For example, s. 41(1) of the
Mental
    Health Act
provides that upon an application the
    Board is to determine whether or not the conditions for involuntary status
    continue to be met at the time of the hearing.
The
    issue is not, therefore, whether the original determination was correctly made
    but rather whether the patient still meets the conditions. The process is more
    inquisitorial than fault- or blame-based.
[Emphasis
    added.]

These
    observations are apt in relation to this ground of appeal.

[74]

Despite the
    shortcomings of the record, the appeal judge engaged in a limited review of the
    Form 1. She refused to determine whether it was completed for an invidious
    purpose. She examined the record to ensure that there was strict compliance
    with s. 15 of the MHA, and to ensure that the appellants rights under s. 7 of
    the
Charter
where not violated. The appeal judge concluded that the
    Form 1 was compliant. Assuming that the appeal judge was even required to
    undertake this task, I agree with her conclusions.

(b)

A Proper Examination

[75]

The appellant
    argues that the Form 1 was defective because Dr. Hillen did not examine the
    appellant. This argument is rooted in the language of s. 15(1) of the MHA,
    which provides:

15
(1) Where a
    physician
examines
a
    person and has reasonable cause to believe that the person,

(a) has threatened or attempted or is
    threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently
    towards another person or has caused or is causing another person to fear
    bodily harm from him or her; or

(c) has shown or is showing a lack of
    competence to care for himself or herself,

and if in addition the physician is of the
    opinion that the person is apparently suffering from mental disorder of a
    nature or quality that likely will result in,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

the physician may make application in the prescribed
    form for a psychiatric assessment of the person. [Emphasis added.]

[76]

The word examines is not
    defined in MHA. The appellant argues that, given the significant deprivation of
    liberty that flows from civil commitment, involuntary patients are entitled to
    an interactive examination with direct contact between the doctor and the
    patient, and not a decision based on historical records.

[77]

The appellant relies on
Dr. X v. Everson
, 2013 ONSC 6134, 4
    C.C.L.T. (4th) 205, a decision involving a tort action for false imprisonment,
    based on an improper use of the civil commitment process. Addressing the nature
    of an examination required by the MHA, Reid J. stated, at paras. 94-97:

It is not surprising that there are safeguards
    built into the
Act
to prevent misuse
    of the power of apprehension and detention.

One of the safeguards is the requirement
    for there to be a personal examination. This means that a doctor cannot proceed
    with an application based only on third-party evidence. There needs to be
    direct contact between the doctor and the patient in order for the doctor to
    come to a proper conclusion or, using the words of Form 1, to make a careful
    inquiry into all the facts necessary to form an opinion about the nature and
    quality of the persons mental disorder.

Dealing with the requirement for an
    examination under the B.C.
Mental Health Act
, Kirkpatrick J.A. of the British Columbia Court of Appeal
    in
Mullins v. Levy
[2009 BCCA 6, 88
    B.C.L.R. (4th) 306]

stated
    as follows [at para. 106]:

Having regard to the views of the
    physicians, the purpose of the
Act
, and
    the interpretation of the word in its ordinary usage in the medical context, in
    my opinion the term examination must be given a broad interpretation so as to
    be applicable in the myriad of circumstances that confront physicians called
    upon to make the serious decision to involuntarily commit persons to a
    psychiatric facility. Examination, in this context, must mean observing the
    person, reviewing the patients chart (if there is one), reviewing the available
    history and the collateral information, and where possible (in the sense that
    the person complies) and necessary (in the sense that the information to be
    gained is not available from other sources) conducting a personal interview
    with the person to be admitted.

I agree that it is not appropriate to define
    the nature of an examination too restrictively. It must be appropriate in the
    circumstances.
It is quite possible to imagine a
    situation where the patients mental state would make it impossible to have a
    meaningful conversation as part of an examination.
In
    such a case, an adequate personal examination might well be restricted to
    direct observation of the patient's behaviour.
Conversely,
    where the observed behaviour is inconclusive, and where there is no impediment
    to a detailed personal interview, surely it is necessary for a meaningful
    conversation to occur.
[Emphasis added; footnotes
    omitted.]

[78]

The appeal judge
    held that she was bound by the decision of the British Columbia Court of Appeal
    in
Mullins
.

With respect, she was not. Nevertheless, the
    analysis in
Mullins
is helpful. The appeal judge applied the approach from
    that case and concluded that Dr. Hillen complied with the requirements of s.
    15(1):

On the evidence available, Dr. Hillen
    performed most of the requirements identified in
Mullins
in that he reviewed the appellants chart, history, and collateral
    information from an individual who had direct contact with the appellant. It
    was not possible to interview him due to his lack of cooperation. It was
    not necessary to do so, given that information about his psychiatric health was
    available elsewhere. Further given the nature of the appellants Axis I
    and Axis II disorders as described by Dr. Hillen in the Institutional Consult
    Letter, one must question whether it would have been possible to obtain
    accurate and reliable information directly from the appellant. Finally, in
    terms of directly observing the appellant, this is a case where the patients
    circumstances must dictate the extent to which such personal observation is
    necessary. The contextual approach referenced in
Mullins
and
Everson
is
    needed.  Specifically, one must question how likely it is that the
    appellant would have been likely to engage in the predatory, opportunistic,
    forceful, persistent, and fear-provoking type of coercive behavior that
    characterized his sex-offending behavior, in Dr. Hillens presence.

[79]

I agree with
    these conclusions. Section 15 of the MHA is designed to address mental
    disorders that compromise the safety of the patient or the public at large. The
    scheme cannot be so easily defeated by the simple failure of an individual to
    participate in the assessment process. The record indicates that the appellant
    refused to cooperate with psychiatric assessments in 2001, 2003 and in 2005. As
    Reid J. noted in the passage quote above, there may be factors, such as a mental
    disorder itself, that prevent individuals from having meaningful interactions
    with a physician acting under s. 15. In these circumstances, physicians may
    need to undertake other measures to evaluate a patient. That is what occurred
    here. In the face of the appellants obstinance, Dr. Hillen was thorough in his
    inquiries and careful in his analysis. He relied upon virtually all information
    that was available in relation to the appellant, both old and new.

[80]

I would add the
    following observation. To a limited extent, the appellant did engage with Dr.
    Hillen on the day the Form 1 was executed. As noted in para. 20 above, Dr.
    Hillen confronted the appellant with information from his parole officer, which
    the appellant denied. The appellant further denied having any mental health
    problems in the past. All of this contributed to Dr. Hillens ultimate
    conclusion that the appellant met the criteria for an application for psychiatric
    assessment (Form 1) under s. 15 of the MHA.

(c)

A Triggering Event

[81]

The appellant
    also argues that it was improper for Dr. Hillen to complete the Form 1 in the
    absence of a triggering event. This is another way of asserting that the
    appellant was committed solely on the basis of his criminal past.

[82]

This court addressed the need for a
    triggering event as a precondition to completing a Form 1 in
Starnaman
.
    Starnaman was a pedophile with a lengthy criminal record. While incarcerated, prison
    officials found materials in his cell that caused them concern  newspaper
    clippings and pictures of children, as well as pieces of paper with the names,
    ages and addresses of single mothers and their children in the Kingston and
    Toronto areas. Approximately 8 to 9 months later, a psychiatrist completed a
    Form 1, leading to Starnamans transfer and involuntary admission to a
    psychiatric facility. The Board confirmed his involuntary status. His appeal to
    the Ontario Court of Justice (General Division) was dismissed: see
Starnaman
    v. Penetanguishene Mental Health Centre
,
[1994] O.J. No. 1958.

[83]

In dismissing
    Starnamans further appeal, this court observed that neither the Board nor the
    appeal judge were concerned with whether s. 15 of the MHA had been complied
    with; instead, both were focused on whether the criteria for involuntary
    admission in ss. 20 and 39 were met. Moreover, the court stated at p. 705:

Second, assuming that a triggering event
    during the period of incarceration was necessary, it is our view that the
    discovery, in the appellant's cell, of the material referred to above,
    considered in light of his particular sexual deviancy and his prior
modus
    operandi
, amounted to a triggering event. In
    rejecting this ground of appeal, we specifically refrain from deciding whether
    a s. 15 application can be made in circumstances where the conduct prior to
    incarceration provides the only basis for the application.

[84]

In this case, the
    appeal judge recognized that
Starnaman
is inconclusive on the
    requirement for a triggering event. Nevertheless, she rejected this ground of
    appeal. Referring to the appellants comments to his parole officer, the appeal
    judge held, at para. 123:

However, if such a triggering event is
    required, the events as relayed by the appellants parole officer to Dr.
    Hillen, as outlined in Dr. Hillens Institutional Consult Letter, would be
    sufficient. In my view, the events illustrate the extent to which the
    appellants illnesses cause him to be unable to appreciate the social
    inappropriateness of his conduct, conduct which has repeatedly throughout his
    life crossed the line into criminality.

I agree with this conclusion.

[85]

I would also add
    that the wording of s. 15 of the MHA does not prevent a physician from completing
    a Form 1 in the absence of a triggering event. The temporal requirements of the
    section are clear. Section 15 required Dr. Hillen to have reasonable grounds to
    believe that the appellant:

has behaved or is behaving
violently towards another person
or
    has caused or is causing
another person to fear bodily
    harm from him or her


[and]

the person
is
    apparently suffering
from mental disorder of a nature
    or quality that likely will result in,

(e) serious bodily harm to another person.
    [Emphasis added.]

[86]

To preclude recourse to s. 15 until a
    triggering event of the type contemplated in the appellants submissions (i.e.,
    further offending) would seriously compromise the protective aims of the MHA.
    Moreover, as the appeal judge recognized, at para. 99, 
one must question how
    likely it is that the appellant would have been likely to engage in the
    predatory, opportunistic, forceful, persistent, and fear-provoking type of
    coercive behavior that characterized his sex-offending behavior, in Dr.
    Hillens presence.

[87]

I would dismiss this
    ground of appeal.

(4)

The Appellants
Charter
Claims

(a)

Psychiatric Gating

[88]

The appellant
    argues that his rights under ss. 7, 9, 11(h), and 12 of the
Charter
have been infringed by the timing and purpose of his involuntary admission in
    March of 2005, and his continued detention since. He submits that he was
    detained under the MHA not
as
his sentence was coming to an end, but
because
it was coming to an end. The appellant argues that the MHA was used for an
    improper purpose and he is the victim of psychiatric gating.

[89]

The appellant in
Starnaman
advanced a similar claim. This court refused to pronounce on the legality of
    psychiatric gating in general, stating, at p. 704:

Counsels submissions on behalf of the
    appellant raise issues specific to this record as well as broader concerns
    referable to the role of the civil commitment process and its relationship to
    the criminal process.
We are satisfied,
    however, that the appeal can and should be disposed of only by reference to the
    specific issues raised herein; the broader questions cannot be properly
    addressed on this record.
[Emphasis added.]

This
    court also rejected Starnamans narrower claim that the MHA had been used as a
    disguised attempt to prolong his detention beyond his sentence, or that it amounted
    to a
de facto
dangerous offender application.

[90]

In
P.S.
,
    at paras. 97-99, this court confirmed that
Starnaman
did not resolve, once
    and for all, the legality of psychiatric gating. There, the court found that
    the powers of the Board to deal with long-term involuntary patients were
    inadequate and violated s. 7 of the
Charter
. The legality of
    psychiatric gating was not a live issue in the case. While Sharpe J.A. noted
    that the practice has attracted some critical academic attention, he refused to
    comment on the issue. He stated, at para. 100:

However, the appellant has not squarely challenged the
    constitutionality of gating in this proceeding and accordingly I make no
    comment on that issue.

[91]

On his
habeas
    corpus
application, the appellant argued he was the victim of psychiatric
    gating. The application judge held, at para. 17:

The constitutionality of civil committal
    following a criminal sentence has been upheld by the Ontario Court of
    Appeal.
Starnaman
is a complete
    answer to the complaints of the applicant of psychiatric gating and double
    jeopardy. The application should be dismissed.

[92]

I agree with the appeal
    judge, at para. 113, that the application judge was mistaken. This court has
    yet to pronounce on the legality of the general practice of psychiatric gating.
    Ms. Fraser for the appellant does not ask us to so. Instead, she argues
that the practice is highly suspect,
    but not unconstitutional
per se
. She submits that the appellants
    circumstances must be carefully scrutinized for complete procedural and substantive
    compliance with the MHA. She asserts that when the record is subjected to this
    scrutiny, it reveals that the appellants rights under ss. 7, 9, 11(h), and 12
    of the
Charter
were, and continue to be, violated by his detention
    under the MHA.

[93]

The
    appeal judge applied this rigorous level of scrutiny through the lens of the
Charter
.
Her findings of fact or mixed fact
    and law cannot be dislodged absent a palpable and overriding error; questions
    of law are subject to the correctness standard: see
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
    S.C.R. 235.

I can find no error in her
    analysis.

[94]

As
    observed earlier in these reasons, the record does not support the proposition
    that the MHA was used for an improper purpose. If it is determined that s. 15
    was complied with, the appellants
Charter
claims largely falter. As the appeal judge stated, at para.
    121:

Accordingly, the fact that an individual
    becomes the subject of a Form 1 at the end of his penal sentence does not
    automatically result in an unlawful deprivation of liberty or an arbitrary
    detention. Those arguments would only be engaged if the record showed that
    the statutory requirements for the execution of the Form 1 were not met, which
    is not the case with the appellant.

[95]

The appellants arguments
    operate on the assumption that, as a sentenced offender, he was somehow immune
    from the reach of the MHA. This is not the case. Any individual, at any point
    in time, is potentially subject to s. 15 of the MHA. This includes individuals serving
    custodial sentences, or subject to other forms of involuntary detention. As
    Klowak J. stated in
Stock
, at p. 552, one must
    simply look at the criteria in the
Mental Health Act
itself to determine whether or
    not involuntary detention is justified, and it matters not where the person
    confined has been resident, provided the required criteria are met.

[96]

When a Form 1 is completed
    as an individual completes a sentence, suspicions may arise. As described above,
    at paras. 9-15, the appellant has been subjected to the civil commitment process
    twice, both times at the end of a custodial sentence. Little is known about the
    circumstances of the first Form 1 and the appellants subsequent
    hospitalization, other than that he was discharged from Waypoint directly into
    police custody to face criminal charges that dated back many years. The propriety
    of how the MHA was used at that time is not before us. However, it is a
    contextual factor that reinforces the need to carefully scrutinize the
    appellants present circumstances to ensure that there has been strict
    compliance with the MHA.

[97]

The appellant places great
    emphasis on the timing of Dr. Hillens completion of the Form 1. However, this
    event must be viewed in light of the fact that efforts were made to assess the
    appellant much earlier in his sentence, in 2001 and 2003.

[98]

With these observations in
    mind, I consider the appellants arguments under the
Charter
.

(b)

Fundamental Justice (s.
    7)


Introduction

[99]

There can be no
    doubt that the appellants liberty interests are engaged by virtue of his
    detention under the MHA. The respondents do not suggest otherwise. The critical
    issue is whether the deprivation of his liberty is in accordance with the
    principles of fundamental justice.

[100]

The appellant
    relies generally on the articulation of the principles of fundamental justice
    in
Canada (Attorney General) v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R.
    1101. In particular, he relies on para. 123, in which the Chief Justice stated:

All three principles  arbitrariness, overbreadth, and gross
    disproportionality  compare the rights infringement caused by the law with the
    objective of the law, not with the laws effectiveness. That is, they do not
    look to how well the law achieves its object, or to how much of the population
    the law benefits. They do not consider ancillary benefits to the general
    population.  Furthermore, none of the principles measure the percentage of the
    population that is negatively impacted. The analysis is qualitative, not
    quantitative.  The question under s. 7 is whether
anyones
life,
    liberty or security of the person has been denied by a law that is inherently
    bad; a grossly disproportionate, overbroad, or arbitrary effect on one person
    is sufficient to establish a breach of s. 7. [Emphasis in original.]

See
    also
Carter v. Canada (Attorney General)
, 2015 SCC 5, [2015] 1 S.C.R.
    331, at paras. 83-90.

[101]

The appellant
    argues that the appeal judge erred in failing to place the burden on the state
    to show that the appellant was detained for a non-punitive purpose. The general
    rule, dating back to the early
Charter
decision in
R. v. Collins
,
    [1987] 1 S.C.R. 265, is that the person asserting an infringement must bear the
    burden of proof on a balance of probabilities, both in terms of the substantive
    right, and any consequential remedy under s. 24. This rule applies to those
    rights, such as s. 7, that are qualified by their own terms: see
R. v.
    Malmo-Levine
, 2003 SCC 74, [2003] 3 S.C.R. 571, at para. 97.

[102]

Aside from the special circumstances
    in which the Crown bears the burden of justifying warrantless searches under s.
    8 of the
Charter
(see e.g.
Collins
, at pp. 277-278), fairness
    may sometimes dictate the reversal of the usual burden of legal persuasion.
    However, these circumstances are restricted to 
those relatively rare cases where the
    party who would normally bear the burden of proof has no reasonable prospect of
    being able to discharge that burden, and the opposing party is in a position to
    prove or disprove the relevant facts: see
Peart v. Peel Regional Police Services Board
, [2006] O.J. No. 4457
    (C.A.), at para. 149.

[103]

This is not such
    a case. The appellant adduced no evidence to support his claim that Dr. Hillen
    or others involved in his civil committal perverted the purposes of MHA. A
    relaxation of the burden of proof is not a matter of convenience; it is a
    matter of necessity. Such necessity is absent on this record.


Arbitrariness and Gross Disproportionality

[104]

The appellant
    argues that his detention is arbitrary because there is a disconnect between
    the objects of the MHA and its effect on him as an individual. He also argues
    that his detention is grossly disproportionate because of his lengthy detention
    without a triggering mental health event (and on the basis of past criminal
    conduct and diagnoses).

[105]

In
Bedford
,
    the Chief Justice explained the concept of arbitrariness under s. 7 in
    following terms, at para. 111:

Arbitrariness asks whether there is a direct
    connection between the purpose of the law and the impugned effect on the
    individual, in the sense that the effect on the individual bears some relation
    to the laws purpose. There must be a 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 person.... A 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; reference omitted.]

[106]

In
Carter
,
    the Court wrote, at para. 83, [a]n arbitrary law is one that is not capable of
    fulfilling its objective. It exacts a constitutional price in terms of rights,
    without furthering the public good that is said to be the object of the law.

[107]

The focus on this
    appeal is not the validity of the MHA, but the appellants treatment under the
    law. I agree with the appeal judges conclusion that the appellants treatment
    under the MHA is not arbitrary.

[108]

As this court
    held in
Thompson v. Ontario (Attorney General)
,
2016 ONCA 676, 134 O.R.
    (3d) 255, the MHA has the dual purpose of promoting health and protecting the
    public.
The appeal judge
    found that the appellant was not detained for any improper purpose. He was, and
    continues to be, detained because he has a mental disorder that will likely
    result in serious bodily harm to another, which he lacks insight into, refuses
    to receive treatment for, and resists all attempts to manage. On this record,
    the MHA was used in a manner that is consistent with its purposes. There is no
    disconnection between the laws purpose and its effect on the appellant.

[109]

The Chief Justice
    explained the concept of gross disproportionality in s. 7 in
Bedford
, at
    para. 120:

Gross disproportionality asks a different
    question from arbitrariness and overbreadth. It targets the second fundamental
    evil: the laws effects on life, liberty or security of the person are so
    grossly disproportionate to its purposes that they cannot rationally be
    supported.
The 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.
[emphasis added]

[110]

In
Carter
,
    the Supreme Court elaborated on this concept, and its limitations as a
    principle of fundamental justice, at para. 89:

The inquiry into gross disproportionality
    compares the laws purpose, taken at face value, with its negative effects on
    the rights of the claimant, and asks if this impact is completely out of sync
    with the object of the law (
Bedford
, at para.
    125). The standard is high: the laws object and its impact may be
    incommensurate without reaching the standard for
gross
disproportionality (
Bedford
, at
    para. 120;
Suresh v. Canada (Minister of Citizenship &
    Immigration)
, 2002 SCC 1, [2002] 1 S.C.R.
    3 (S.C.C.), at para. 47).

[111]

I agree with the appeal judge that
    the appellant has failed to establish that his deprivation of liberty has been
    grossly disproportionate. As she recognized, at para. 133, the appellants
    detention is necessary to achieve the public protection function of the MHA.
    The restrictions placed on him, while onerous, are not
grossly disproportionate given the
    importance of protecting public safety and the dire consequences of a mistake.


Abuse of Process

[112]

The appellant
    argues that his detention is an abuse of process because the MHA is being used
    in place of the dangerous offender provisions in Part XXIV of the
Criminal
    Code
. The appellant asserts that Parliament intended to foreclose the
    pursuit of an indeterminate sentence for habitual offenders outside of that
    regime. The appellant also claims that his detention under the MHA violates
    the principle of collateral estoppel by giving rise to contradictory rulings
    on the same evidence. By this claim, the appellant submits that detention
    under the MHA amounts to an end run around this courts decision upholding his
    five-year criminal sentence. I would reject both of these arguments.

[113]

First, as
    addressed earlier in these reasons, the appellants present detention is not an
    indeterminate sentence. His detention under the MHA has no penal or punitive
    purpose. I will elaborate on this theme below, when addressing the appellants
    double jeopardy argument.

[114]

Secondly, this
    argument repeats the appellants more general contention that the provisions of
    the MHA were used against him for an invidious purpose. This contention has
    already been rejected for lack of evidence.

[115]

Finally, the
    collateral estoppel argument is completely without merit. This court did not
    reduce the appellants sentence; it confirmed that the appellant should receive
    the maximum sentence for his offending. The subsequent decision, taken by other
    parties, to invoke the MHA did not in any way contradict or undermine this
    courts decision to dismiss his appeal.


Failure of the State to Follow the Law

[116]

The appellant
    submits that s. 7 of the
Charter
has been infringed because the state
    acted unlawfully in failing to release the appellant from Kingston Penitentiary
    at warrant expiry, and by failing to follow the requirements of the MHA. This
    replicates the unmeritorious psychiatric gating argument. Moreover, the casual
    use of the expression the State glosses over the important fact that the
    appellant was under the control of the Federal government when he was
    imprisoned at Kingston Penitentiary. As I have already noted, the Attorney
    General of Canada is not a party to these proceedings.


Lack of Hearing to Consider Substantive Rights

[117]

The appellant
    argues that his detention violates s. 7 of the
Charter
because the MHA
    fails to provide him with an adequate basis upon which to assert his rights. The
    appellant points to s. 70.1 of the
Health Care Consent Act, 1996
,
    which provides that, [t]he Board shall not inquire into or make a decision
    concerning the constitutional validity of a provision of an Act or a
    regulation. Moreover, at the time of the oral hearing into this matter, the
    issue of whether the Board may exercise s. 24(1) jurisdiction was left
    unresolved in
P.S.
, at paras. 190-192. As noted above,
E.S.
has
    since resolved this issue
.

[118]

The essence of
    this aspect of the appellants s. 7 claim is that the Board, even with the
    amended powers, lacks the robust power necessary to provide meaningful process
    of ongoing review that takes into account the context and circumstances of the
    individual case. In more transparent terms, the appellant complains that the
    Boards is powerless to examine the validity of his Form 1.

[119]

The appellants
    claim under this heading is, in reality, an attack on the constitutional
    validity of the MHA, and especially the Boards role in this scheme. This broad
    constitutional claim has not been formally asserted in this litigation and I
    would not give it consideration.

[120]

Before leaving
    this ground of appeal, I observe that an involuntary patient in the appellants
    circumstances is not powerless to assert
Charter
rights. Although the
    Boards powers are curtailed by s. 70.1 of the
Health Care Consent Act,
    1996
, and by
E.S.
, the
Charter
still has a role to play.
    As Rouleau J.A. recognized in
E.S.
, at para. 97, an appellant may
    combine an appeal from a Boards decision with an originating application to
    the Superior Court seeking
Charter
remedies. This occurred in this
    case.

[121]

Moreover, the
    Board must act in a manner that balances
Charter
values. As Rouleau
    J.A. recognized in
E.S.
, at para. 99:

The Boards decisions often have a direct
    impact on fundamental
Charter
rights,
    such as the right not to be detained and the right to control ones body.
    See
Gligorevic v. McMaster
, 2012 ONCA
    115, 109 O.R. (3d) 321, at para. 60. In deciding issues of detention and
    consent to treatment, the Board is often engaged in balancing
Charter
rights, such as those under s. 7 of the
Charter
, against the objectives of the statutes which the Board is mandated
    to apply. This balancing reflects the Boards obligation to exercise its
    discretion in a
Charter
-compliant way.
    Thus, while the Board does not have s. 24(1)
Charter
jurisdiction, it is not precluded from considering the impact
    of its decisions on
Charter
rights.

(c)

Arbitrary Detention (s.
    9)

[122]

In addition to his s. 7 claim based
    on arbitrariness, the appellant argues that he was arbitrarily detained under
    s. 9. This argument can be readily disposed of. In
R. v. Mann
, 2004
    SCC 52, [2004] 3 S.C.R. 59, Iacobucci J. held at para. 20, 
[i]t is well recognized
    that a lawful detention is not arbitrary within the meaning of that
    provision. The appeal judge, at para. 120, correctly found that the
    appellants detention was lawful under the MHA. This conclusion is determinative
    of this
Charter
claim.

(d)

Double Jeopardy (s.
    11(h))

[123]

The appeal judge correctly
    dismissed the appellants claim under s. 11(h) of the
Charter
, which provides:

11.
Any person charged
    with an offence has the right



(h)
if finally acquitted of the offence,
    not to be tried for it again and, if finally found guilty and punished for the
    offence, not to be tried or punished for it again....

[124]

Section 11(h) is
    inapplicable for the simple reason that the appellant is not being punished
    twice for the same offence. As the Supreme Court held in
R. v. Rodgers
,
    2006 SCC 15, [2006] 1 S.C.R. 554, at para. 63:

As a general rule, it seems to me that the
    consequence will constitute a punishment when it forms part of the arsenal of
    sanctions to which an accused may be liable in respect of a particular offence
    and the sanction is one imposed in furtherance of the purpose and principles of
    sentencing.

See
    also see
Canada (Attorney General) v. Whaling
, 2014 SCC 20, [2014] 1
    S.C.R. 392, at para. 52.

[125]

As the
    introductory words of s. 718 of the
Criminal Code
provide, The
    fundamental purpose of sentencing is to protect society and to contribute,
    along with crime prevention initiatives, to respect for the law and the maintenance
    of a just, peaceful and safe society by imposing just sanctions. This purpose
    is achieved through the various objectives of sentencing, including
    denunciation, deterrence and rehabilitation. It is sometimes necessary to
    achieve these goals with sanctions of indefinite incarceration or long-term
    supervision: see
Criminal Code
, Part XXIV. These are true punitive or
    penal measures.

[126]

Not all detention
    authorized by the
Criminal Code
is punitive in nature. For example,
    persons found not criminally responsible or unfit to stand trial may be
    detained for lengthy periods of time. However, there is no punitive or penal
    purpose associated with detention on either of these two bases: see
Winko
    v. B.C. (Forensic Psychiatric Institute)
, [1999] 2 S.C.R. 625, at paras.
    30, 40-43; and
R. v. Demers
, 2004 SCC 46, [2004] 2 S.C.R. 489, at
    para. 36.

[127]

Protection of
    society is recognized as one of the legitimate aims of mental health legislation.
    Detention in a hospital is sometimes necessary for this purpose. However, it
    can hardly be considered punitive or penal in nature. There is no censure or
    blame involved in detaining an individual under the MHA.

[128]

In
Thompson
, this court considered
    the constitutionality of amendments to the MHA brought about by the enactment
    of
Brians Law
    (Mental Health Legislative Reform), 2000
, S.O. 2000, c. 9. In characterizing
    the purpose of the legislation, Sharpe J.A. stated the following, at para. 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. [Emphasis added.]

[129]

The fact that the
Criminal

Code
and
MHA
both promote public safety
    through detention does not imbue the latter with a punitive or penal purpose.
    This overlap does not engage s. 11(h). Moreover, as the trial judge found, it has
    not been established that the MHA was used for punitive or penal purposes
    against the appellant.

(e)

Cruel and Unusual Treatment (s.
    12)

[130]

The appellant
    argues that his lengthy and continued detention reaches the standard of gross
    disproportionality in s. 12 of the
Charter
. He claims that his
    detention has been so excessive that it is an outrage to the standards of
    decency, and that Canadians would find it abhorrent and intolerable: see
R.
    v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14; and
R. v.
    Nur
, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 39. I agree with the
    appeal judge that there is no s. 12 infringement.

[131]

The appellant likens his
    circumstances to the situation in
Charkaoui v. Canada (Citizenship and
    Immigration)
,
2007 SCC 9, [2007] 1 S.C.R. 350, in which the Court stated, at para. 98:

[I]t has been recognized that indefinite
    detention in circumstances where the detainee has no hope of release or
    recourse to a legal process to procure his or her release may cause psychological
    stress and therefore constitute cruel and unusual treatment.

[132]

The comparison is inapt.
    The record demonstrates that the appellant has had many formal hearings before
    the Board, each providing the opportunity for his release from detention. Each
    time, the Board has found that the appellant continues to meet the conditions
    for involuntary commitment.

[133]

I accept that it is
    unrealistic to think that the appellants diagnoses will ever change. However,
    the existence of a mental disorder is only one of the conditions for
    involuntary commitment under the MHA. Another key element is the impact of the disorder
    on a persons risk to himself or herself, and others. Except for a brief period
    of time when the appellant took Lupron, he has done very little to address his
    risk to others. As noted above, at para. 29, Dr. Livermore has evaluated the
    appellant with a view to the possibility of lowering his level of security and,
    perhaps, releasing him into the community. However, this will not occur until
    the appellant cooperates with, and shows progress from, the treatment plan that
    his attending psychiatrist has developed to make his risk manageable in the
    community. As Klowak J. stated in
Stock
, at p. 555, [a]lthough this man can, theoretically, be
    detained indefinitely unless he voluntarily agrees to treatment, his own
    control of that treatment gives him a large measure of control over the timing
    of his own eventual release. The appellant stands in a similar position.

[134]

Since the
    appellants last appearance before the Board, the MHA as been amended to
    provide the Board with powers to more effectively address the circumstances of
    long-term detainees such as the appellant: see s. 41.1. The appellant has not
    had the benefit of a hearing in these new circumstances.

G.

DISPOSITION

[135]

I would dismiss
    the appeal. The respondents do not seek their costs of this appeal.
    Accordingly, I would make no order.

Released:
    DD SEP 13 2017

G.T.
    Trotter J.A.

I agree.
    Doherty J.A.

I agree.
    M.L. Benotto J.A.


