



COURT OF APPEAL FOR ONTARIO

CITATION: Ranieri v. Nagari, 2017 ONCA 336

DATE: 20170427

DOCKET: C60397

Doherty, MacFarland and Rouleau JJ.A.

BETWEEN

Mary Ranieri

Appellant

and

Dr. Satyadev Nagari

Respondent

Mary Ranieri, acting in person

Mercedes Perez, appearing as
amicus curiae

Janice Blackburn, for the respondent

Heard: April 7, 2017

On appeal from the order of Justice Dale Parayeski of the
    Superior Court of Justice, dated January 12, 2015, dismissing an appeal from a
    decision of the Consent and Capacity Board, dated June 25, 2014.

By the Court:

Overview

[1]

The respondent Dr. Nagari found the appellant incapable of consenting to
    anti-psychotic medication to treat her delusional disorder under s. 4(1) of the
Healthcare Consent Act, 1996
, S.O. 1996, c. 2, Sched. A. The appellant
    applied for review of the respondents finding to the Consent and Capacity
    Board (CCB). The Board unanimously confirmed the respondents finding of
    incapacity. The appellants appeal to the Superior Court of Justice was
    dismissed, after which she brought the present appeal.

Procedural History

[2]

Before turning to the grounds of appeal, some background is necessary.
    While facing a series of criminal charges, the appellant was admitted to St.
    Josephs Health Care Hamilton for an assessment pursuant to s. 16 of the
Criminal
    Code
to determine whether she was not criminally responsible (NCR).

[3]

On June 27, 2014, the Ontario Court of Justice found the appellant NCR
    with respect to the outstanding charges and ordered that she be detained at St.
    Josephs pending disposition by the Ontario Review Board (ORB).

[4]

On July 7, 2014, the appellant was found incapable with respect to
    certain psychiatric treatment by Dr. Nagari the attending physician at St.
    Josephs. It is that finding that was appealed to the CCB decision and that is
    at issue in this proceeding.

[5]

The appellant remained detained at the secure forensic unit of St.
    Josephs pursuant to a disposition by the ORB. During this time her various
    appeals, including an appeal from the NCR verdict and an appeal of the CCB
    decision, were awaiting hearing.

[6]

On October 20, 2016, the Superior Court allowed the appellants appeal
    of the NCR verdict and ordered a new trial. The court also granted the
    appellant judicial interim release pending trial.

[7]

The appellant, however, was not released from the secure forensic unit
    at St. Josephs because she was immediately detained pursuant to a
Form 1
application for psychiatric
    assessment under the

Mental
    Health Act
, R.S.O. 1990, c. M.7. This was followed by a Form 3 certificate
    of involuntary admission under the
Mental Health Act
. She has remained
    in detention since that date.

Analysis

[8]

With this background, we turn to the present appeal of the treatment
    incapacity finding. The appeal was argued by the appellant with the assistance
    of
amicus
.

[9]

The appellant argued first that the appeal is moot. In her submission,
    the incapacity finding under appeal is void, having been made while she was
    wrongfully detained. This is because the incapacity finding was made while she
    was detained pursuant to a finding of NCR and that finding has now been set
    aside on appeal.

[10]

The appellant also relies on the endorsement of Doherty J.A., made on
    January 19, 2016, in the course of case management hearings involving the
    present appeal. In that endorsement, Doherty J.A. noted that the appeal from
    the finding of incapacity would become moot if the appeal [of the NCR finding]
    in the Superior Court is successful.

[11]

In our view, the appeal is not moot. The finding of incapacity was made
    while the appellant was legally detained pursuant to an NCR finding. The fact
    that, on appeal, this finding was later set aside, does not render unlawful the
    period of detention while the NCR finding was still legally enforced, nor the
    finding of incapacity and its independent confirmation by the CCB during the
    detention.

[12]

With respect to the statement by Doherty J.A. that the matter would
    become moot in the event of a successful appeal, that comment was made at a
    time when it was assumed that, if the appeal from the NCR finding was
    successful, the appellant would be released from detention. It was not
    anticipated that, as has occurred, she would remain detained, this time
    pursuant to the
Mental Health Act
rather than the
Criminal Code
.
    Had the detention ended following her successful appeal of the NCR finding, the
    present appeal from the incapacity finding, while not necessarily moot in the
    legal sense, would likely have become moot in the practical sense in that it
    would have been difficult if not impossible for the authorities to administer
    the proposed treatment if the appellant was not detained in the hospital.

[13]

With respect to the merits of the appeal, the appellant submits that the
    finding of incapacity respecting treatment with anti-psychotic medication was
    unreasonable.

[14]

We disagree.

[15]

The evidence before the CCB established that the appellant suffers from a
    delusional disorder, persecutory type. The appellants testimony clearly showed
    that although she could entertain the possibility that there are delusional
    people, she did not consider herself delusional and there was no possibility
    that some of what she was thinking could be delusional.

[16]

The CCB concluded as a result that the appellants condition was such that
    she was:

... unable to recognize that she is affected by [the illness]
    manifestations and therefore is unable to apply the relevant information to her
    circumstances, and unable to appreciate the consequences of her decision. She
    did not recognize the manifestations specific to the treatment proposed which
    was the delusional beliefs coupled with agitation, aggression and impulsive/volatile
    responses.

[17]

The CCB provided detailed reasons and they fully support its finding
    that although the appellant could understand relevant information about the
    various treatments at issue, she was not able to apply it to her own
    circumstances. We see no basis to interfere.

[18]

The appellant further submits that the CCBs decision should be set
    aside because it, like the NCR finding is based on inadmissible hearsay. She
    referred this court to the reasons of the Superior Court wherein that court set
    aside the finding of NCR because it was made, at least in part, in reliance on
    inadmissible hearsay. This, in her view, undermines the finding of incapacity.

[19]

In our view, the setting aside of the NCR finding is unrelated to the
    CCBs finding. The CCB relied on the evidence presented at the hearing and that
    evidence, standing alone, fully supported the CCBs conclusion. In any event,
    the CCB, unlike a criminal court, can rely on hearsay in making a decision.

[20]

Amicus
made a further submission on behalf of the appellant.
    She argued that that there is no support for the Boards decision that the
    appellant is incapable of consenting to treatment with benzodiazepines and
    anti-cholinergic medication.

[21]

This argument was not raised before the Board; nor does it appear to
    have been raised before the appeal judge. This court will not generally
    entertain new issues on appeal save in exceptional circumstances:
Sawdon
    Estate v. Sawdon
, 2014 ONCA 101, 119 O.R. (3d) 81, at para. 75. In our
    view there are no such exceptional circumstances in this case.

[22]

Finally, the appellant seeks to introduce fresh evidence on the appeal.
    We have had the opportunity to review those materials and do not consider that
    they are of any assistance in the determination of the appeal. In addition, no
    proper motion to admit the fresh evidence was presented. Even if a proper
    motion had been brought, we would have dismissed it as the proposed evidence
    does not meet the
Palmer
test.

[23]

For these reasons, the appeal is dismissed.

Released:

DD                                          
Doherty J.A.

APR
    27 2017                          Paul Rouleau J.A.


J. MacFarland J.A.


