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No Habeas Jurisdiction in Ontario Court of Justice
Published in the August 2007 issue of Litigation Notes - View Article
On April 10, 2006 Romeo Rosete appeared in front of Justice Richard Schneider in the Ontario Court of Justice at Old City Hall in Toronto. He was charged with assault and uttering death threats. He was examined by a psychiatrist, who recommended that he be sent to a psychiatric facility for an assessment with respect to his fitness to stand trial.
Mr. Rosete’s counsel asked that the assessment be conducted forthwith. Justice Schneider expressed some concern that the Centre for Addiction and Mental Health (“CAMH”) might not be able to accept Mr. Rosete immediately, due to a chronic bed shortage.
Mr. Rosete’s counsel suggested that if Justice Schneider were to make an order that Mr. Rosete be transferred to CAMH forthwith and this order was not complied with, he would bring a habeas corpus application immediately. Justice Schneider therefore ordered that Mr. Rosete be delivered to CAMH for his fitness assessment on April 11, 2006.
As was anticipated, CAMH was not in a position to comply with this order and counsel for Mr. Rosete applied to the Ontario Superior Court for a writ of habeas corpus. The application was heard by Mr. Justice Nordheimer on April 13, 2006 and he elected to exercise his discretion under section 775 of the Criminal Code and to refer the matter back to Justice Schneider. Section 775 provides that “where proceedings…have been instituted before a judge or court having jurisdiction, by… a person…to have the legality of his imprisonment determined, the judge or court may, without determining the question, make an order for the further detention of that person and direct the judge, justice or a provincial court judge under whose warrant he is in custody… to take any proceedings, hear such evidence or do any other thing that, in the opinion of the judge or a court, will best further the ends of justice.”
In the meantime, Mr. Rosete had been assessed at Old City Hall and found unfit to stand trial. On hearing the application, Justice Schneider ordered that Mr. Rosete be sent to CAMH to receive treatment for the purpose of making him fit.
However, Justice Schneider went further. He deplored the lack of available psychiatric beds in the Toronto region and stated that this had to be addressed by the Ontario Government. He held that once a court has ordered a fitness assessment, it has no further authority to detain the accused in jail. The accused should be delivered to hospital on a forthwith basis.
Justice Schneider therefore made a declaratory order to the effect that to have detained Mr. Rosete in a jail while he was the subject of an assessment order was unlawful. In making that order, he purported to be exercising habeas corpus powers delegated to him by Justice Nordheimer.
Justice Schneider’s decision was appealed by the Crown to the Ontario Court of Appeal, which released its decision on August 31, 2007. The Court of Appeal concluded that an appeal was not the proper remedy. Section 784 of the Criminal Code provides that an appeal lies from a decision of a judge who has jurisdiction to make an order with respect to a habeas corpus application and in this case Justice Schneider did not have that jurisdiction. Only a Superior Court of a province has jurisdiction to entertain habeas corpus applications and Section 775 of the Criminal Code does not permit that power to be delegated to a judge of the Ontario Court.
The Court of Appeal ruled that the Crown could move to quash Justice Schneider’s order as having been made without jurisdiction although stated that it doubted what practical purpose would be served by such an application. Rather the Court expressed the opinion that Justice Schneider’s interpretation of the Criminal Code provisions referable to assessment orders should best viewed as obiter dicta “…worthy of careful consideration by those who may subsequently be called upon to interpret those provisions.”
R. v. Rosete, 2007 ONCA 590