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Leave to Appeal Granted in Phaneuf Class Action
Published in the March 2008 issue of Litigation Notes - View Article
Summary: A class action was certified on behalf of individuals who had to wait in jail pending the carrying out of a court-ordered psychiatric assessment. The divisional Court has granted leave to appeal on the basis that there is reason to doubt the correctness of the certification decision
In the August 2007 edition of Litigation Notes, we reported on the certification of a class action in the matter of Sylvie Phaneuf v. Her Majesty the Queen in Right of Ontario. The representative plaintiff in the proposed class action, Sylvie Phaneuf, was arrested on charges of criminal harassment. When she appeared before a judge of the Ontario Court of Justice, she was ordered to undergo a thirty day psychiatric assessment pursuant to s. 672.11 of the Criminal Code. It took 16 days before a psychiatric bed became available and during that time Ms. Phaneuf remained in custody at the Regional Detention Centre. Ms. Phaneuf commenced a class action on behalf of all individuals who had been forced to wait for a psychiatric assessment since the 10th day of November 2004. That date was selected because it was the date of the decision of the Ontario Superior Court in R. v. Hussein. In that case two individuals had waited 32 days and 29 days respectively before receiving a court-ordered assessment. The Court in Hussein declared that this was a violation of their rights under ss. 7 and 9 of the Canadian Charter of Rights and Freedoms and expressed its assumption that the government would “move swiftly to correct the unconstitutionality of the present practice”.
Ms. Phaneuf’s action was certified as a class action by the Ontario Superior Court of Justice and Her Majesty the Queen in Right of Ontario (“Ontario”) sought leave to appeal that decision to the Divisional Court. On March 5, the Divisional Court granted leave to appeal on the basis that there are good reasons to doubt the correctness of the certification decision. The Divisional Court found that the proposed class action was predicated largely on the interpretation that the motions judge gave to the Hussein decision, which is to the effect that there is no lawful authority for Ontario to detain an individual who is subject to and awaiting the commencement of an assessment order in any facility other than a hospital. However, there is an alternative explanation for Hussein which is that the detention only becomes unlawful after the 30 day assessment period has expired. In Hussein, the two individuals affected did not have their assessments completed before the expiry of the 30 days. Sylvie Phaneuf, on the other hand, was admitted after 16 days and it could be argued that so long as her assessment was completed in the remaining 14 days, there was nothing unlawful about her detention.
The Divisional Court found other reasons to doubt the correctness of the certification order. Assessment orders are dealt with in s. 672.11 of the Criminal Code, whereas issues relating to custody pursuant to an assessment order are dealt with in s. 672.16. That distinction was said to have been blurred or ignored by the motions judge. In addition, the motions judge had stated that Ontario “…having full control of how assessment orders will be implemented, has a fiduciary duty to the vulnerable individuals…not to expose them to the dangerous environment of jails pending the completion of the assessment…”. Ontario argued and the Divisional Court agreed that Ontario does not in fact have full control of how assessment orders will be implemented, because the Criminal Code authorizes persons not within Ontario’s control, including the judiciary and hospitals, most of whom are separate legal entities, to make those decisions.
The Divisional Court also found that there was reason to doubt the correctness of the motion judge’s determination that the action raises common issues, the resolution of which will meaningfully advance the litigation. The Divisional Court found that the common issues “…could very likely end at the fact of there being assessment and detention orders for each of those members. After that commonality, individual issues could overwhelm and dominate. These diverse individual issues would arise out of considerations related to the separate purposes of detention and assessment that must be considered in each accused person’s case and exercised by others not able to be controlled by Ontario, such as the judges and hospitals, of their discretion in carrying out these separate purposes for each accused…”
The paucity of common issues also caused the Divisional court to doubt the correctness of the motion judge’s conclusion that a class action would be a preferable proceeding in the circumstances.
It should be emphasized that this was a leave application only and we must now await the decision of the Divisional Court on the appeal itself.
Phaneuf v. Ontario, 2008 Can LII 9375