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Phaneuf Class Action Dismissed
Published in the December 2009 issue of Litigation Notes - View Article
The Ontario Divisional Court has dismissed a class proceeding brought on behalf of persons detained in jail while awaiting psychiatric assessments pursuant to Section 672.11 of the Criminal Code of Canada.
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. In March of 2008 we reported that Leave to Appeal to the Divisional Court had been granted. The decision of the Divisional Court was released on December 17, 2009 and not only has the decision certifying the class been set aside but the claim has been dismissed in its entirety.
Ms. Phaneuf was arrested for criminal harassment on November 1, 2005. She was found fit to stand trial but was ordered to undergo a psychiatric assessment pursuant to section 672.11 of the Criminal Code of Canada to determine whether she should be held criminally responsible for her behaviour. The Criminal Code mandates that an assessment order shall be in force for a period of 30 days. Ms. Phaneuf was ordered to be assessed at the Royal Ottawa Hospital but after the order was made, it took 16 days before she was transferred from the detention centre to the hospital. Ms. Phaneuf sought to certify a class proceeding against Her Majesty the Queen in Right of Ontario (“Ontario”) on behalf of all persons who claimed that they were unlawfully held in detention centres pending psychiatric assessments. The claim sought damages against Ontario for false imprisonment, breach of fiduciary duty, breach of duty of care and breach of sections 7 and 9 of the Canadian Charter of Rights and Freedoms. The Motions Judge in the Ontario Superior Court of Justice certified the class proceeding and in doing so relied heavily on the case of R. v. Hussein. In that case two individuals had been detained for 32 and 29 days respectively awaiting assessment, so that the assessment period allowed by the Code had expired in one case and almost expired in the other. This was found to be unconstitutional, although the judge suspended his declaration for 6 months to allow Ontario to increase the number of beds available for the purpose. In fact a number of additional assessment beds were added throughout the Province but this failed to resolve the problem.
The Divisional Court found that it would be inappropriate to require that the Ministry of Health be required to provide a bed immediately for an accused ordered to be assessed: “If the legislature intended that a bed be provided immediately it would have said so. It did not. To make it mandatory to have the bed available would be unfair to the other members of society in the Province that need a bed for other equally important medical procedures or assessments”. Section 672 of the Criminal Code provides for the accused to be “in custody” and does not specify whether that is in a designated hospital or a jail. Since the legislation had not been challenged in an appropriate application, there was no question but that Ms. Phaneuf had been lawfully detained.
The Plaintiff had not pleaded a general duty of care on behalf of the Crown to take all reasonable steps to ensure that a bed is immediately available to comply with an assessment order. The Crown cannot attract liability for decisions that are policy-based and the decision as to how to provide the best mental health care services is a policy-based decision. The Criminal Code “… is centrally concerned with protection of the general public and not imposing a duty of care relationship between individual accused detainees and the Crown”.
The Court went on to conclude that even if there had been a cause of action, it was not a case which was suitable for a class proceeding. There are many issues which could have an impact on why a particular individual was not transferred to a hospital in a timely manner and these individual issues outweigh the common issues. Furthermore “…no meaningful analysis was made concerning the allocation of resources by Ontario in the mental health sector measured against the spectrum of the needs in the whole health spectrum. This may well be the quintessential analysis required in order to determine if more resources can be allocated to the provision of beds in designated hospitals to deal with persons ordered to be assessed under section 672 of the Code. Absent this analysis, no realistic perspective would be available to the judiciary to determine if behavioural modification is required. It is also unclear if behaviour modification is a relevant concern in the circumstances in this case as I have chosen to classify the decisions involved as policy and not operational.”
Her Majesty the Queen in Right of Ontario v. Sylvie Phaneuf,
Ontario Divisional Court, December 17, 2009