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Habeas Corpus Refused
Published in the April 2010 issue of Litigation Notes - View Article
The Ontario Superior Court of Justice refuses a habeas corpus application because the the provisions of the Mental Health Act and the Health Care Consent Act, 1996 constitute a complete, comprehensive and expert procedure for the review of the decision to detain the Applicant in a psychiatric facility.
In 2004 Mr. Capano was found not criminally responsible on account of mental disorder in respect of various criminal charges. After a period of admission to the Centre for Addiction and Mental Health (“CAMH”) he was discharged into the community by the Ontario Review Board, on a conditional discharge.
In February 2010 Mr. Capano was brought to the emergency department of CAMH after becoming increasingly aggressive and abusive in the community. A Certificate of Involuntary Admission was issued on March 1, 2010.
Mr. Capano applied to the Consent and Capacity Board (“CCB”) for a hearing to inquire into whether or not the criteria for civil committal continued to be met at the time of the hearing. The CCB convened the hearing on Friday March 5 and Mr. Capano’s attending physician, Dr. LeBlanc, requested an adjournment because he was new to the case and felt that he needed more time to collect and prepare his evidence. The adjournment was denied. Dr. LeBlanc’s evidence was heard but the hearing was not completed and it resumed on March 10. At that hearing, Dr. LeBlanc had counsel, who sought to re-open and supplement Dr. LeBlanc’s evidence. The Board denied that request and granted a motion of “nonsuit” requested by Mr. Capano’s counsel.
The CCB rendered its oral decision at noon on March 10 and Dr. LeBlanc’s counsel promptly advised Mr. Capano that the Board’s decision would be appealed so that he was not free to leave the hospital. Mr. Capano’s counsel told him that he was in fact free to leave.
Counsel for CAMH prepared a Notice of Appeal but when Dr. LeBlanc attempted to serve Mr. Capano at around 4:35 p.m., he discovered that Mr. Capano had left the facility.
Because Mr. Capano had been told that he was not free to leave the facility, Dr. LeBlanc issued a Form 9 Order of Return which was delivered to the police on the basis that Mr. Capano was absent without leave from the Hospital. The police contacted Mr. Capano and advised him to return to CAMH, failing which they would seek him out and escort him back. Mr. Capano returned on his own.
On March 11 Dr. LeBlanc issued a fresh application for psychiatric assessment (Form 1) and served it on Mr. Capano. This was followed by a Form 3 Certificate of Involuntary Admission. Counsel for Mr. Capano then brought an application for a writ of habeas corpus.
The application was heard by Justice Brown of the Ontario Superior Court of Justice. He considered the circumstances in which Mr. Capano was returned to the hospital and confirmed that the Form 9 Order for Return was not proper. Although section 48(5) of the Mental Health Act provides that where an appeal is “taken” from a decision of the Board revoking a Certificate of Involuntary Admission the certificate is extended for a period of 3 clear days, in this case the appeal could not be said to have been “taken”. Although there is no definition of “taken” in the Mental Health Act, the Rules of Civil Procedure provide that an appeal is “commenced” by serving a Notice of Appeal. The Court of Appeal therefore held that the Mental Health Act should be read in that way and that an appeal should be deemed to be “taken” when a party is served with a Notice of Appeal. In this case Mr. Capano had not been served with a Notice of Appeal before he left the hospital and the certificate had therefore not been extended and he was free to leave.
Nevertheless, the judge found that the physicians had not acted in bad faith and that there was nothing to prevent a new Form 1 being issued when Mr. Capano returned to the hospital.
The judge considered the submissions of counsel for CAMH to the effect that habeas corpus does not lie where the legislator has put in place a “complete, comprehensive and expert procedure for review of an administrative decision”. In this case the provisions of the Mental Health Act and the Health Care Consent Act, 1996 constituted such a complete, comprehensive and expert procedure for the review of the decision to detain Mr. Capano on a Certificate of Involuntary Admission. Mr. Capano could have applied to the CCB for a review of the Certificate of Involuntary Admission issued on March 11 which he had so far declined to do. The application for habeas corpus was dismissed.
Capano v. CAMH, 2010 ONSC 1687 (CanLII)