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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Remedies for denial of rights

Wednesday, September 13, 2017 @ 8:50 AM  


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Appeal by ES from a Superior Court of Justice decision that upheld a Consent and Capacity Board decision determining that the Board did not have jurisdiction to grant the appellant a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms (Charter). The appellant had been admitted to the Centre for Addiction and Mental Health (CAMH) out of concern for the deterioration of her physical health and mental state, on the basis of a Form 1 application for psychiatric assessment. A Form 3 certificate of involuntary admission was issued by a psychiatrist, which the appellant then applied to the Consent and Capacity Board (Board) to review. The Board confirmed her incapacity to consent to treatment and her involuntary status. The appellant refused prescribed medication, at which point she was forcibly injected. She then applied to the Board to review her involuntary status and claimed the injection was unlawful. She alleged the medication was beyond the scope of the substitute consent which had been provided by the Public Guardian and Trustee. In a notice of constitutional question, the appellant asked the Board to consider whether it had jurisdiction to determine that the injection was unlawful and a violation of her s. 7 Charter rights; and if it was, whether the Board had jurisdiction to grant a remedy under s. 24(1) of the Charter, namely the rescission of her certificate. The Board confirmed the appellant’s involuntary status, did not make a finding as to whether the injection was lawful or made without consent and found it did not have the power to decide questions of law and, even if it did, it would not grant the remedy the appellant sought. The Superior Court judge to which the appellant appealed agreed with the Board and found there was no nexus between the injection and the finding of involuntary status. At issue on appeal was whether the Board had the jurisdiction to grant remedies under s. 24(1) of the Charter.

HELD: Appeal dismissed. The Board was not a court of competent jurisdiction under s. 24(1) of the Charter. The appeal was determined to be moot because the certificate had expired and the appellant was no longer detained at CAMH. The Attorney General conceded in oral argument that the Board had jurisdiction to decide questions of law. However, it was clearly demonstrated that the legislature intended to exclude s. 24(1) Charter jurisdiction from the Board. This conclusion was reached in light of the fact that under s. 70.1(1) of the Health Care Consent Act, the legislature had precluded the Board from finding laws unconstitutional pursuant to s. 52(1) of the Constitution Act, 1982. This conclusion was also supported by several other factors, including the following: the strict timelines under which the Board operated; the limited dispositions available to the Board; the composition and expertise of the Board; the provisions for the appeal of the Board’s decisions; and the fact that, in making its decisions, the Board could and did take Charter rights into account.

E.S. v. Joannou, [2017] O.J. No. 4299, Ontario Court of Appeal, P.S. Rouleau, S.E. Pepall and L.B. Roberts JJ.A., August 17, 2017. Digest No. TLD-Sept112017005