Centre for Addiction and Mental Health v. Ontario, 2012 ONCA 342

In Centre for Addiction and Mental Health v. Ontario, the ONCA considered the interpretation of ‘consent’ in the context of s. 672.62 of the Criminal Code, which provides that – where an accused has been found unfit to stand trial and has been ordered to undergo treatment according to s. 672.58 – the consent of the person in charge of the hospital in question is required. Justice Blair overturned the hearing judge on the question of whether the consent requirement had been met in the circumstances – it had not – and further considered the constitutionality of s. 672.62, an issue before the court for the first time on appeal. Blair J.A. held that the s. 672.62 requirement complies with society’s notions of procedural fairness and is not unconstitutionally vague or arbitrary.

Mr. Brian Conception, accused of sexual assault, was found mentally unfit to stand trial. Justice Mary Hogan of the Toronto Mental Disorder Court issued a treatment order requiring Mr. Conception to submit “forthwith” to 60-days’ anti-psychotic treatment at Oak Ridge, a facility affiliated with the Centre for Addiction and Mental Health (CAMH), notwithstanding the hospital’s declared inability to accommodate him until six days later. CAMH appealed the decision, arguing it had not given the requisite consent.  

The decision clarifies the law on what Blair J.A. called “a recurring theme” in Ontario courts: the tension between judges’ desire to avoid interim jail time for mentally unfit accused on their way treatment, and the hospitals’ refusal to give consent due to bed shortages. Recognizing the hearing judge’s legitimate exasperation with a system suffering a scarcity of resources, Blair J.A. allowed the appeal. He accepted the hospital authorities’ power to determine priority of treatment in an environment where, among those patients waiting for a bed, there might well be others like Mr. Conception. Noting that “[s. 672.58] orders are… not intended to be… for the medical benefit of the unfit accused in the broad sense”, Blair J.A. held that the s. 672.62 consent requirement does not offend principles of fundamental justice. The decision makes the point that policy decisions concerning the allocation of psychiatric hospital resources are beyond the competence of the courts.

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Radostina Pavlova

Tony Drake

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R v Pham, 2012 ABCA 203

In this case, the Alberta Court of Appeal considered whether minor variations in a sentence should be granted for convicted persons with a prior criminal record where the accused may be subject to proceedings under the Immigration and Refugee Protection Act  (“IRPA”).  The Court held that where persons have a prior criminal record, minor variations of a sentence due to considerations under the IRPA do not apply.

In this case, the appellant had been earlier convicted of two drug offences. He was found guilty of unlawfully producing and possessing marijuana for the purposes of trafficking and was sentenced to a prison term lasting two years. He appealed on the basis that a sentence of two years had the unintended consequence of losing his right to appeal a deportation order under the IRPA and asked for a sentence variation to two years less a day. The prevailing practice has been to reduce the sentence of an appellant in cases where (1) the requested reduction is minimal and therefore will not render the sentence unfit, and (2) maintaining the original sentence carries with it unintended or collateral consequences. This approach has been fairly consistent across the country.

The Alberta Court of Appeal held that even minor variations should not be granted in cases where the appellant has a previous criminal record. The majority states, “[I]t would be a strange and unfortunate legal system wherein a non-citizen could expect to receive a lesser sentence than a citizen for the same crime. No such distinction should be countenanced.” In dissent, Justice Martin would have allowed the appeal based on the Crown's willingness to concede to a sentence of two years less a day (based on the prevailing practice).

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Brandon Walker

Mary Phan

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Association of Justice Counsel v. Attorney General of Canada, 2012 ONCA 530

The Ontario Court of Appeal considered whether the Expenditure Restraint Act ("ERA") infringed on the Association of Justice Counsel’s (“AJC”) s.2(d) Charter rights. This is the first case under the ERA to reach a Court of Appeal.  The Court of Appeal held that AJC had failed to show that the ERA infringed on their s. 2(d) right to engage in a meaningful process of collective bargaining.

The AJC alleged that the ERA rendered their right to collectively bargain on salary under s. 2(d) of the Charter with the Treasury Board Secretariat ("TBS") useless between the years of 2006 - 2011. The application judge found infringement of the AJC’s s.2(d) rights but upheld the ERA under s.1 of the Charter. The Attorney General appealed the application judge’s holding that the ERA infringed s.2(d), and the AJC cross-appealed that the provisions were justified under s.1. The court applied the "effectively impossible" test outlined in Fraser, which states that legislation violates s. 2(d) if it renders the pursuit of collective bargaining goals "effectively impossible." The court found that AJC's claim did not satisfy the "effectively impossible" test. Relying on Fraser, the court held that s. 2(d) guarantees a process of collective bargaining but not necessarily a result. Further, as stated in Fraser, s. 2(d) only protects the right to collective bargaining in the minimal sense of good faith. Applying the Fraser test, the court found that the AJC had engaged in a meaningful process of collective bargaining over a two-year period with TBS prior to the enactment of the ERA. During that process, the Court found that TBS had considered the demands of AJC in good faith. Therefore, the court held that AJC had failed to show that the ERA infringed on their s. 2(d) right to engage in a meaningful process of collective bargaining.

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Haran Viswanathan

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