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.

Link to Decision

Radostina Pavlova

Tony Drake

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