On appeal from the judgment of the Court of Appeal for Ontario, 2012 ONCA 342, 111 O.R. (3d) 19. 

C was charged with sexual assault. When he appeared in court, he was in a psychotic state and was declared unfit to stand trial. Crown counsel recommended a treatment order. The Crown stated that a bed would be available in a facility at one hospital six days after the hearing. The hearing judge issued a “forthwith” treatment order, specifying C be treated at a second hospital or its “designate” (preferably the facility at the first hospital). Court services delivered C to the first hospital and left him in a hallway. The hospitals appealed this decision. The Court of Appeal held that the hearing judge erred by acting on the basis that the consent requirement of the Criminal Code provision relating to treatment had been satisfied. The Court of Appeal also determined that the applicable provisions of the Criminal Code (ss. 672.58 and 672.62(1) (a)) engage the rights to liberty and security of the person guaranteed under s. 7 of the Charter, but do not violate the principles of fundamental justice. 

HELD (9:0): that the appeal be dismissed. 

Reasons for judgment by Rothstein and Cromwell JJ.:

Consent is required for the disposition order in its entirety, not simply to the treatment aspect of it. A court may not make a disposition order directing that treatment begin immediately if the hospital or treating physician does not consent to that disposition unless the situation is a rare case in which a delay in treatment would breach the accused’s rights under theCanadian Charter of Rights and Freedoms and an order for immediate treatment is an appropriate and just remedy for that breach. 

The hospital or person in charge of treatment must consent to all the terms of a disposition ordering treatment and, if there is no consent, the order cannot be made. The starting point is the text of the provisions in their grammatical and ordinary sense according to the modern principle of statutory interpretation. The Criminal Code provides that no court shall make “a disposition” under s. 672.58 without the consent of the hospital or person in charge of treatment. “Disposition” is a technical term, used throughout Part XX.1. While a disposition ordering treatment may be referred to as a “treatment order” in colloquial language, there is no such thing provided for in the Criminal Code . It is clear that a “disposition” under s. 672.58 necessarily has a temporal aspect both as to its beginning and its ending and may include other conditions that the court considers it appropriate to impose. Thus consent is required to the disposition which the court makes under s. 672.58 , not simply to certain aspects of it. This is supported by the meaning of the word “consent” and the context in which it is used in these provisions. Where the Criminal Code intends to differentiate between consent to treatment and consent to a disposition order, it does so expressly. 

An order under s. 672.58 is extraordinary in that it directs that treatment of an accused be carried out without the accused’s consent and by necessary implication, it authorizes medical personnel to carry out that treatment against the accused’s wishes. The provisions recognize the importance of the treatment provider’s clinical judgment, not only as to the particular treatment but as to the location at which it is to be carried out. This broad understanding of the scope of the required consent is reinforced by the practical realities of providing involuntary treatment to potentially dangerous individuals. The timing of a treatment order for an accused who has been found unfit to stand trial must be an element of the hospital’s consent because, from the hospital’s perspective, the time at which treatment is to be provided is inextricably linked to the hospital’s ability to provide treatment safely and effectively. The ability of the hospital to administer the suitable treatment is inextricably linked to whether it has the facilities and personnel available to do so. Timing is therefore an essential element of suitability and not distinct from it. Consent under s. 672.62(1) of the Code must therefore include timing. 

The consent requirement does not deprive the accused of procedural fairness and is not unconstitutionally vague or arbitrary. Any potential violation of s. 7 rights would result from the exercise of the hospital’s discretion to withhold consent in a particular case, and is not inherent in the section itself. No such breach was established in this case. That said, a judge proposing to make a disposition is entitled to consider, in an appropriate case, whether a refusal of consent will have the effect of unconstitutionally limiting the accused’s rights to life, liberty or security of the person in a fashion that does not accord with the principles of fundamental justice. If so persuaded, the judge would be entitled to consider whether ordering an immediate admission would constitute an appropriate and just remedy for that breach. 

Concurring reasons by Karakatsanis J.:

The treatment order regime in Part XX.1 of the Criminal Code  is intended to bring mentally ill accused persons to the cognitive threshold required to proceed to trial.  A court’s discretion under s. 672.58  to order treatment to render an individual fit for trial is subject to stringent safeguards and timelines.  Given the potential for involuntary medical treatment, one such safeguard is the requirement for hospital consent set out in s. 672.62(1) (a).  However, when the consent requirement is read in its proper statutory context, it is clear that hospital consent is not required to all the terms and conditions of the treatment order.  The hospital’s consent is required only to the treatment itself.  Bed shortages and patient wait lists do not permit a hospital to refuse, or defer, consent.  Consent may be withheld only for medical reasons and cannot be withheld on the basis of efficient management of hospital resources. 

Treatment orders seek to render the accused fit to stand trial, in order to protect the rights to a timely trial and procedural fairness, as well as to safeguard the public interest in accused persons standing trial.  They also serve to ensure that the accused’s liberty is minimally impaired.  While the medical and legal interests of accused persons are both at stake, the ultimate purpose of treatment orders is to protect the legal interests of the accused.

Interpreting the provisions in light of (1) the purposes of Part XX.1, the treatment order regime and the consent requirement, (2) the scheme of strict judicial control and oversight with strict timelines, and (3) the appeal and automatic stay provisions, the requirement for hospital consent relates only to a hospital’s willingness to deliver a particular treatment.  Requiring hospital consent to all terms of a treatment “disposition” would effectively give them a broad veto over whether a treatment order could be issued, without regard to the accused’s legal interests.  If hospitals may refuse consent, or dictate the timing of a treatment order, for any reason, including its internal operations and wait lists, it would be a significant derogation from Part XX.1’s comprehensive scheme of judicial controls and tight timelines.  Only judges will be able to assess the risks that would flow from failing to immediately treat an unfit accused because many of the greatest dangers will result not from the “medical urgency” of this treatment as seen by hospitals, but rather from the risks that such an accused would face in jail.  Furthermore, the automatic stay of a treatment order upon appeal by the institution would be meaningless if the treatment order could not be issued absent hospital consent to all its terms and conditions.  Rather, the scheme provides a stay and contemplates a hospital appeal precisely because certain “conditions” of the treatment order ― including the timing ― are decided by the court. 

Thus while bed shortages are not a basis for the hospital to refuse consent, they are part of the circumstances in which the judge exercises her discretion in deciding the start date of a treatment order.  If the hospital is concerned about bed unavailability, or its ability to safely carry out the treatment immediately, the discussion about triage can take place before the judge. In setting the start date for treatment, the judge will consider bed shortages, but she does so along with the liberty, security and procedural fairness interests of the accused, as well as assessing the impact on the accused of waiting in jail and the delays to the trial.  If the court attaches what the hospital considers to be unreasonable conditions to a treatment order, the hospital may exercise its statutory right of appeal, and benefit from the automatic stay.

The Court of Appeal was correct in deciding that the “forthwith” order in this case should not have been issued; however, this is not because the trial judge lacked jurisdiction to issue a treatment order.  Rather, the hearing judge’s decision regarding the timing of the treatment order was not reasonable. 

Neutral citation:  2014 SCC 60.  No. 34960.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14376/index.do