COURT OF APPEAL FOR ONTARIO

CITATION: P.S. v.
    Ontario, 2014 ONCA 900

DATE: 20141223

DOCKET: C57256

Weiler, Laskin, Sharpe, Gillese and van Rensburg
    JJ.A.

IN THE MATTER
    OF the
Habeas Corpus Act
, R.S.O. 1990, c. H.1

AND IN THE
    MATTER OF the
Canadian Charter of Rights and Freedoms
, Part 1 of the
Constitution
    Act, 1982
, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
    c.11

BETWEEN

P.S.

Applicant

(Appellant)

and

Her Majesty the Queen in Right of Ontario
,

Centre
    for Addiction and Mental Health,

Royal
    Ottawa Health Care Group,

St.
    Josephs Health Care, London,

Attorney General for Ontario
and

Waypoint Centre for Mental Health Care

Respondents

(Respondents in
    Appeal)

Mercedes Perez and Karen A. Steward, for the appellant

Susan Adam Metzler and Kathryn M. Frelick, for Waypoint
    Centre for Mental Health Care

Hart Schwartz and Joshua Hunter, for Her Majesty the
    Queen in Right of Ontario and the Attorney General for Ontario

Karen R. Spector, for the intervenor, Mental Health
    Legal Committee

David S. Morritt and Eric Morgan, for the intervenor,
    Canadian Civil Liberties Association

Heard: September 3, 2014

On appeal from the judgment of Justice John R. McCarthy of
    the Superior Court of Justice dated May 23, 2013, dismissing an application for
habeas corpus
and other relief, with reasons reported at 2013 ONSC
    2970.

Sharpe J.A.:

[1]

This appeal concerns the constitutional validity of the provisions of
    the
Mental Health Act
, R.S.O. 1990, c. M.7 (MHA), providing for
    involuntary committal, as those provisions apply to long-term detainees. The
    appellants involuntary committal began in 1996 on the day he was to be
    released from the penitentiary after serving a sentence for sexual assault. His
    committal has lasted for nineteen years and there is no apparent end in sight.
    The appellant contends that the MHA fails to provide an adequate procedural
    process to protect his right to liberty guaranteed by s. 7 of the
Canadian
    Charter of Rights and Freedoms
.

[2]

This appeal also concerns the appellants claim that he has been denied
    his constitutional right to equality guaranteed by s. 15 of the
Charter.
The appellant is deaf and asserts that he has not received the level of
    interpretation required to meet his treatment, rehabilitative and other needs
    during his nineteen years of confinement.

[3]

For the following reasons, I conclude that the provisions of the MHA
    dealing with involuntary committal violate s. 7 of the
Charter
by
    allowing for indeterminate detention without adequate procedural protection of
    the liberty interests of long-term patients
.
I also conclude that the
    appellant has not been provided with adequate interpretation services and that
    his right to equality, guaranteed under s. 15(1) of the
Charter
,

has
    been violated.

FACTS

(1)

The Appellant

[4]

The appellant, who is referred to as P.S. pursuant to the order of
    Marchand J., dated February 6, 2008, is 56 years old. He suffers from
    pre-lingual deafness, which means he lost his ability to hear before learning
    to speak or understand language. He has limited English language skills and has
    difficulty communicating with others. These communication challenges have given
    rise to problems in relation to his treatment as a long-term involuntary
    patient.

[5]

The appellant had a very difficult childhood. He was the victim of
    physical and sexual abuse at the hands of close relatives. He was placed in a
    succession of foster homes beginning at age three.

[6]

Although the appellant is of normal intelligence and was enrolled in a
    school for deaf children until he was a teenager, he developed only limited
    sign language skills. He communicates using a version of Signed English and has
    some facility with the more commonly-used American Sign Language (ASL). He
    was absent from school for long periods due to behavioural difficulties,
    psychiatric hospitalizations and encounters with police.

[7]

The appellant was convicted of several sexual offences involving
    children in the 1980s. In 1992, he was sentenced to 45 months in prison for
    sexually assaulting a 12-year-old boy in the washroom of a Y.M.C.A. The
    appellant received no therapy or counselling during his prison term.

(2)

The MHA committal
and detention

[8]

In January 1996, a psychiatrist at the Kingston Penitentiary completed a
    Form 1 application for an assessment under s. 15 of the MHA to determine if the
    appellant met the statutory criteria for civil detention. The MHA allows for
    civil detention in a psychiatric facility of individuals who suffer from a
    mental disorder likely to result in serious bodily harm to themselves or to
    others. The day before the expiry of his sentence, the appellant was
    transferred from the Kingston Penitentiary to the Oak Ridge division of
    Penetanguishene Mental Health Centre (PMHC) for an assessment. The attending
    physician found that the appellant met the statutory criteria for involuntary
    detention based on a diagnosis of pedophilia-paraphilia. The appellant has been
    detained at Oak Ridge, a maximum security facility, ever since.

[9]

Since the beginning of his detention, the appellants doctors have
    unanimously determined that while he poses a risk to public safety, he does not
    require detention in a maximum security facility. However, no medium security
    psychiatric hospital in Ontario has been willing to accept him as an inpatient.
    The appellant has had limited access to interpreters throughout his
    nineteen-year confinement.

[10]

In
    December 2008, PMHC was divested from the Province of Ontario and became a
    public hospital corporation. In 2011, PMHC changed its name to Waypoint Centre
    for Mental Health Care (Waypoint). For convenience, I will refer to the
    institution during the entire post-divestment period as Waypoint. The maximum
    security wing where the appellant lives is still called Oak Ridge.

[11]

Pursuant
    to the MHA, the Consent and Capacity Board (CCB) has reviewed the appellants
    detention on a regular basis. The CCB has repeatedly affirmed that the
    appellant continues to meet the criteria for involuntary detention, but does
    not belong in a maximum security facility. The CCB has exhorted his treatment
    team to transfer him to a less secure facility and ensure that he receive
    proper sign language interpretation.

STATUTORY FRAMEWORK

[12]

Involuntary
    detention under the MHA is initiated by a Form 1 application for psychiatric
    assessment. The physician who completes the Form 1 must have reasonable cause
    to believe the patient is suffering from a mental disorder of a nature or
    quality that will likely result in serious bodily harm to the patient or
    another (s. 15(1)). The Form 1 authorizes detention, restraint and examination
    in a psychiatric facility for up to 72 hours (s. 15(5)).

[13]

Following
    the Form 1 assessment, an attending physician can involuntarily admit the
    patient under a Form 3 if the physician is of the opinion that the patient
    continues to meet the statutory criteria for civil committal, and the patient
    is not suitable for admission as an informal or voluntary patient (ss. 20(1),
    (5)).

[14]

A
    Form 3 provides legal authority to detain, restrain, observe and examine the
    patient for not more than two weeks. Prior to the expiry of the Form 3, the
    physician can issue a Form 4 certificate of renewal if the criteria for involuntary
    admission continue to be met. The first Form 4 authorizes detention for one
    additional month. A second Form 4 authorizes detention for an additional two
    months. Subsequent Form 4s authorize detention for an additional three months
    (s. 20(4)).

[15]

A
    physician who completes a Form 3 or Form 4 must promptly give the patient
    written notice of the reasons for the detention, and must inform the patient of
    the right to a review before the CCB and the right to retain and instruct
    counsel without delay (ss. 38(1) and (2)). The physician must also give notice
    to a rights adviser, who is required to meet with the patient to explain the
    significance of the certificate and the right to have it reviewed by the CCB
    (ss. 38(1) and (3)).

[16]

An
    involuntary patient may challenge his or her initial detention, and any
    subsequent renewal, before the CCB (s. 39(1)). On the completion of a fourth
    certificate of renewal, and on the completion of every fourth certificate of
    renewal thereafter, the patient is deemed to have applied for a review if he or
    she has not already done so (s. 39(4)).

[17]

The
    CCB has jurisdiction to make one of two orders following a review of the
    patients involuntary detention: it may confirm the patients status as an
    involuntary patient if it determines that the statutory prerequisites were met
    at the time of the hearing, or it shall rescind the certificate if it
    determines that the statutory prerequisites were not met at the time of the
    hearing (ss. 41(1), (2) and (3)).

[18]

In
    2010, the MHA was amended to grant the CCB an additional power: the CCB may now
    order an involuntary patient to be transferred to another psychiatric facility
    on the application of the patient or of the person in charge of the facility
    where the patient is detained. An application for a transfer may be made after
    the completion of a fourth certificate of renewal and every fourth certificate
    of renewal thereafter (ss. 39.2(1) and (2)). The CCB cannot transfer a patient
    without the patients consent (s. 39.2(9)). The decision to order a transfer is
    based on several criteria which cumulatively amount to a best interests
    assessment (s. 39.2(10)).

THE APPLICATION

[19]

In
    October 2007, after it became apparent that a transfer to a medium security
    facility would not be forthcoming, the appellant brought an application for
habeas
    corpus
and a declaration that PMHC had breached his rights under ss. 7, 9,
    10(a), 12 and 15(1) of the
Charter
. He argued that PMHC failed to
    provide assessment and treatment opportunities appropriate to his needs as a
    deaf individual, which prevented him from making any clinical improvement. The
    appellant claimed that PMHCs conduct effectively condemned him to indefinite
    detention in a prison of silence.

[20]

He
    sought remedies under s. 24(1), including: a new risk assessment performed by a
    clinician experienced in evaluating deaf individuals; an interim order that he
    be provided with ASL interpretation for the purposes of that assessment; and
    subject to the results of that assessment, an order that he be transferred to a
    less secure facility for treatment commensurate with his mental health and
    linguistic needs and directed toward his reintegration into the community. He
    also sought an order that if he remained in a psychiatric facility, he be
    provided with consistent social, recreational, vocational and educational
    opportunities in ASL as well as regular interpretation services to facilitate
    communication with his caregivers.

[21]

In
    addition to naming PMHC in his application, the appellant named the medium
    security facilities that had refused to accept him as an inpatient: St.
    Josephs Health Care, London, the Centre for Addiction and Mental Health
    (CAMH) and the Royal Ottawa Health Care Group.

[22]

In
    February 2008, Marchand J. granted the motion of those hospitals to strike the
    application against them. He held that there was no basis for finding that they
    had participated in depriving the appellant of the rights he claimed under the
Charter
.

[23]

The
    appellant appealed Marchand J.s order to this court. The appeal was heard in
    June 2008 before OConnor A.C.J.O. and Moldaver and MacFarland JJ.A. The appeal
    was allowed on terms agreed to by the parties (the bifurcation order). The
    application was to proceed, first, against the Crown and the Attorney General
    of Ontario (Ontario), through to a determination of whether a
Charter
breach has occurred and a determination of the service and security needs of
    the appellant. Subsequent to this determination, the appellant would notify
    proposed service providers who would then be added to the application on
    consent to address the issue of remedy.

[24]

In
    2011, the appellant filed an Amended Notice of Application seeking a
    declaration that the involuntary detention and review provisions of the MHA
    (specifically, ss. 20(1), 20(3), 20(4), 20(5), 34, 39(1), 41(1), 41(2), and
    41(3)) are inconsistent with ss. 7, 9, 12 and 15(1) of the
Charter
and
    are of no force and effect under s. 52(1) of the
Constitution Act, 1982
.
    These impugned provisions are attached as Appendix A to these reasons.

[25]

The
    appellant argues that the MHA is unconstitutional when applied to long-term
    detainees because it lacks an appropriate review procedure that would ensure their
    liberty is restricted as minimally as possible. This claim rests on the limited
    extent of the CCBs jurisdiction. As I have noted, until 2010, the CCB could
    only affirm or rescind an individuals involuntary status. Since 2010, the CCB
    has had the authority to order a patients transfer to another psychiatric
    facility after the completion of a fourth certificate of renewal, and on the
    completion of every fourth certificate of renewal thereafter. However, the CCB
    still lacks the authority to impose conditions on a patients detention in
    order to ensure that the patients residual liberty interest and rehabilitative
    prospects are protected.

[26]

On
    the application, the appellant led evidence, accepted by Ontario, of the most
    recent provincial statistics on involuntary detention under the MHA, dating
    from 2009-2010. Those statistics indicate that 34% of patients involuntarily
    committed under the MHA were in hospital for less than a week, 80% for less
    than a month and 98% for less than six months. Using these statistics as a
    point of reference, I consider long-term detention to be periods of detention
    lasting longer than approximately six months.

DECISION OF THE APPLICATION JUDGE

[27]

The
    application judge held that the MHA contains a complete code for reviewing
    decisions made under that statute and therefore determined that the court
    should decline to exercise its
habeas corpus
jurisdiction.

[28]

He
    held that the
Charter
applies to Waypoint, but only to the extent that
    it is exercising its duties and obligations under the MHA. In the application
    judges view, this meant that, by virtue of s. 15(1) of the
Charter
, the
    appellant has a right to deaf-appropriate services for significant therapeutic
    services and interaction, but not for other purposes (at para. 32).

[29]

The
    application judge concluded, at para. 43, that this courts decision in
Starnaman
    v. Penetanguishene Mental Health Centre
(1995), 24 O.R. (3d) 701,
    conclusively determined that the MHA does not offend ss. 7, 9, or 12 of the
Charter
and that the MHA complies completely with the procedural component of the
    principles of fundamental justice.

He found that the appellants
    liberty was curtailed with just cause: the appellant was initially admitted
    as an involuntary patient pursuant to a constitutionally valid scheme, and
    subsequent renewals of his involuntary status occurred by operation of the same
    valid legislative scheme.

[30]

The
    application judge found that the appellant did not suffer a s. 7 infringement
    prior to the 2010 amendments. While Oak Ridge, a maximum security facility, was
    excessive for his security needs, the appellant enjoyed freedoms and
    privileges that were uncommon in a maximum security facility, many of which
    were tailored to his individual circumstances, including his own security needs
    and unique disability (at para. 69).

[31]

Though
    Oak Ridge may not have been the ideal setting for the appellant because of
    its security level and the limited deaf-appropriate services available, the
    application judge concluded that it provided a safe and secure environment with
    some ASL support. The appellant enjoyed access to recreational, vocational and
    social activities, as well as supervised community access: At worst, he was in
    an inappropriate facility for his particular needs and given his security risk
    (at para. 72). The application judge further found that the appellant may
    actually enjoy a higher degree of liberty at Oak Ridge than he would receive at
    a medium security facility.

[32]

The
    application judge rejected the appellants contention that his detention in a
    maximum security facility after 2010 continued to violate his rights given the
    new transfer provision in the MHA.

[33]

With
    respect to the appellants claim that he was denied deaf-appropriate services,
    the application judge found that there was no evidence contradicting the
    diagnoses of pedophilia or psychosis and no clinical opinion that the diagnoses
    would have been different had deaf-appropriate services accompanied the
    treatment or the assessments. It followed, held the application judge, that
    there was no evidence that the failure to accommodate the appellants
    disability prolonged his detention contrary to s. 7 of the
Charter
.

[34]

Similarly,
    there was no evidence that his needs were neglected as a result of complacency
    or budgetary considerations, or that the appellant has simply languished at Oak
    Ridge. On the contrary, the application judge found that the evidentiary record
    was replete with treatments and opportunities afforded to the appellant,
    often complemented with deaf-appropriate services (at para. 76).

[35]

The
    application judge rejected the appellants contention that he had been a victim
    of warehousing and that his time at Oak Ridge had amounted to a prison of
    silence.

[36]

The
    application judge also dismissed the appellants claims under ss. 9 and 12 of
    the
Charter
. The appellant was not arbitrarily detained and his
    treatment did not constitute cruel and unusual punishment.

[37]

As
    for the s. 15(1) claim, the application judge stated that the appellants
    communication needs were never straightforward and effective communication was
    always a challenge. However, the application judge did find that PMHC infringed
    the appellants s. 15(1) rights by not providing him with effective
    communication during a number of specific significant therapeutic interactions.
    He added that the s. 15(1) infringement was not intentional and did not
    arise out of bad faith or neglect (at para. 100).

[38]

The
    application judge found that the violations of the appellants equality rights
    all occurred before Oak Ridge was divested from the province to Waypoint in
    2008. As he found only historical breaches of the appellants
Charter
rights, the application judge found it unnecessary to determine the appellants
    service and security needs as contemplated by the bifurcation order.

FRESH EVIDENCE MOTION

[39]

The
    appellant moves to introduce as fresh evidence the August 6, 2013 decision and
    the August 9, 2013 reasons of the CCB dismissing his application to review his
    status on the ground that he is no longer an involuntary patient. The
    appellant also seeks to introduce correspondence relating to the CCB decision.

[40]

The
    background to the fresh evidence motion is that in July 2012, Waypoint allowed
    the appellants Form 4 to lapse and he thereby became a voluntary patient.
    However, according to the appellant, he was treated as voluntary but
    certifiable, so that if he tried to leave Oak Ridge, he would be immediately
    certified as an involuntary patient. The appellant argues that fresh evidence
    should be admitted to give the court a complete account of his situation at Oak
    Ridge.

[41]

Ontario
    resists the fresh evidence motion on the ground that the appellant explicitly
    agreed to proceed before the application judge on the basis that he was an
    involuntary patient. When the issue of his current status was raised at first
    instance, the appellants counsel declined the application judges offer of an
    adjournment to amend the Notice of Application to pursue that issue.

ISSUES

[42]

This
    appeal raises the following issues:

1.

Should the fresh evidence be
    admitted?

2.

Did the application judge err in
    rejecting the appellants claim that the involuntary detention provisions of
    the MHA violate the constitutional standard mandated by s. 7 of the
Charter
when applied to long-term detainees?

3.

Did the application judge err with
    respect to the appellants claim that his s. 15 rights were violated?

4.

Did the application judge err in
    declining to exercise his
habeas corpus
jurisdiction?

5.

Did the application judge
    misinterpret this courts 2008 bifurcation order by failing to determine the
    appellants service and security needs?

6.

If the appellants
Charter
rights were violated, what is the appropriate remedy?

[43]

I
    note that while the appellant asserted claims under ss. 9, 10(a) and 12 of the
Charter
,
    the focus of this appeal was on ss. 7 and 15. As I am able to dispose of the
    appeal on the basis of ss. 7 and 15, I do not find it necessary to consider ss.
    9, 10(a) or 12.

[44]

The
    Canadian Civil Liberties Association, intervenor, essentially supports the
    position of the appellant.

[45]

The
    other intervenor, the Mental Health Legal Committee, contends that the CCBs
    inability to supervise the terms of a persons involuntary detention creates a
    legislative gap when the scheme is applied to long-term detainees. The Mental
    Health Legal Committee submits that this problem can be remedied either by
    striking down the impugned provisions under s. 52(1) of the
Constitution
    Act, 1982
or by conferring s. 24(1) jurisdiction on the CCB in accordance
    with
R. v. Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765.

ANALYSIS

Issue 1: Should the fresh evidence be
    admitted?

[46]

With
    one qualification, I would dismiss the fresh evidence motion. As I have noted,
    the fresh evidence concerns the current status of the appellant as a voluntary
    patient, his last certification having lapsed in July 2012. The appellant seeks
    to adduce the fresh evidence so that the scope of this appeal can be expanded
    to include consideration of his voluntary status. The main relevance of this
    appears to be that as a voluntary patient, the appellant cannot resort to the
    power conferred on the CCB in 2010 to order his transfer to another psychiatric
    facility. The appellant contends that his current status puts him in legal
    limbo. As a voluntary patient, he cannot apply to the CCB for a review of his
    situation, but if he were to attempt to leave Waypoint he would be immediately
    certified as an involuntary patient.

[47]

The
    parties jointly submitted an Agreed Statement of Facts which stipulates, for
    the purposes of this application [the appellant] should be treated as if he
    were currently an involuntary patient. When the appellants counsel raised the
    issue of voluntary but certifiable for the first time in closing submissions,
    the application judge indicated that the issue was not identified in the Notice
    of Application or in the record. He offered the appellant an adjournment so
    that counsel could amend the Notice of Application and lead the further
    evidence necessary for the application judge to consider the issue. Counsel
    declined that offer and agreed to proceed on the basis of the Agreed Statement
    of Facts.

[48]

I
    agree with Ontarios submission that the appellant should not be permitted to
    raise this new issue on appeal. An appellate court will only entertain a fresh
    issue on appeal where the opposing party would not be prejudiced, where the
    interests of justice require the new argument to be heard and where the court
    would have a sufficient evidentiary record to entertain the issue: see Donald
    J.M. Brown, Q.C.,
Civil Appeals
, loose-leaf (April 2014) (Toronto: Carswell,
    2014), Vol. 2, at para. 10:4210;
R. v. Gibbons
, 2010 ONCA 77, 100 O.R.
    (3d) 248;
R. v. Roach
, 2009 ONCA 156, 246 O.A.C. 96.

[49]

In
    my view, the fresh evidence application must be dismissed on the ground that
    this issue was explicitly raised before the application judge and the appellant
    made a clear and unequivocal decision to proceed on the basis that he was an
    involuntary patient. It would be unfair to the respondents to introduce on
    appeal a new issue that was expressly abandoned at first instance with the
    result that the parties introduced no corresponding evidence or argument. This
    court would lack the necessary evidentiary foundation to consider the issue.
    Finally, given my determination of the issues that are properly before the
    court, the interests of justice do not require that the new argument be heard.

[50]

While
    I would not accept the appellants invitation to deal with this new issue on
    appeal, I consider it appropriate for this court to take note of the CCBs
    decision dated August 9, 2013. The CCBs decision is a matter of record between
    the parties and while I would not allow the appellant to add any new issue as a
    consequence of that decision, it is in my view proper for this court to have a
    full account of the CCBs treatment of the appellant.

Issue 2: Did
    the application judge err in rejecting the appellants claim that the
    involuntary detention provisions of the MHA violate the constitutional standard
    mandated by s. 7 of the
Charter
when applied to long-term detainees?

(1)

Decisions of the CCB

[51]

I
    begin my analysis of the s. 7 issue with a review of the CCB decisions
    regarding the appellants committal. These decisions also bear upon the s.
    15(1) issue. The CCB has considered the appellants case on a regular basis. Its
    decisions provide a more or less contemporaneous chronicle of his situation at
    Oak Ridge. The findings and conclusions of the CCB were made following
    contested hearings at which both the appellant and the hospital were present
    and able to lead evidence and make argument. In my view, they provide
    compelling evidence of the procedural inadequacy of the MHA, particularly on
    the facts of this case. The CCB decisions are also relevant to the s. 15(1)
    claim as they chronicle the problems encountered by the appellant in accessing
    appropriate interpretation services.

[52]

The
    CCB consistently found that the appellant met the test for certification under
    the MHA. He suffers from a mental disorder and unless detained in a psychiatric
    facility, the disorder would likely result in serious bodily harm to another
    person. It also appears from the CCB decisions that the appellant has been a
    difficult patient to treat. He has at times refused treatment and the services
    of some interpreters. He has revealed a lack of understanding of his disorder
    and the wrongful nature of his conduct. On the other hand, it is also clear
    from the CCBs decisions that these difficulties were to a significant degree
    the product of his inability to communicate without sign language
    interpretation. As observed by the CCB, he was not provided with the signing
    assistance he needed for significant periods of time.

[53]

The
    other consistent themes running through the CCBs decisions are that the
    appellants therapeutic and rehabilitative needs are not being met, he does not
    require a maximum security facility and it would be in his interest to be
    transferred to another facility or even into a community setting. However, the
    CCB continuously recognized that its jurisdiction was limited to the issue of
    whether or not the appellant was certifiable, and that accordingly it had no
    authority to order that the appellant be detained under less restrictive
    circumstances.

[54]

In
    a decision dated April 24, 1996, the CCB accepted the evidence of Dr. Cameron,
    who had recertified the appellant as an involuntary patient, that the appellant
    does not require the maximum security of this particular facility. The CCB
    also noted that Dr. Cameron was prepared to recommend transferring the
    appellant to another facility and commented:

[I]t might well be in the best interest of all concerned that
    the patient be transferred to the St. Thomas Psychiatric Hospital while
    remaining under certificate under the
Mental Health Act
, provided that
    all services needed regarding the patient, in particular with respect to his
    deafness, are in place.

[55]

However,
    the CCB added that it had no jurisdiction to order a transfer of any persons
    to any facilities and that its mandate with respect to certification is
    solely to look at whether the person remains certifiable under the
Mental Health
    Act.

[56]

In
    a decision dated August 19, 1996, the CCB again highlighted Dr. Camerons
    opinion that the appellant did not require maximum security and could be better
    dealt with at St. Thomas. However, that hospital had not accepted him. The CCB
    observed that the appellant had been gated on the very last day of his penitentiary
    sentence, and that this in itself is a disturbing situation for anyone
    anticipating release to the community, and in particular for someone who is
    deaf and does not have the advantage of someone signing appropriately for him
    so that he might attempt to understand what has happened to him. The CCB
    concluded that the appellant met the test for certification but added:

The Board members also accept the Doctors evidence that the patient
    does not require detention in a facility such as [Oak Ridge], and the Board
    members would recommend transfer of this particular individual to a medium
    secure facility if the treatment is available in such a hospital. Not only
    would this assist with later placement in the community, but also would be more
    cost-effective than a maximum secure setting for an individual who doesnt need
    it. It may in fact compensate for the extra costs which will be required in
    order to provide this particular individual with testing and therapy which is
    meaningful that is with the assistance of those who can communicate with the
    patient.

[57]

The
    CCB emphasized the need for qualified signers to assist with conducting
    assessments and providing treatment. The CCB added that it found the assistance
    of the interpreter at the hearing most helpful and observed, perhaps if
    translators had been made available to the patient at other points during his
    life, he would not be labeled as brain damaged or exhibiting psychotic
    symptoms. Despite these observations, a comprehensive assessment of the
    appellant in the presence of ASL interpreters did not occur until 2008, more
    than twelve years later.

[58]

In
    October 1998, the CCB highlighted Dr. Hectors testimony that the patient
    continues to have no insight into his illness or into the fact that it is
    against the law to have sex with children or adolescents and
the situation
    is complicated by the fact that there is a communication problem at this
    facility
,
there being no monies available for a signer and no volunteers
    in the area capable and/or available to provide such assistance
 (emphasis
    added).

[59]

In
    its February 17, 1999 decision, the CCB again upheld the appellants
    certification but made several observations as to the inadequacy of the circumstances
    of the appellants detention at PMHC. The CCB noted:

Dr. Hector indicated that he believed the patient would be
    willing to participate in a treatment program, that he would be a good
    candidate for such a program, however there was no hope of the patient getting
    any of the required treatment at Oak Ridge.

[60]

The
    CCB observed that no attempt had been made to employ the services of an
    interpreter because those services were deemed to be too expensive and that no
    treatment was currently being offered and there was no immediate prospect of
    any treatment or program being offered at Oak Ridge. The CCB noted that St.
    Thomas continued to refuse to accept the appellant but added, clearly the type
    of treatment, which the patient would benefit from, was readily available at
    other Psychiatric Hospitals in Ontario and it was not available at Oak Ridge.

[61]

The
    CCB acknowledged that the appellant had been held for more than three years at
    Oak Ridge and that the certifying doctor candidly concedes that the patient is
    simply being warehoused. The certifying doctor further stated that the Oak
    Ridge facility was totally inappropriate for a patient such as [the appellant]
    because the facility did not have any reintegration services, which could even
    begin to make arrangements for the release of a patient into a structured
    facility in the community. Once again, the CCB noted the limits on its
    jurisdiction, but expressed serious concerns regarding the appellants
    situation and PMHCs failure to provide him with adequate signing assistance.

[62]

One
    member of the CCB would have rescinded the certificate because the certifying
    doctor had not personally examined the appellant and had not met the burden of
    proving that his antisocial behavior was the result of mental disorder. The
    dissenting member added:

This patient has in effect been given a life sentence which
    is not permitted by the
Mental Health Act
. No proper consideration has
    been given to whether or not it is necessary to keep the patient in the custody
    of a psychiatric facility. Oak Ridge has not made any attempt at preparing a
    discharge plan at any time since the patient was admitted three years ago.

[63]

While
    the majority upheld the certificate, it found that the likelihood the appellant
    would cause serious bodily harm to children unless he remained in the custody
    of a psychiatric facility was:

[A]s a result of the failure by Oak Ridge
to:

i.

effectively use an interpreter;

ii.

reassess;

iii.

implement a treatment and/or exchange program;

iv.

formulate a discharge plan [Emphasis added.]

[64]

In
    its February 29, 2000 decision, the CCB affirmed the certification but
    concluded with the observation that the appellant does not require maximum
    secure surroundings and that his treatment needs could be met in a less secure
    facility. The CCB found it disturbing that due to whatever administrative
    difficulties there are, he remains at this facility and commented that the
    administrative transferring and programme issues need to be addressed, not just
    for this particular patient but for others in a similar situation.

[65]

In
    a decision dated September 12, 2002, the CCB confirmed the appellants
    involuntary status. It noted that the appellant had difficulty following the
    interpreters at the hearing and suggested that a native (i.e. deaf) interpreter
    might be of assistance.

[66]

In
    its January 8, 2003 decision, the CCB observed that the appellant seemed more
    willing to participate in treatment programs than he had in the past. It is
    significant that this change in attitude appears to have resulted from the
    presence of a native interpreter at the hearing. The appellants behavior at
    the facility was described as exemplary and the CCB once again expressed hope
    that the appellant would be transferred to a less secure setting, as he does
    not require maximum security nor does it appear he ever required same.

[67]

In
    a decision dated November 21, 2003, the Board noted that the appellant had not
    received any therapeutic programming to date and observed that this did not
    appear to be due to lack of effort on the part of the staff and the
    institution, but rather a lack of personnel with the proper communication
    skills to cope with a person who is disadvantaged due to a hearing and speech
    impediment. The CCB observed that the problem appeared to have been rectified
    by recent involvement of a deaf interpreter, and that Dr. Fleming had reported
    a turning point. The CCB concluded that the appellants involuntary status
    should be revoked. Although he continued to pose a risk to society, the CCB
    found that he could be trusted to remain in the hospital to receive treatment.
    The appellant failed to do so and was recertified.

[68]

Further
    progress was observed in the CCBs March 7, 2006 decision. The appellant was
    accepting antipsychotic medication as well as medication to reduce his sex
    drive, although he continued to lack insight into the wrongfulness of his
    interest in sex with children. His treating physician indicated that she was
    attempting to have him transferred to St. Thomas where facilities better suited
    to his needs were available. The CCB concluded that the test for certification
    was made out but again urged that efforts be made to transfer him to a more
    suitable setting, particularly in light of the treating physicians opinion
    that if transferred and given the appropriate treatment, there was a real
    expectation that [the appellant] would eventually be discharged from that
    psychiatric facility.

[69]

In
    its January 10, 2007 decision, the CCB observed that a plan was in place,
    supported by the appellant and his treatment team, to transfer him to a less
    secure hospital with the hope of an eventual transfer to the community on a
    Community Treatment Order. The CCB concluded that the test for certification
    was met, but once again observed that the appellant did not require a maximum
    security facility, though he continued to lack insight into his condition and
    the inappropriateness of his sexual preferences. The CCB considered exercising
    its discretionary power to rescind the certificate even where the prerequisites
    for certification had been met but declined to do so. It commented on the
    efforts being made to place the appellant at CAMH or the Royal Ottawa Hospital
    and encouraged those institutions to seriously consider accepting this
    individual  who cannot be appropriately directly re-integrated into the
    community from a maximum facility and most importantly does not require a
    maximum secure facility for others safety.

[70]

In
    a decision dated August 8, 2008, the CCB stated that it was not pleased that
    no less secure facility was willing to accept [the appellant] to date. Several
    months later, in a decision dated December 7, 2008, the CCB noted its opinion
    that the appellant had waited a very long time to be transferred to a less
    secure facility and agreed that it was time to consider fresh options for
    [the appellant].

[71]

In
    its August 24, 2009 and April 29, 2010 decisions, the CCB again confirmed the
    appellants involuntary status, again observed progress on the part of the
    appellant, but again noted that satisfactory arrangements were not in place to
    permit his transfer. At the 2009 hearing, Dr. Ramshaw, the certifying
    psychiatrist, testified that the appellant did not require maximum security and
    was ready for a community placement, provided an appropriate structure was in
    place to ensure the safety of the public and the appellants well-being.

[72]

In
    2010, Dr. Ramshaw testified that the only barrier to transferring the
    appellant, this time to the Bob Rumball Association for the Deaf (BRAD), was
    funding approval. The CCB observed that amendments to the MHA would soon give
    it the power to order a transfer. While the CCB still lacked the power to order
    a transfer at the date of the April 2010 hearing, and could not have ordered a
    transfer to BRAD since this institution is not a designated psychiatric
    facility under the MHA, it stated: [W]e can endorse [the transfer] without
    reservation.

[73]

The
    issue of a transfer to BRAD was again before the CCB in its decision of
    February 20, 2011. The CCB noted, with considerable regret, that although
    supported by the appellants treating physician, the transfer to BRAD had been
    stymied as it turned out that the [the appellant] had too high an IQ to
    qualify. The CCB agreed with the submission that a transfer to a facility
    with programming for the hearing impaired would start [the appellant] on an
    intensive course in life, not one that occurred only in fits and starts such as
    at Oak Ridge.

[74]

This
    brings me to the final decision of the CCB dated August 9, 2013. The
    appellants status as an involuntary patient lapsed when his certification was
    not renewed in July 2012. The appellant took the position that if he were to
    attempt to leave Waypoint, he would be immediately certified and returned to
    the status of an involuntary patient. Therefore, the appellant submitted that
    the CCB should deal with his application, either as a voluntary or involuntary
    patient. The CCB dismissed the appellants application on the basis that its
    jurisdiction was limited to considering the issue of certification of
    involuntary patients.

(2)

Procedural protection mandated by s. 7
of the
Charter

[75]

Section 7
of
    the
Charter
states:

7. Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the principles
    of fundamental justice.

[76]

As
    the appellant alleges a breach of s. 7, he bears the onus of demonstrating on a
    balance of probabilities that the MHA involuntary committal provisions
    interfere with or limit his right to life, liberty or security of the person,
    and that the interference or limitation is not in accordance with the
    principles of fundamental justice.

[77]

There
    is no question that the appellant has demonstrated an interference with his
    right to liberty. The contentious issue on this appeal is whether the
    deprivation of liberty under the MHA comports with the principles of
    fundamental justice.

[78]

It
    is well established that s. 7 guarantees individuals facing detention the right
    to a fair process. Even where detention is justified for reasons of public
    security or safety, s. 7 mandates procedural protections that provide for a
    fair hearing by an independent and impartial arbiter: see
Charkaoui

v.
    Canada (Citizenship and Immigration)
, 2007 SCC 9, [2007] 1 S.C.R. 350, at
    para. 29;
United States v. Ferras
, 2006 SCC 33, [2006] 2 S.C.R. 77, at
    para. 14. As this court recently stated in
R. v. Kobzar
, 2012 ONCA 326,
    110 O.R. (3d) 671
,
at para. 57,
[t]he state cannot detain people for significant periods of time without
    providing them with a fair procedural process.

[79]

The
    procedural requirements mandated by the principles of fundamental justice
    depend upon the context:
Charkaoui
, at para. 20. In
Suresh

v.
    Canada (Minister of Citizenship and Immigration)
, 2002 SCC 1, [2002] 1
    S.C.R. 3, the Supreme Court affirmed, at para. 118, that [t]he greater the
    effect on the life of the individual by the decision, the greater the need for
    procedural protections to meet the common law duty of fairness and the
    requirements of fundamental justice under s. 7 of the
Charter
. In
Charkaoui
,
    at para. 25, the Supreme Court reiterated its statement in
Dehghani v.
    Canada (Minister of Employment & Immigration)
, [1993] 1 S.C.R. 1053, at
    p. 1077, that factual situations which are closer or analogous to criminal
    proceedings will merit greater vigilance by the courts.

[80]

The
    appellant is being detained in a psychiatric hospital because he suffers from a
    mental disorder that poses a risk to the public. His situation closely
    resembles that faced by those who are detained after being found unfit to stand
    trial or not criminally responsible on account of mental disorder (NCR). This
    brings his involuntary committal into the category of close or analogous to
    criminal proceedings, where greater judicial vigilance is required.

[81]

On
    several occasions the Supreme Court has considered the constitutionality of
Criminal
    Code
provisions dealing with the detention of individuals deemed NCR or
    unfit to stand trial. These cases establish legal principles that are
    applicable to the appellants challenge to the MHA.

[82]

R.
    v. Swain
, [1991] 1 S.C.R. 933, involved a challenge to the long-standing
Criminal
    Code
provision that permitted an insane accused to be detained in the
    place and manner directed until the pleasure of the lieutenant governor of the
    province is known: R.S.C. 1970, c. C-34, s. 542(2). The regime did not provide
    for any hearing and afforded no procedural safeguards. By virtue of its failure
    to provide for procedural fairness, the Supreme Court held that the impugned
Criminal
    Code
provision failed to comply with the principles of fundamental justice.
    Accordingly, the provision was struck down as a violation of s. 7 of the
Charter.

[83]

In
    response to
Swain
, Parliament enacted Part XX.1 of the
Criminal Code
.
    Among other changes, the newly-enacted s. 672.54 stipulated that a Review
    Boards disposition must be the least onerous and least restrictive. In
Winko
    v. Forensic Psychiatric Institute
, [1999] 2 S.C.R. 625, the Supreme Court
    considered whether this new scheme, specifically s. 672.54, complied with the
    principles of fundamental justice. At para. 71, the court identified the dual
    objectives of Part XX.1, and s. 672.54 in particular as being first, the
    protection of the public from an NCR accused who poses a significant threat to
    public safety and second, safeguarding the NCR accuseds liberty to the
    maximum extent possible. The court carefully reviewed the various procedural
    safeguards Parliament had incorporated into the regime. It noted, at para. 47,
    that s. 672.54 requires the court or Review Board to consider the need to
    protect the public from dangerous persons, together with the mental condition
    of the accused, his or her reintegration into society, and his or her other
    needs. The court observed, at para. 59, that the flexible scheme in Part
    XX.1 is capable of taking into account the specific circumstances of the
    individual NCR accused, and the specialized Review Boards must sensitively
    evaluat[e] all the relevant factors on an ongoing basis.

[84]

The
    Supreme Court confirmed in
Penetanguishene Mental Health Centre v. Ontario
    (Attorney General)
, 2004 SCC 20, [2004] 1 S.C.R. 498, at para. 53, that
    Part. XX.1 of the
Criminal Code
survived the s. 7
Charter
challenge in

[
Winko
]
only because at every step of the process
    consideration of the liberty interest of the NCR accused was built into the
    statutory framework

(emphasis added). Again in
R. v. Demers
,
    2004 SCC 46, [2004] 2 S.C.R. 489, the court affirmed, at para. 40, that the
    legislation withstood the challenge in
Winko
because [i]n cases where a
    significant threat is established, Parliament has further stipulated that the
    least onerous and least restrictive disposition of the accused must be
    selected, thereby ensuring that the NCR accused's liberty is impaired no more
    than is necessary to protect public safety. Similarly, in
Pinet v. St.
    Thomas Psychiatric Hospital
, 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 19,
    the court stated that the liberty interest of an NCR accused should be
a
    major preoccupation
of the Review Board (emphasis added).

[85]

In
Penetanguishene
, at para. 24, the Supreme Court clarified that the
    standard of least onerous and least restrictive applies to conditions of
    detention or release as well as to the ultimate disposition. The court observed
    that the least restrictive regime includes not only the place or mode of
    detention but the conditions governing it. The court continued, [t]he liberty
    interest of the NCR accused is not exhausted by the simple choice among
    absolute discharge, conditional discharge, or hospital detention on
    conditions. The conditions of detention or of a conditional discharge can
    also have serious ramifications for his or her liberty interest.

[86]

Significantly,
    the court found, at para. 40, that in terms of the liberty interest, the
    disposition and its conditions cannot, as a practical matter, be isolated
    from one another. It noted, at para. 52, that [t]he unnecessary trammelling
    of liberty can often lie in the precise conditions attached to the order and
    not just in the general mode of detention. The devil, as is so often the case,
    lies in the details.

[87]

The
    need for meaningful and detailed review of the conditions of confinement is not
    restricted to the mental health context. In
Charkaoui
, the Supreme Court
    considered a challenge to the provisions of the
Immigration and Refugee
    Protection Act
, S.C. 2001, c. 27 (IRPA), that permitted the Minister to
    issue certificates of inadmissibility. These certificates led to the detention
    of permanent residents or foreign nationals deemed a threat to national
    security. The court held, at para. 107:

[T]he s. 7 principles of fundamental justice  require that,
    where a person is detained or is subject to onerous conditions of release for
    an extended period under immigration law, the

detention

or the
    conditions must be accompanied by a meaningful process of ongoing review that
    takes into account the context and circumstances of the individual case.

[88]

At
    para. 108, the court cited with approval Rothstein J.s conclusion in
Sahin
    v. Canada (Minister of Citizenship & Immigration),
[1995] 1 F.C. 214,
    at pp. 231-232,

that ongoing detention in the immigration context

could
    be constitutional if it resulted from a judicial process that involved the
    weighing of several factors, including:

The availability, effectiveness and appropriateness of
    alternatives to detention
such as outright release, bail bond, periodic
    reporting, confinement to a particular location or geographic area, the
    requirement to report changes of address or telephone numbers, detention in a
    form that could be less restrictive to the individual, etc. [Emphasis added.]

[89]

The
    court noted in
Charkaoui
, at para. 116, that [s]tringent release
    conditions  seriously limit individual liberty. However, they are less severe
    than incarceration. Because the IRPA

allowed judges to consider terms
    and conditions that would neutralize the danger, fashion conditions that
    would neutralize the risk of danger upon release, and, if satisfied that the
    danger no longer exists or that it can be neutralized by conditions  order the
    release, the judicial review was considered sufficiently robust (at paras.
    119-123). The certificate scheme was deemed constitutionally sufficient since
    the reviewing court was required to take into account alternatives to detention
    (at paras. 109-110).

[90]

In
Penetanguishene,
the court stated, at para. 67,

that Review
    Boards must also have regard for the
other
needs of the accused under s.
    672.54, and at the forefront of these other needs is the need for
    treatment. In
Winko
, the court held, at para. 41, that [p]roviding
    opportunities [for the NCR accused] to receive treatment, not imposing
    punishment, is the just and appropriate response. See also
Mazzei v.
British
    Columbia (Director of Adult Forensic Psychiatric Services)
, 2006 SCC 7,
    [2006] 1 S.C.R. 326, at paras. 40-41: Review Boards must have the power to
    impose conditions which relate to those opportunities and to the provision and
    supervision of medical services, and must have some supervisory power over
    the medical treatment of NCR accused persons who are detained in hospitals.

[91]

Demers
establishes that legislation that provides for detention without vesting the
    administrative body supervising the detention with adequate procedural powers
    will violate s. 7. In that case, the court considered the application of Part
    XX.1 of the
Criminal Code
to an accused who was permanently unfit to
    stand trial. As a result of his permanent condition, he faced indefinite
    appearances before the Review Board. The Review Board did not have the power to
    order psychiatric assessments to determine whether he continued to pose a risk
    to society. The court held, at para. 49, that [f]or the Review Board to
    properly assess the individual, and to make or recommend an appropriate
    disposition to fit the given situation of an accused, it must have the
    authority to order a psychiatric evaluation. The court stated, at para. 52,
    that [p]sychiatric evaluations are necessary to assess the mental condition of
    the permanently unfit accused in order to impose the least restrictive
    conditions, if any, on his or her liberty. It emphasized, at para. 55, the
    need for the Review Board to have the procedural tools necessary to adapt a
    disposition to meet the permanently unfit accused's current circumstances. The
    lack of authority to order a psychiatric evaluation resulted in unfair
    treatment of a permanently unfit accused under Part XX.1, contrary to s. 7 of
    the
Charter
.

[92]

In
    sum, the case law suggests that in the non-punitive detention context, s. 7
    requires the body reviewing detention to have the procedures and powers
    necessary to render a decision that is minimally restrictive on liberty in
    light of the circumstances necessitating the detention.

(3)

Starnaman v. Penetanguishene Mental Health Centre

[93]

As
    I have noted, the application judge essentially disposed of the s. 7 argument
    on the ground that the issue had been conclusively determined by this court in
Starnaman
.
    This appeal was heard by a five-judge panel so that, if necessary, the decision
    in
Starnaman
could be reconsidered.

[94]

Starnaman
involved the gating of an inmate who had a long history of sexual offences
    against young girls. Just prior to the expiry of his two-year sentence for
    uttering threats, a psychiatrist at the Regional Treatment Centre in Kingston
    requested that the appellant be assessed under the MHA. The appellant was
    transferred to PMHC, where he was found to meet the statutory criteria for a
    certificate of involuntary admission based on a diagnosis of pedophilia. The
    certificate was renewed twice. Within approximately two months of the first
    certification, the appellant sought a review before the Review Board (the
    predecessor of the CCB). A majority of the Board upheld the certificate and the
    subsequent renewals, and an appeal from that decision was dismissed: [1994]
    O.J. No. 1958 (Ont. Gen. Div.).

[95]

On
    appeal to this court, the appellant argued that: (1) resort to the MHA just as
    his sentence was about to expire was an abuse of the civil commitment process
    and amounted to a
de facto
dangerous offender proceeding without the
    parallel safeguards and limitations of that process; (2) it was an abuse of
    process for the Kingston psychiatrist to request an assessment under the MHA
    based on criminal conduct for which the appellant had already been convicted
    and served his sentence; and (3) when used for long-term detainees, the MHA
    procedure is procedurally inadequate and contravenes s. 7 of the
Charter.

[96]

In
    a short, oral by the court decision, the panel (Finlayson, Doherty and Abella
    JJ.A.) dismissed the appeal. The court found no abuse of process as the MHA
    committal was dealt with entirely by mental health clinicians with no
    connection to the penal system, the record demonstrated that the PMHC staff had
    acted with a view to implementing the provisions of the
Mental Health Act
as they interpreted them and for no oblique purpose (at p. 705), and there was
    no basis for the argument that the MHA committal had amounted to a disguised
    dangerous offender application.

[97]

With
    respect to the broader s. 7 issue raised, the court carefully restricted its
    conclusion to the facts of the case. The court specifically refrain[ed] from
    deciding whether a [Form 1] application can be made in circumstances where the
    conduct prior to incarceration provides the only basis for the application (at
    p. 705). Most important for the purposes of this appeal was the courts
    treatment of the procedural adequacy of the MHA involuntary committal
    provisions when applied to long-term detainees. The court stated, at pp. 705-706:

The appellant contends that, while the procedure may be
    adequate for the purposes of short-term involuntary commitment, it is not
    adequate for longer-term commitments such as occurred in this case. We are not
    satisfied that the scheme set out in the
Act
is constitutionally
    deficient.
While that is not to say that the necessary fairness standard may
    not be [b]reached in a particular case, we find no procedural unfairness in
    this record
. The submissions based on s. 7 of the
Charter
must be
    rejected. [Emphasis added.]

[98]

I
    find it impossible to read that brief passage as having conclusively determined
    that the MHA procedures must, in all cases, be deemed to meet the
    constitutional standard prescribed by s. 7 of the
Charter.
The court
    stated, at p. 704, that while there were broader concerns referable to the
    role of the civil commitment process and its relationship to the criminal
    process, the case before it can and should be disposed of only by reference
    to the specific issues raised herein; the broader questions cannot properly be
    addressed on this record. Dismissing a motion to extend the time to apply for
    leave to appeal to the Supreme Court, Cory J. agreed that the broader question
    raised on the appeal could not be properly addressed on the record presented:
    [1996] S.C.C.A. No. 129.

[99]

The
    panel in
Starnaman
was careful to restrict the reach of its holding to
    the facts of the case before it and explicitly left open the possibility that
    in other cases, the necessary fairness standard mandated by s. 7 could be
    breached. Here, we have the benefit of a very full record, including many
    decisions of the CCB that chronicle the appellants lengthy history as an
    involuntary patient under the MHA. There was no such record in
Starnaman
.

[100]

I note as well
    that the focus in
Starnaman
was on the issue of gating. That issue has
    attracted some critical attention in academic writing: see Yukimi Henry,
    Psychiatric Gating: Questioning the Civil Committal of Convicted Sex
    Offenders (2001) 59 U.T. Fac. L. Rev. 229; Andres Hannah-Suarez, Psychiatric
    Gating of Sexual Offenders under Ontarios Mental Health Act: Illegality,
Charter
Conflicts and Abuse of Process (2005-2006) 37 Ottawa L. Rev. 71. However, the
    appellant has not squarely challenged the constitutionality of gating in this
    proceeding and accordingly I make no comment on that issue.

[101]

When responding
    to the request for a five-judge panel to reconsider
Starnaman
, Ontario,
    supported by Waypoint, took the position that the central issue raised on this
    appeal was not governed by
Starnaman
. Ontario submitted that a
    reconsideration of
Starnaman
was not warranted because the appellant
    raises a novel constitutional argument that was not considered or decided in
Starnaman
 i.e. that the CCB should have the same broad powers to impose terms and
    conditions on a hospital detaining a psychiatric patient as the Ontario Review Board
    has when it deals with NCR offenders. Ontario submitted that this court never
    considered such an argument in
Starnaman
, and that the panel hearing
    this appeal would not be bound with respect to this new issue. I accept this
    submission.

[102]

Finally, when
    considering the reach of
Starnaman
, it is significant to note that at
    the time it was decided, the extensive body of jurisprudence from the Supreme
    Court that I have considered above regarding the level of procedural fairness
    mandated by s. 7 had not yet been fully developed.

[103]

I note that the
    application judge also referred to
C.B. v. Sawadsky,
[2005] O.J. No.
    3682 (S.C.), aff'd, (2006), 82 O.R. (3d) 661 (C.A.), leave to appeal refused,
    [2006] S.C.C.A. No. 479, to support his holding that the MHA does not violate
    s. 7. However, that case dealt with a committal of short duration and did not
    address the issues raised in this appeal.

[104]

I conclude,
    accordingly, that as the specific issue decided in
Starnaman
is not
    before us on this appeal and as
Starnaman
left open for future
    consideration the very issue that is before us,
Starnaman
is
    distinguishable and does not govern the case we have to decide.

[105]

It follows that
    the application judge erred in law by ending his analysis at
Starnaman
and by failing to give full consideration to the legal arguments relating to
    the constitutionality of the involuntary committal provisions of the MHA.

(4)

The application judges factual findings in relation to s. 7

[106]

The application
    judge paints a much rosier picture of the appellants situation than one finds
    in the decisions of the CCB. While recognizing that the appellant did not
    belong in maximum security, the application judge found that the appellant was
    in fact accorded privileges not usually granted to maximum security patients
    and that considerable effort was made to meet his specific needs. Ontario and
    Waypoint rely on the application judges finding, at para. 85, that the
    appellant has been afforded the utmost liberty compatible with his situation.

[107]

Ontario and
    Waypoint urge us to defer to the application judges factual findings in
    concluding that there was no breach of s. 7.

[108]

I am unable to
    accept that submission. In my view, the application judges factual findings
    are infected by legal error and thereby invite appellate review.

[109]

First, the
    application judge erroneously held that the s. 7 issue was conclusively
    determined by
Starnaman
. This legal error meant that he failed to
    consider the s. 7 issue from the perspective of the applicable legal principles
    relating to the constitutionally-imposed requirements for procedural fairness.
    Rather than focusing on the inadequacies of the MHA, the application judge
    viewed the appellants s. 7 argument solely as a challenge to the discretionary
    conduct of PMHC and Waypoint. This amounts to an extricable error in
    principle that permits appellate review:
Housen v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at
    para. 37.
I find that the application judges erroneous reasoning
    tainted his factual findings in relation to the issue of whether the inadequacy
    of the MHA infringed the appellants liberty interest.

[110]

Second, the
    application judge failed to consider the substantial record of CCB decisions in
    assessing the degree of procedural fairness accorded to the appellant and the
    extent to which his residual liberty interest was respected. The CCB decisions
    were before the application judge but are scarcely mentioned in his reasons. As
    I have said, these decisions provide a contemporaneous account and assessment
    of the appellants situation at Oak Ridge. The application judge failed to
    grapple with the strong message conveyed by the CCB regarding unwarranted
    restrictions on the appellants liberty. If the application judge disagreed
    with the findings and conclusions of the CCB, he had to offer a reasoned
    explanation for his disagreement. His failure to do so renders his own contrary
    factual findings vulnerable to appellate review:
Sharbern Holding Inc. v.
    Vancouver Airport Centre Ltd.
, 2011 SCC 23, [2011] 2 S.C.R. 175, at para.
    71.

(5)

Does the MHA meet the s. 7 standard?

[111]

I can see no
    reason why the standard applied by the Supreme Court to the detention of those
    found unfit to stand trial or NCR and to foreign nationals detained because
    they pose a risk to national security should not apply to a long-term involuntary
    patient detained under the MHA.

[112]

The principle
    that emerges from the cases discussed above is that where an individual is not
    being detained for punishment following conviction, but rather is detained simply
    because he or she poses a risk to public safety, the
Charter
s guarantee
    of fundamental justice requires that there be a fair procedure to ensure, on a
    regular and ongoing basis, that:

1.

the risk to public safety
    continues; and

2.

the individuals liberty is being
    restricted no more than is necessary to deal with that risk.

[113]

It is also
    implicit that protection of the liberty interest requires appropriate steps to be
    taken to facilitate, to the extent possible, the individuals eventual
    re-integration into the community.

[114]

In my view, the
    limited powers conferred upon the CCB fail to meet this constitutional
    standard. The constant refrain in the CCBs decisions involving the appellant
    is that detention in a maximum security facility is not necessary, that he is
    not receiving the treatment he needs and that he requires the services of an
    interpreter. It is painfully evident from the CCBs decisions and from the
    frustration expressed by its members that the MHA fails to provide the CCB with
    the tools necessary to ensure that the liberty interests of long-term involuntary
    patients are restricted no more that is necessary to deal with the risk they
    pose and that appropriate steps are being taken towards their eventual
    reintegration into the community.

[115]

By failing to
    confer upon the CCB the necessary authority, the MHA fails to ensure, as
    required by
Winko
and
Penetanguishene
, that at every step of the
    process consideration of the liberty interest of the [detained individual is]
    built into the statutory framework. Specifically, the CCB lacks the
    jurisdiction to supervise the security level, privileges, therapy and treatment
    of long-term detainees and to craft orders that would ensure an appropriate
    balance between public protection and the protection of detainees liberty
    interests.

[116]

Ontario submits
    that there is no constitutional requirement for the legislature to give
    tribunals any particular powers or jurisdiction and that the appellant has no
    right to insist upon a tribunal with powers modeled on those conferred by Part
    XX.1 of the
Criminal Code
on the Ontario Review Board. Ontario argues
    that the appellant is asserting a positive right that is not conferred by the Constitution.

[117]

This submission
    mischaracterizes the appellants position and fails to account for the
    applicable constitutional principles and governing jurisprudence. The appellant
    is not asserting a claim for a positive right requiring the province to create a
    specific tribunal with particular powers. Rather, he is responding to the fact
    that he is being detained against his will under the MHA and he is asking
    Ontario to respect the constitutional requirements triggered by this state
    action. The legislature is entitled to take away the appellants liberty to
    protect the public, but in doing so, it must respect the principles of
    fundamental justice. The long line of authority that I have just reviewed,
    starting with
Swain
, establishes that where an individual is detained
    because of a mental disorder likely to lead to public harm, the principles of
    fundamental justice mandate a minimum level of procedural protection.

[118]

In a second and
    related submission, Ontario argues that where a patient wishes to challenge a
    committal on grounds that fall outside the powers of the CCB, there are
    alternate procedures available to fill any perceived gap. The patient can
    initiate proceedings in the Superior Court, resort to internal complaint
    procedures within the hospital, complain about doctors and nurses to the
    appropriate professional colleges or invoke the process established by the
Human
    Rights Code
, R.S.O. 1990, c. H.19, with respect to complaints about a
    failure to accommodate a disability.

[119]

If we were to
    accept this submission, the appellant, a person who suffers from a mental
    disorder and a serious disability and who is held in a maximum security
    institution, would have to initiate proceedings in two or more different
    tribunals. This solution is fatally flawed; it is legally inadequate and
    practically unworkable. It would be prohibitively costly, very slow, seriously
    inconvenient and almost certainly ineffective.

[120]

Even if he were
    somehow able to find a way to initiate these proceedings, none of the fora to
    which Ontario would send him would have the necessary expertise or the powers
    to deal with his situation in a comprehensive manner. I fail to see how this
    could possibly comply with the principle I have already cited from
R. v.
    Kobzar,
at para. 57:
The state
    cannot detain people for significant periods of time without providing them
    with a fair procedural process.

[121]

After this
    appeal was argued, the Supreme Court released its decision in
R. v.
    Conception
, 2014 SCC 60, [2014] S.C.J. No. 60, upholding the right of a
    hospital to refuse to accept a patient found unfit to stand trial for treatment
    pursuant to s. 672.62 of the
Criminal Code
. We granted Ontarios request
    to permit the parties to file written submissions on
Conception
. In my
    view,
Conception
has little, if any, bearing on the issues presented in
    this appeal.
Conception
certainly does not detract from the long line of
    authority discussed above as to the need for ongoing supervisory review of the
    treatment of NCR accused and those found unfit to stand trial: see
Mazzei
,
    at paras. 40-41, and
Penetanguishene
, at para. 67. Nor does it stand for
    the proposition advanced by Ontario that by conferring discretion on health
    care professionals, a statute such as the MHA can somehow avoid the need for an
    effective review mechanism.

[122]

I emphasize that
    in keeping with the focus of the appellants constitutional challenge, my
    analysis is restricted to the situation of long-term detainees under the MHA,
    which I have defined as patients who are detained for longer than approximately
    six months.

(6)

Is the MHA scheme saved by the transfer provision under s. 39.2?

[123]

Ontario argues
    that whatever deficiencies may have existed under the MHA before 2010 have been
    resolved by the enactment of s. 39.2. As I explained above, this provision
    allows an involuntary patient (or an individual on his or her behalf) to apply
    to the CCB for a transfer to another psychiatric facility and gives the CCB the
    power to order such a transfer after the completion of a fourth certificate of
    renewal and every fourth certificate of renewal thereafter. As the appellant
    has made no application for a transfer and has refused to consent to such an
    application, the respondents argue that he cannot complain of his continued
    detention at Oak Ridge.

[124]

The application
    judge agreed with that position and held, at para. 66:

In light of the new transfer provisions in the MHA, I am unable
    to accept that the Applicants residual liberty is being denied to him. He
    needs merely to make an application under s. 39.2 to challenge any present
    restriction on his residual liberty by him being housed in a maximum security
    facility.

[125]

The appellant
    takes the position that he should not be transferred to another psychiatric
    facility because his doctors have determined that he is ready for a community
    placement. He also contends that there is no psychiatric hospital in Ontario
    that can accommodate his concurrent disabilities of deafness and mental
    disorder. In my view, it is not possible to determine on this record whether or
    not the appellants refusal to consent to a transfer was reasonable. Under the
    terms of the bifurcation order, resolution of the specific issue of how best to
    deal with the appellants service and security needs is to be dealt with at the
    second phase of this litigation.

[126]

At this stage,
    we are tasked with assessing the constitutional adequacy of the CCBs powers,
    including s. 39.2. In my view, the limited authority conferred by s. 39.2 fails
    to bring the MHA up to the applicable constitutional standard. Section 39.2 is
    a blunt tool. It only deals with transferring a long-term patient from one
    psychiatric facility to another. This falls well short of a general authority
    to ensure that the liberty interest of the patient is adequately protected. The
    CCB lacks the jurisdiction to order a long-term patient to be transferred to a
    different security level within a psychiatric facility, to transfer him or her
    to another hospital with conditions, or to increase privileges regarding
    community access. There is nothing in s. 39.2 of the MHA to give the CCB the
    authority to ensure that the long-term patient is moved towards reintegration
    into the community. There is no power to order conditions for gradual release
    or ongoing supervision.

[127]

I agree with and
    adopt the submissions in the factum of the intervenor, the Mental Health Legal
    Committee, that the CCBs inability to tailor conditions of detention to meet
    the individualized circumstances of long-term patients constitutes a statutory
    gap that can lead to overly restrictive, prolonged and indefinite detentions
    thereby rendering the impugned scheme overbroad in relation to long-term
    patients (at para. 20). By limiting the power of the CCB to confirm, rescind or
    transfer, the MHA fails to ensure that the conditions of a persons long-term
    detention are tailored to reflect the persons actual level of risk, moving
    towards their ultimate integration (at para. 31). As articulated at para. 13
    of the Canadian Civil Liberties Associations factum, the CCB lacks the
    required authority to make orders regarding security, privileges, therapy and
    treatment, or access to and discharge into the community, including basic
    questions as to where and how a person is detained and how they are discharged
    into the community. While the MHA enables physicians to issue and renew community
    treatment orders (s. 33.1) and provides for review of such orders by the CCB
    (s. 39.1), the MHA does not give the CCB the power to issue a community
    treatment order as an alternative to detention for an individual certified as
    an involuntary patient.

[128]

These gaps in
    the powers conferred on the CCB have directly affected the appellant. The
    appellant has never required maximum security. He may now be ready for some
    form of supervised community living. Though he continues to pose a risk to
    public safety, and managing that risk may require ongoing supervision, the CCB
    still lacks the authority to maintain the certification while ordering less
    restrictive supervisory conditions. It is virtually inevitable in such a case that
    the CCB will revert to the default position of ordering detention, in this case
    in maximum security, even where public safety could be assured with an order
    less intrusive upon the liberty of the patient.

[129]

I conclude that
    the MHA lacks the procedural safeguards required by s. 7 to ensure adequate
    protection of a long-term patients liberty interest.

(7)

Section 1 of the
Charter

[130]

The Supreme
    Court stated in
Suresh
, at para. 78, quoting from
Reference re
    Section 94(2) of the Motor Vehicle Act (British Columbia)
,

[1985] 2
    S.C.R. 486, at p. 518, that s. 7 violations will be saved by s. 1 only in
    exceptional conditions, such as natural disasters, the outbreak of war,
    epidemics and the like. The court added in
Charkaoui
, at para. 66, that
    violations of the principles of fundamental justice, specifically the right to
    a fair hearing, are difficult to justify under s. 1. There appears to be no
    case where the Supreme Court has held that a violation of s. 7 was justified
    under s. 1: Hamish Stewart,
Fundamental Justice: Section 7 of the Canadian
    Charter of Rights and Freedoms
(Toronto: Irwin Law, 2012), at p. 289.

[131]

Ontario makes
    reference to the argument that any breach of s. 7 could be justified as a
    reasonable limit pursuant to s. 1 of the
Charter
.

No serious
    effort was made to sustain this argument and it must be rejected.

(8)

Section 7: Conclusion

[132]

I conclude,
    accordingly, that the appellant has established a breach of his s. 7 rights due
    to the inadequacy of the CCBs review powers, which fail to ensure adequate
    protection of the liberty interest of those detained as long-term involuntary
    patients under the MHA. This infringement is not saved by s. 1.

Issue 3: Did
    the application judge err with respect to the appellants claim that his s. 15
    rights were violated?

[133]

Section 15(1) of
    the
Charter
provides:

15. (1) Every individual is equal before and under the law and
    has the right to the equal protection and equal benefit of the law without
    discrimination and, in particular, without discrimination based on race,
    national or ethnic origin, colour, religion, sex, age or mental or physical
    disability.

[134]

Deafness is a
    physical disability that triggers the protection of s. 15(1):
Eldridge v.
    British Columbia (Attorney General)
, [1997] 3 S.C.R. 624, at para. 55. The
    guarantee of equal protection and equal benefit of the law gives a deaf person,
    such as the appellant, the right to adequate interpretation services in order
    to access governmental services. In
Eldridge
, the Supreme Court held, at
    para. 78, that discrimination can accrue from a failure to take positive steps
    to ensure that disadvantaged groups benefit equally from services offered to
    the general public. The court also held, at para. 77, that to fulfil its s.
    15(1) obligation to ensure equal benefit of the law, an entity acting in a
    governmental role will be required to take special measures to ensure that
    disadvantaged groups are able to benefit equally from government services.

[135]

The appellant
    argues that during his time as an involuntary patient at Oak Ridge he has not
    been provided with adequate interpretation services and that his s. 15(1) right
    to equality has thereby been denied.

[136]

The application
    judge found violations of s. 15(1) on the following specific occasions where
    significant therapeutic interactions occurred in the absence of interpretation
    services: (i) the sexual preference assessment in February 1996; (ii) the
    psychological evaluation conducted on July 25, 1996; (iii) case conferences
    between 1996 and 1999; and (iv) 39 sessions of individualized sexual behavioural
    programming offered in 2006 and 2007. Ontario conceded that during the
    pre-divestment period, PMHC breached the appellants s. 15(1) rights by failing
    to provide adequate interpretation services during these interactions. The
    application judge found no s. 15(1) violations attributable to Waypoint.

[137]

The appellant
    argues that the application judge erred by limiting his s. 15(1) ruling to
    these limited interactions and contends that the nature and scope of the s.
    15(1) violations were much more extensive.

[138]

While I fully
    accept that the application judges factual findings are entitled to deference
    on appeal, I have concluded that his findings in relation to s. 15(1) are
    vulnerable to appellate review for two reasons. First, he erred in law with
    respect to the nature and extent of the application of s. 15(1). Second, he
    failed to address or explain a significant volume of evidence indicating that
    the failure to provide the appellant with adequate interpretation services was
    more prevalent than the specific occasions he listed. As a result of these
    errors, it is my respectful view that he mischaracterized the extent and nature
    of the violations of the appellants s. 15(1) rights.

(1)

Legal errors

(a)

Application of s. 15

[139]

In my view, the
    trial judge erred in law by unduly narrowing the application of s. 15(1) of the
Charter
in both the pre- and post-divestment periods. Because his error
    stems primarily from a misapplication of the
Eldridge
test for
Charter
application to private entities, I begin with the post-divestment period.

[140]

Post-divestment,
    the activities of Waypoint, a private entity, attract
Charter
scrutiny
    only to the extent that those activities may be described as governmental in
    nature. The test for determining the
Charter
s application to private
    entities is set out in
Eldridge
, at para. 44:

If the act is truly "governmental" in nature  for
    example, the implementation of a specific statutory scheme or a government
    program  the entity performing it will be subject to review under the
Charter
only in respect of that act, and not its other, private activities.

[141]

The issue in
Eldridge
was whether a private hospital was subject to
Charter
scrutiny in
    relation to its failure to provide sign language interpretation for a deaf
    patient. The court held that under the comprehensive medicare scheme of British
    Columbias
Hospital Insurance Act
, R.S.B.C. 1996, c. 204, the
    legislature had delegated to the hospital a governmental activity, namely, the
    provision of medically necessary services. The hospital was therefore acting in
    a governmental role when it provided medically necessary services to the
    public. The court held that s. 15(1) entitled deaf patients to receive
    medically necessary services on a footing of equality and non-discrimination.
    This required the hospital to provide the means necessary to ensure effective
    communication in the provision of medically necessary services.

[142]

Although Oak
    Ridge operated as a private hospital post-divestment, it remained the body that
    exercised the coercive power of the state to detain individuals certified as
    involuntary patients under the MHA. The MHA

does not specify precisely
    how a detaining hospital is to deliver services to detainees, but the statutory
    scheme

vests the hospital with the authority to play a governmental role
    in virtually every aspect of patients lives. The power to detain an individual
    pursuant to a statutory scheme is quintessentially a governmental function
    that attracts
Charter
scrutiny. The province cannot contract out of
    its
Charter
responsibilities by delegating statutory powers to a private
    entity such as Waypoint: see
Eldridge
, at para. 42.

[143]

Unlike the
    hospital in
Eldridge
, which

provided discrete services to
    voluntary patients, Waypoint exercises the statutory power to detain the
    appellant as an involuntary patient. Statutorily-mandated detention renders
    detainees entirely dependent upon the hospital for the receipt of medical and
    non-medical services. The circumstances in which the
Charter
applies are
    necessarily broader. The application judge therefore erred in restricting the
    reach of s. 15(1) to significant therapeutic services and interaction[s].

[144]

Pre-divestment,
    Oak Ridge was directly operated by Ontario. At para. 41 of
Eldridge
, the
    Supreme Court confirmed that it is well established that the
Charter
applies to all the activities of government, whether or not those activities
    may be otherwise characterized as private. The
Eldridge
test for
Charter
application to private entities was not applicable to Oak Ridge in the
    pre-divestment period. As Oak Ridge was directly operated by the government,
    deaf detainees were entitled to access all benefits offered to hearing
    detainees on an accommodated basis.

[145]

Although the
    application judge did not explicitly hold that pre-divestment, s. 15(1) applied
    only to significant therapeutic services and interaction, that conclusion is
    implicit in his reasons. The only infringements he found fall into the category
    of significant therapeutic interactions. At para. 97, he states that the
    appellants s. 15(1) rights were violated when ASL and [deaf appropriate]
    services were not provided to him for some significant therapeutic
    interventions in the pre-divestment period. He then states, applying the
Eldridge
test, that the failure to provide sign language interpretation where it was
    necessary for effective communication in important medical situations
    constituted a violation of s. 15(1). It was an error of law to apply the
Eldridge
test for
Charter
application in the pre-divestment period when Oak Ridge
    was operated by the government.

[146]

I conclude that the
    application judges reasons rest on the proposition that both pre- and
    post-divestment, s. 15(1) of the
Charter
only requires the provision of
    interpretation services during significant therapeutic services and
    interactions. This was an erroneous and overly narrow application of
Eldridge
.
    It follows that the application judges factual findings as to the appellants
    s. 15(1) claims, both pre- and post-divestment, are tainted by legal error. On
    account of that legal error, the scope of the inquiry he conducted was too
    narrow, and it follows that the findings he made fail to address the full scope
    of the s. 15(1) claim.

[147]

I note here that
    s. 15(1) does not require 24/7 interpretation services for all aspects of
    daily living, but in the context of involuntary detention, it certainly does
    require a degree of accommodation beyond the context of significant therapeutic
    services and interactions. In
Eldridge
, the court held, at para. 82,
    that the effective communication standard is a flexible one, and will take
    into consideration such factors as the complexity and importance of the
    information to be communicated, the context in which the communications will
    take place and the number of people involved. The means for effective
    communication does not have to be provided at all times and in every situation.

[148]

However,
    statutorily-mandated detention renders detainees entirely dependent upon the
    hospital, whether privately or publicly operated, for essential services and
    treatment. In my view, in the context of detention, the flexible
Eldridge
standard
    of effective communication mandates the regular provision of communication
    through deaf appropriate services in order to ensure that the detainees basic
    and fundamental personal needs are being fully understood and consistently
    addressed.

(b)

Failure to consider the absence of interpreters when offering treatment

[149]

The second legal
    error is that, even if one were to accept the application judges finding that
Eldridge
only required effective communication for significant therapeutic services and
    interactions, he overlooked PMHCs failure to utilize interpretation services in
    obtaining the appellants consent to or refusal of treatment.

[150]

The application
    judge accepted, at para. 29, the following definition of significant
    therapeutic interactions:

[P]hysician consultations and discussions relating to the
    [appellants] medications and treatment; requests, meetings, or assessments
    dealing with possible transfer, medications, or treatment; formal assessments
    with psychiatrists, psychologists, or other health professionals; and formal
    group or individual psychotherapy sessions.

[151]

This definition
    would appear to require that interpretation services be utilized during
    discussions and meetings relating to
possible
treatment, medications and
    assessments, even where the outcome of such interactions is a refusal of
    treatment. To obtain a patients informed consent to treatment, the hospital
    needs to be able to communicate information respecting the nature of the
    illness as well as the risks and benefits of either
refusing or accepting
the proposed treatment. In my view, the provision of information regarding
    proposed therapeutic interventions, as well as the corresponding communication
    of consent or refusal, requires effective communication through deaf appropriate
    services.

[152]

As the Supreme
    Court noted in
Eldridge
,

at para. 57, the dominant perception of
    deafness is one of silence. This perception has perpetuated ignorance of the
    needs of deaf persons and has resulted in a society that is for the most part
    organized as though everyone can hear. By making assumptions about the
    appellants various refusals of treatment and interpretation services without
    properly addressing the communication barriers, those responsible for the
    appellants treatment and care exacerbated the lack of treatment opportunities
    and therapeutic programming the appellant received.

[153]

The record shows
    that when the appellant met with certified ASL interpreters in 2003 there was a
    breakthrough. He was able to express interest in educational and treatment
    programs. Dr. Fleming testified at the November 2003 CCB hearing that the
    appellant now understands the elements of a treatment program. The appellant
    participated in various therapeutic interventions in 2004, 2006, 2007, and
    2008, the majority of which occurred without accommodation. The appellants
    comprehension of proposed treatment and the rationale for such treatment appear
    to have been crucial to his eventual participation in therapeutic
    interventions.

[154]

In 2008,
    psychologist Dr. Anderson met with the appellant in the presence of
    interpreters and reported that the appellant wished to receive therapy for
    sexual offending behaviour. Dr. Fleming agreed on cross-examination that there
    has never been any specialized treatment programming for hearing-impaired
    individuals at Oak Ridge. The application judges reliance on the appellants
    refusal of treatment mischaracterized the level of accommodated therapeutic
    programming that was actually available at Oak Ridge.

[155]

In sum, the
    application judge erred by failing to consider whether clinicians used
    interpretation services to facilitate communication when offering treatment to
    the appellant and when obtaining his alleged refusals.

(c)

Failure to consider material evidence

[156]

The application
    judge found, at para. 76:

[T]he evidentiary record is replete with treatments and
    opportunities afforded to the [appellant], often complemented with [deaf
    appropriate services]. These include: phallometric testing, a relapse
    prevention program, sexual behaviour therapy, religious counselling
,
and
    trials of antipsychotic medication and anti-androgens.

His reasons provide no indication that he adverted to
    the significant volume of evidence  in particular, the CCB decisions  that
    paints a very different picture of the adequacy of the interpretation services
    provided to the appellant.

[157]

The CCB decisions
    indicate that from the very beginning, it had concerns regarding the inadequacy
    of the level of interpretation services provided to the appellant. In 1999, the
    CCB noted that the appellant was simply being warehoused. The CCB continuously
    emphasized the need for qualified signers to assist with conducting assessments
    and providing treatment, and noted repeatedly that this need was not being
    fulfilled.

[158]

In the absence
    of any explanation for why the application judge came to such a different
    conclusion from the CCB on the issue of the prevalence of interpreters and why
    he rejected the substantial body of evidence that supported the CCBs
    conclusions, I am unable to agree with the submission that this court must
    defer to those findings.

[159]

It would appear
    from the record that the first documented use of certified interpretation in
    the clinical setting was in September 1999. Subsequently, the record shows that
    the appellant received certified interpretation services outside of the legal
    context at most a couple of times per year until 2008, with increased frequency
    in the year 2005 when the hospital sought the appellants initial consent to
    drug therapy and subsequent consent to increased dosages. The vast majority of
    the treatment referred to by the application judge, including phallometric
    testing, the relapse prevention program and sexual behaviour therapy, took
    place without the benefit of signing assistance.

[160]

The application
    judge found, at para. 101, that Waypoint has made concerted efforts to have
    ASL interpreters available for monthly clinical team meetings, which the
    Applicant is encouraged to attend. The level of accommodation did increase in 2008.
    However, in an answer to an undertaking, Dr. Brian Jones, Vice President of the
    Provincial Forensic Programs Division of Waypoint, advised that Waypoint only
    began scheduling interpretive ASL services for clinical reviews in 2012, more
    than three years after it assumed management of Oak Ridge.

[161]

The application
    judges factual findings fail to take into account material evidence on the
    issue of the level of accommodation afforded to the appellant, which
    constitutes a reversible error:
Sharbern Holding Inc.
at para. 71.

(d)

Erroneous findings regarding the sufficiency of communication through
    writing and gestures

[162]

The application
    judge was satisfied that communication through simple written exchanges,
    gestures, or hand signals was sufficient for daily communication and held that
    there is no evidence before me that this has led to any type of
    misunderstanding or any measure of complaint from the [appellant] (at para.
    102). He commented that [a]ssessors have reported that the [appellant] was
    able to write as an effective means of communication (at para. 99).

[163]

In my view,
    these findings are problematic. The assessors the application judge is
    referring to were not language proficiency experts, nor did they have any
    expertise in working with deaf individuals. Their comments were made in the
    context of standard clinical interactions. The language assessments eventually
    performed revealed the opposite conclusion, namely, writing was
not
a
    reliable form of communication, particularly for important matters or when used
    exclusively for extended periods of time.

[164]

The application
    judge overlooked the fact that despite repeated notes in the clinical record of
    the appellants poor English language skills, a language proficiency test was
    not carried out until 2008, and that test placed the appellants English
    reading comprehension at a Grade 1.9 level. The assessor concluded:

Those working with [the appellant] currently and in the future
    must use the services of both a skilled and certified ASL interpreter and a
    skilled Deaf interpreter whenever possible, and
certainly for all matters in
    which [the appellant] is being asked to make decisions affecting his personal
    well-being
. [Emphasis added.]

[165]

For over a
    decade, health professionals at PMHC interacted with the appellant almost
    exclusively through written communication and gestures under the assumption
    that he understood the content of the communication
despite
the absence
    of a language proficiency assessment, and despite the availability of information
    pointing to the appellants limited reading and writing comprehension.

[166]

A report of a
    psychiatrist from 1988, which formed part of the appellants clinical file and
    was accessible to PMHC staff, observed:

[The appellant] has trouble comprehending complex written
    material and should be considered as probably functionally illiterate

[]

Extreme caution should be used in interpreting any statements
    he makes without an experienced interpreter present, and in making sure that he
    comprehends what is being said before it is assumed that he is being
    uncooperative.

[167]

The application
    judge implied that the reliance on written communication and gestures was
    defensible given the appellants difficulties communicating in ASL. He found,
    at para. 99:

Effective communication with the Applicant proved a challenge
    from the outset. The assessments of Dr. MacDougall and the ASL Proficiency
    Assessment Report of April 2008 both reveal that the Applicant employed a
    version of Signed English rather than pure ASL. He often articulated English
    words while signing. He relied extensively on finger spelling ... Even Dr.
    MacDougall remarked on the Applicant's preference not to make use of deaf
    interpreters, given their limited utility to him.

[168]

To the contrary,
    there is an abundance of evidence in the record demonstrating that the
    appellant was able to engage in more effective communication through the use of
    interpreters. PMHC staff observed on several occasions that the use of
    interpreters markedly improved communication with the appellant in the clinical
    setting. The CCB repeatedly noted that the presence of interpreters was highly
    beneficial.

[169]

While there is
    evidence that the appellant sometimes rejected deaf interpreters, it is not
    clear that the rejections were always properly communicated or understood. In
    any event, given the evidence that interpretation facilitated effective
    communication, the appellants refusals cannot mitigate the detaining
    authoritys obligation to provide interpretation where necessary.

[170]

The application
    judge found, at para. 67, that the evidence is abundant that Waypoint has put
    into place a wide range of social, vocational, and recreational opportunities
    for the [appellant]. However, he failed to consider the level of accommodation
    incorporated into this programming, likely because he erroneously found that
    written communication was sufficient. While the appellant increasingly
    participated in activities offered by PMHC and Waypoint, Dr. Fleming agreed
    that there has never been any educational, vocational, recreational or social programming
    specifically for deaf people, although he did state that an effort had been
    made to tailor the programmes to make them at least as suitable as we can. By
    2012, there were still no staff members who were proficient or certified in
    ASL, though Waypoint began training three staff members in ASL in April 2012.
    Dr. Jones agreed on cross-examination that there is still no interpreter who
    attends the facility at regular intervals in order to facilitate communication
    with staff and co-patients about potential issues or concerns, and that the
    appellant would have to rely on the periodic visits of Deaf Access
    Simcoe-Muskoka volunteers to pose questions.

[171]

The application
    judge ignored the prolonged absence of efforts to provide educational programs
    to improve or maintain the appellants communication skills, despite
    highlighting, at para. 73, evidence that the appellants ASL skills actually
deteriorated
while at PMHC:

There is evidence from Dr. Delia Wallis that the [appellant]
    experienced a diminished level of skill and sophistication with sign language
    because of a prolonged lack of exposure to consistent models of ASL and limited
    opportunities to engage in a freely accessible exchange of communication.

[172]

In September
    2002, the CCB noted the interpreters opinions that the appellant might be
    losing some of his skills due to lack of use and suggested it might be helpful
    if he could have an interpreter just for casual conversation. This did not
    happen until 2007 at the arrangement of the appellants counsel. Dr. Fleming
    agreed on cross-examination that a lack of access to ASL had eroded the
    appellants skills in this area.

[173]

The application
    judges conclusions on the sufficiency of communication through written
    communication and gestures constitute a misapprehension of the evidence.

(2)

Efforts by Waypoint to improve access to interpreters

[174]

More recently, the
    staff at Waypoint has made increasing efforts to ensure the appellant was
    provided with accommodated educational programming. In November 2009, Waypoint
    began funding regular educational sessions with an ASL-fluent tutor from Deaf
    Access Simcoe-Muskoka covering subjects such as ASL skills, Deaf culture, math,
    geography and current events. Waypoint requested Dr. MacDougalls continued
    involvement to try to develop appropriate programming in the future and to help
    move the appellant through the system, though it appears appropriate
    programming has not yet been implemented. Waypoint also made efforts to arrange
    for a transfer of the appellant to a facility that would be able to better
    provide him deaf access services. These efforts were complicated by the fact
    that the appellant rejected Waypoints offer to initiate an application for a
    transfer under s. 39.2.

[175]

I accept that
    the Waypoint staff has worked to increase the availability of interpreters and
    has made genuine efforts to transfer the appellant to a more appropriate
    facility. I also recognize that the combination of the appellants mental
    illness and his physical disability poses substantial problems for his care,
    treatment and rehabilitation in a world of limited resources. However, the
    application judges references to the absence of bad faith and the lack of
    intention to violate the appellants s. 15(1) rights cannot be regarded as
    determinative.  A claim under s. 15(1) does not require proof of fault, and
    good faith efforts to make the best of a difficult situation cannot excuse a
    systemic failure to respect the appellants equality rights.

[176]

While those
    responsible for the appellants care and treatment are to be commended for the
    good faith efforts they have made, those individual efforts cannot excuse the
    institutional denials of equality that are evident in this case. Where a
    government system of detention consists of fragmented, under-resourced entities
    with inadequate powers that collectively contribute to a breach of s. 15(1),
    the fact that individuals working within those entities do their best cannot
    leave the individual whose rights have been denied without a remedy.

[177]

The application
    judges rejection of the s. 15(1) claim against Waypoint was tainted by legal
    error, as discussed above. Nonetheless, while there appears to be evidence upon
    which a properly instructed trier of fact could find a s. 15(1) breach as
    against Waypoint, in the circumstances of this case, I do not consider that it
    would be appropriate for this court to take that step for several reasons.
    First, we are not a court of first instance and we are not well-equipped to
    make detailed findings of fact. Second, the record before us is not current. We
    do not have an up-to-date account of the appellants present situation and any
    issues as to remedy for past violations can be dealt with in the second phase
    of this litigation. Third, while there was a change in the formal legal
    structure governing Oak Ridge, the transition from PMHC to Waypoint in terms of
    the care and treatment of the appellant appears to have been seamless and from
    a practical remedial perspective, it is somewhat artificial to draw a sharp
    distinction in the appellants situation pre- and post-divestment. Related to
    this is the fourth point, namely, that for reasons I will explain, the
    appropriate remedy at this stage of the litigation is a general declaration of
    the appellants s. 15(1) rights, leaving the question of any specific remedy to
    be addressed in the second phase of the litigation.

(3)

Interplay between s. 15 and s. 7

[178]

The application
    judge was not able to find that any systemic inadequacies or lack of
    accommodation have prolonged the [appellants] involuntary detention (at para.
    75). In my view, this finding cannot be accepted given the errors I have
    discussed in relation to the application judges s. 15(1) analysis. The
    unavoidable conclusion is that the s. 15(1) violations increased the gravity of
    the s. 7 violations.

[179]

The prolonged
    absence of accommodated assessment and treatment programs undoubtedly decreased
    the prospects of timely community reintegration, as noted in the 2009 report of
    Dr. MacDougall.

[180]

It is clear from
    a reading of the CCB decisions and clinical records that the appellant became
    more inclined to participate in treatment programs after meeting with
    interpreters in 2003. The decisions reveal a noticeable improvement in his
    skills, engagement and disposition when he began regularly practicing ASL with
    Deaf Access Simcoe-Muskoka staff in 2007, and particularly since he began
    receiving ASL tutoring in 2009. Had efforts been made to accommodate the
    appellant immediately following his committal in 1996 by providing interpretation
    services during therapeutic, educational and recreational programming, his
    well-being and overall rehabilitative prospects might have been markedly
    different.

(4)

Section 1
of the
Charter

[181]

I reject the
    submission that any infringement of s. 15(1) is saved by s. 1 of the
Charter
.
    Section 1 contemplates the limitation of
Charter
rights by reasonable
    limits
prescribed by law
 (emphasis added). In my view, there is nothing
    before us capable of satisfying the requirement that the limitation of the
    appellants s. 15(1) rights has been prescribed by law.

[182]

The Supreme
    Court has taken a generous approach to the prescribed by law requirement. As
    stated in
Greater Vancouver Transportation Authority v. Canadian Federation
    of Students
, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 52, the Court does
    not require that the limit be prescribed by a law in the narrow sense of the
    term and accepted, at para. 65, that the prescribed by law requirement will
    be met where a government policy is authorized by statute and sets out a
    general norm or standard that is meant to be binding and is sufficiently
    accessible and precise.

[183]

In the present
    case, there is nothing capable of satisfying that generous standard. The
    respondents can point to no policy or statement that specifies or defines the
    nature or extent of the accommodation to which the appellant is entitled. Here
    we have nothing but the conduct of the individuals involved in the appellants
    care and treatment, and, as held in
Little Sisters Book and Art Emporium v.
    Canada (Minister of Justice),
2000 SCC 69,

[2000] 2 S.C.R. 1120, at
    para. 141, [v]iolative conduct by government officials that is not authorized
    by a norm or standard capable of satisfying the prescribed by law standard
    cannot be justified under s. 1.

(5)

Section 15
: Conclusion

[184]

Over the course
    of his detention, the appellant has endured prolonged and serious s. 15(1)
    breaches. He was not accommodated to the degree required by
Eldridge
for
    much of his time at Oak Ridge. The severity of the historic s. 15(1) breaches
    cannot be overstated, despite having been mitigated in recent years. Systemic
    deficiencies that block the appellants access to appropriate assessment,
    treatment and rehabilitative opportunities persist.

[185]

I will deal with
    the issue of the appropriate remedy for the s. 15(1) violations in the final
    part of these reasons.

Issue 4: Did the
    application judge err in declining to exercise his
habeas corpus
jurisdiction?

[186]

The application
    judge declined to exercise his jurisdiction to grant
habeas corpus
. That
    ruling was grounded in the conclusion that the MHA contains a complete code for
    the review of decisions made under that statute. I have found that the
    application judge erred in finding that the review powers of the CCB were
    constitutionally adequate.
Habeas corpus
is an appropriate remedy to
    challenge the constitutionality of legislation authorizing detention: see
Charkaoui
,
    at para. 90;
Steele v. Mountain Institution (Warden)
, [1990] 2 S.C.R.
    1385. It follows that the application judges rejection of
habeas corpus
as an available remedy cannot stand.

[187]

That said, while
    the appellants application originated in 2007 as one for
habeas corpus
,
    it has evolved since that time and is now principally a
Charter
challenge
    to the involuntary detention scheme under the MHA. The bifurcation order
    contemplated that the first stage of this litigation would require the court to
    decide whether the appellants
Charter
rights have been violated and to
    determine his service and security needs. Pursuant to this order, the focus of
    this appeal has been the constitutionality of the MHA and the extent of the infringements
    on the appellants equality rights. Given the way in which this litigation has
    progressed, it is not necessary to further address the
habeas corpus
application.

Issue 5: Did
    the application judge misinterpret this courts 2008 bifurcation order by
    failing to determine the appellants service and security needs?

[188]

The application
    judge held that it was not necessary to determine the appellants service and
    security needs as contemplated by the bifurcation order, as he found no ongoing
Charter
breach. While I am not persuaded that he erred in his
    interpretation of the bifurcation order, we are left in the unfortunate
    position that there has been no determination of a factually complex issue.
    There are no findings for us to test or assess and we are not equipped to
    engage in a detailed factual inquiry of that nature as if we were a first
    instance court or tribunal.

Issue 6: What is the appropriate remedy?

(1)

Remedy: Section 7

[189]

I now turn to
    the issue of appropriate remedy for the s. 7 breach.

(a)

Does the CCB have s. 24(1) jurisdiction?

[190]

The intervenor, t
he Mental Health
    Legal Committee, argues that the legislative gap created by the CCBs inability
    to supervise the terms and conditions of involuntary detention can be remedied
    by conferring s. 24(1) jurisdiction on the CCB in accordance with
R. v.
    Conway
, 2010 SCC 22, [2010] 1 S.C.R. 765.

This would require us to
    overrule the decision of the Divisional Court in
Ontario (A.G.) v. Patient
(2005), 250 D.L.R. (4th) 697, holding that the CCB lacks s. 24(1) jurisdiction.

[191]

I am not
    persuaded that even if the
CCB does
    have s.
24(1) jurisdiction, this would adequately fill the legislative
    gap created by the limited extent of the CCBs authority. In my view, it would
    impose an undue and unrealistic burden on both patients and the CCB. It would
    impose on patients the obligation to mount a
Charter
challenge every
    time they seek a proper review of their detention. It would require the CCB to
    rewrite its own powers on a case-by case basis.

[192]

I do not think
    it would be appropriate to say anything more about whether or not the CCB has
    s. 24(1) jurisdiction. The issue is raised by an intervenor, not by the
    parties, and it is not an issue that can affect the outcome in this case. In
    these circumstances, it is better left to another day.

(b)

The appropriate s. 52(1) remedy

[193]

The review
    procedures and the jurisdiction conferred upon the CCB in relation to
    involuntary committals appear to me to be tailored to meet the exigencies of
    short-term committals. I agree with the following statement from Ontarios
    factum, at para. 47:

The CCBs mandate is to make
    factual point-in-time determinations about whether the criteria in the
Mental
    Health Act
or other legislation are satisfied and to make decisions about
    such things as involuntary status, capacity to make treatment decisions, and so
    on. Unlike the ORB,
the CCB has never been mandated to provide oversight
    over involuntary patients for the indefinite future
. [Emphasis added.]

[194]

As I explained
    earlier in these reasons, the most recent provincial statistics on involuntary
    detention under the MHA indicate that 34% of patients involuntarily committed
    under the MHA were in hospital for less than a week, 80% for less than a month
    and 98% for less than six months.

[195]

These statistics
    are consistent with what appears to be a dominant theme of modern mental health
    care policy  minimizing hospitalization and maximizing rapid return to
    community living. The involuntary committal provisions of the MHA are tailored
    to deal with urgent situations where an individual requires immediate treatment
    to avoid harm to him or herself or harm to others. Certifications typically
    have a short life. The short periods of certification  72 hours for the first
    certification, two weeks for the second, an additional one month for the third
    and then an additional three months for each successive certification  form a
    statutory pattern that indicates an expectation that the risk of harm can
    ordinarily be resolved by treatment and that the patient can typically be
    returned to the community within days or weeks.

[196]

In the case of a
    short-term committal, the immediate issue for the CCB is whether or not the
    patient is certifiable. If he or she is certifiable, treatment will be provided
    and the patient will generally be released within a relatively short span of
    time. This means that, as a practical matter, the need to monitor issues such
    as conditions of confinement does not typically arise.

[197]

However, the MHA
    does not impose any limit on the number of times a patient can be certified,
    with the result that committals of indefinite length such as that experienced
    by the appellant are possible. Nor does the MHA provide for any alternate
    procedure or give the CCB additional powers to deal with the approximately two
    percent of committals that last for more than six months, other than the power
    to order a transfer to another hospital after the fourth renewal pursuant to s.
    39.2. It is this gap in the powers of the CCB that renders the involuntary
    committal procedures of the MHA constitutionally infirm in respect of long-term
    detainees.

[198]

I do not agree
    that all of the provisions identified in the Amended Notice of Application and
    attached as Appendix A to these reasons should be struck down on the facts
    presented in this case, as the case was advanced on the premise that the
    statute is only unconstitutional in its application to long-term detainees.

[199]

Section
    52(1)
of the
Constitution Act, 1982
,
provides that
    any law that is inconsistent with the provisions of the Constitution is, to
    the extent of the inconsistency, of no force or effect.
The phrase to
    the extent of the inconsistency leaves courts with considerable flexibility in
    crafting the appropriate remedy.

[200]

As Professor
    Roach explains in
Constitutional Remedies in Canada
, loose-leaf, 2nd ed.
    (Toronto: Canada Law Book, 2013), at para. 14.970: Severance is used by courts
    to preserve provisions in a legislative scheme that are not themselves
    unconstitutional and can stand on their own once other provisions have been
    declared to be inoperative. The issue, as articulated in
Schachter v. Canada
, [1992] 2 S.C.R. 679, at p. 702
, is
    whether a remedy such as severance will fulfil the purposes of the
Charter
and
    at the same time minimize the interference of the court with the parts of
    legislation that do not themselves violate the
Charter
. If the
    legislature would have passed the constitutionally sound part of the scheme
    without the words that are being severed, the remedy may be appropriate:
Schachter
,

at p. 697. In such a case, as was explained in
R. v. Morales
, [1992]
    3 S.C.R. 711, at pp. 741-742:

Severance does not usurp
    Parliaments role, but rather is the approach which best fulfills the terms of
    s. 52(1) of the
Constitution Act, 1982
, which provides that a law which
    is inconsistent with the Constitution is of no force and effect to the extent
    of the inconsistency. Severance is also least intrusive to the overall
    statutory scheme.

[201]

In my view,
    severance is the appropriate remedy in this case. Section 20(4) prescribes the
    duration of the initial and subsequent certificates of involuntary admission:

20(4) An involuntary patient may be
    detained, restrained, observed and examined in a psychiatric facility,

(a) for not more than two weeks under
    a certificate of involuntary admission; and

(b) for not more than,

(i)
       one additional month under a first certificate of renewal,

(ii)
    two additional months under a second certificate of renewal, and

(iii)
     three additional months under a third or subsequent certificate of renewal,

that is completed and filed with the officer in charge by the
    attending physician.

[202]

As a result of
    the procedurally inadequate powers of the CCB vis-à-vis long-term detainees,
    the appropriate remedy in the circumstances of this case is to limit the
    duration of MHA committals to approximately six months by declaring the words
    or subsequent in s. 20(4)(b)(iii) to be inconsistent with s. 7 of the
Charter
and therefore of no force or effect pursuant to s. 52(1). The effect of
    removing those words will be to respond to the specific issue that is raised by
    the facts of this case, namely, the inadequacy of the review procedure and the
    powers of the CCB in the context of long-term committals, by limiting the
    duration of involuntary committals to approximately six months.

[203]

On the evidence
    before us, 98% of all involuntary committals last less than six months.
    Severance is the least intrusive remedy and leaves it to the legislature to
    decide how to deal with the problem posed by the small number of individuals
    for whom a constitutionally acceptable long-term scheme is required. Needless
    to say, it would not be acceptable to circumvent the time-limited duration of a
    committal by simply restarting the process with a new certificate of
    involuntary admission upon the expiry of the three-month period contemplated by
    s. 20(4)(b)(iii).

[204]

Problems of the
    kind encountered in this case with respect to long-term committals are, as a
    practical matter, much less likely to arise in the case of committals of short
    duration. Any issue that might arise as to the CCBs review of short-term
    committals may be dealt with if and when that issue arises in a subsequent
    case.

[205]

I observe here
    that, since the CCBs power to order the transfer of an involuntary patient
    pursuant to s. 39.2 arises only after the fourth certificate of renewal  a
    period of approximately nine months  the transfer provision becomes inoperative
    unless amended by the legislature as a result of the declaration of invalidity
    that I propose.

(c)

Temporary suspension of the declaration of invalidity

[206]

In this case, as
    in
Swain
and
Demers
, an immediate declaration of invalidity would
    pose a risk to public safety as it would result in the release of individuals
    who have been found to pose a serious risk of harm to the public. In such a
    situation, temporarily suspending the declaration is appropriate. Accordingly,
    while I would grant a declaration of invalidity, I would temporarily suspend
    that declaration for a period of twelve months from the date of these reasons to
    afford the legislature the opportunity to consider how best to deal with the
    issue of long-term involuntary committals and the powers of the CCB.

(2)

Remedy: Section 15

[207]

At this stage,
    the appropriate remedy with respect to s. 15(1) is a declaration: (1) that the
    appellants s. 15(1) rights have been violated, and (2) setting out in general
    terms the nature and extent of his entitlement under s. 15(1), namely, that
    Ontario and Waypoint are required to provide the necessary and appropriate
    communication services that will ensure: (i) that the appellants basic and
    fundamental personal needs as a detainee are fully understood and addressed, and
    (ii) that the appellant is able to communicate effectively to access the
    therapeutic, treatment and other programs offered to hearing detainees.

[208]

This corresponds
    to the remedy granted in
Eldridge
where, as the court observed at para.
    96, [a] declaration, as opposed to some kind of injunctive relief, is the
    appropriate remedy  because there are myriad options available to the
    government to rectify the breach.

[209]

While this court
    is not in a position to determine the appellants service and security needs, I
    make the following observation in light of the submissions made as to the
    interaction of s. 24(1) of the
Charter
and s. 52(1) of the
Constitution
    Act, 1982
. The grant of a s. 52(1) remedy in connection to the
    unconstitutionality of the MHA

should not preclude an individual remedy
    under s. 24(1) for the breach of the appellants s. 15(1) rights. The two
    breaches are distinct, and the bifurcation order contemplates a s. 24(1) remedy
    if a
Charter
breach is found. The violation of the appellants equality
    rights is not tied to the constitutionally-deficient procedural protections in
    the MHA

scheme
.
In any event, the jurisprudence permits the
    combination of a s. 24(1) remedy and a s. 52(1) declaration of invalidity where
    s. 24(1) relief is necessary to provide an effective remedy:
R. v. Ferguson
,
    2008 SCC 6, [2008] 1 S.C.R. 96,

at para. 63, citing
Demers
.

DISPOSITION

[210]

I have concluded
    that the words or subsequent in s. 20(4)(b)(iii) of the MHA are inconsistent
    with s. 7 of the
Charter
and are therefore of no force or effect
    pursuant to s. 52(1) of the
Constitution Act, 1982
. The declaration of
    invalidity will be suspended for 12 months in order to protect public safety
    while the legislature considers revisions to the MHA. There shall also be a
    declaration as to the appellants rights under s. 15(1) of the
Charter
,
    as described at para. 207 of these reasons.

[211]

If the
    legislature decides to amend the MHA so as to provide for long-term civil
    detention, the most appropriate forum for the assessment of the appellants service
    and security needs would be the CCB, with the type of revamped powers and
    procedures required to bring the MHA into compliance with s. 7 of the
Charter
in respect of long-term detainees. In default of that, the bifurcation
    order contemplates a second phase of the litigation where the court is to
    consider the issue of the appropriate specific remedy.

[212]

Regrettably,
    after many years of litigation, the appellant is still left in limbo. I hope
    that with the benefit of this judgment and our articulation of the nature and
    extent of the appellants constitutional rights, the parties will find a way to
    deal with the appellant in an appropriate manner without the need for further
    litigation.

[213]

However, if
    further litigation is required, this matter is remitted to the Superior Court
    of Justice for a determination of the second phase as contemplated by the
    bifurcation order. In the circumstances, we direct that the matter should
    proceed on an expedited basis before a different judge of that court.

[214]

If the parties
    are unable to agree as to the costs of this appeal, they may make written
    submissions.

Released: K.M.W.  December 23, 2014

Robert J. Sharpe J.A.

I agree K.M. Weiler J.A.

I agree John Laskin J.A.

I agree E.E. Gillese J.A.

I agree K. van Rensburg J.A.

APPENDIX A:

Challenged
    Provisions of the
Mental Health Act
, R.S.O. 1990, c. M.7

20.
(1) The attending physician, after
    observing and examining a person who is the subject of an application for
    assessment under section 15 or who is the subject of an order under section 32,

(a) shall release the person from the psychiatric
    facility if the attending physician is of the opinion that the person is not in
    need of the treatment provided in a psychiatric facility;

(b) shall admit the person as an informal or voluntary
    patient if the attending physician is of the opinion that the person is
    suffering from mental disorder of such a nature or quality that the person is
    in need of the treatment provided in a psychiatric facility and is suitable for
    admission as an informal or voluntary patient; or

(c) shall admit the person as an involuntary patient
    by completing and filing with the officer in charge a certificate of
    involuntary admission if the attending physician is of the opinion that the
    conditions set out in subsection (1.1) or (5) are met. R.S.O. 1990,
    c. M.7, s. 20 (1); 2000, c. 9, s. 7 (1).

[]

Release
    of person by officer in charge

(3) The officer in charge shall
    release a person who is the subject of an application for assessment under
    section 15 or who is the subject of an order under section 32 upon the
    completion of 72 hours of detention in the psychiatric facility unless the
    attending physician has released the person, has admitted the person as an
    informal or voluntary patient or has admitted the person as an involuntary
    patient by completing and filing with the officer in charge a certificate of
    involuntary admission. R.S.O. 1990, c. M.7, s. 20 (3).

Authority
    of certificate

(4) An involuntary patient may be
    detained, restrained, observed and examined in a psychiatric facility,

(a) for not more than two weeks under a certificate of
    involuntary admission; and

(b) for not more than,

(i) one additional month under a first certificate of
    renewal,

(ii) two additional months under a second certificate
    of renewal, and

(iii) three additional months under a third or
    subsequent certificate of renewal,

that is completed and filed with the officer in charge
    by the attending physician. R.S.O. 1990, c. M.7, s. 20 (4).

Conditions
    for involuntary admission

(5) The attending physician shall
    complete a certificate of involuntary admission or a certificate of renewal if,
    after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder
    of a nature or quality that likely will result in,

(i)
    serious bodily harm to the patient,

(ii)
    serious bodily harm to another person, or

(iii)
    serious physical impairment of the patient,

unless the
    patient remains in the custody of a psychiatric facility; and

(b) that
    the patient is not suitable for admission or continuation as an informal or
    voluntary patient. R.S.O. 1990, c. M.7, s. 20 (5); 2000,
    c. 9, s. 7 (3, 4).

[]

Discharge
    of patients

34.
(1) A patient shall be discharged from a psychiatric
    facility when he or she is no longer in need of the observation, care and
    treatment provided therein.

Exception

(2) Subsection (1) does not
    authorize the discharge into the community of a patient who is subject to
    detention otherwise than under this Act. R.S.O. 1990, c. M.7, s. 34.

[]

Application
    for review by patient, etc.

39.
(1)  An involuntary patient, or any person
    on his or her behalf, may apply to the Board in the approved form to inquire
    into whether or not the prerequisites set out in this Act for admission or
    continuation as an involuntary patient are met. 2000, c. 9,
    s. 21 (1).

[]

Review
    of admission or renewal

41.
(1) On the hearing of an application, the Board shall
    promptly review the patients status to determine whether or not the
    prerequisites set out in this Act for admission as an involuntary patient
    continue to be met at the time of the hearing of the application. R.S.O. 1990,
    c. M.7, s. 41 (1); 1992, c. 32, s. 20 (6).

Confirming
    order

(2) The Board by order may
    confirm the patients status as an involuntary patient if the Board determines
    that the prerequisites set out in this Act for admission as an involuntary
    patient were met at the time of the hearing of the application. R.S.O. 1990,
    c. M.7, s. 41 (2); 1992, c. 32, s. 20 (6).

Rescinding
    order

(3) The Board by order shall
    rescind the certificate if the Board determines that the prerequisites set out
    in this Act for admission as an involuntary patient were not met at the time of
    the hearing of the application. R.S.O. 1990, c. M.7, s. 41 (3);
    1992, c. 32, s. 20 (6).