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Province seeks leave to appeal class action certification

|Written By Jennifer McPhee

The Ministry of the Attorney General is seeking leave to appeal a judge’s recent decision to certify a class action over the practice of jailing mentally ill accused persons while they wait for medical assessments, Law Times has learned.

The government has been told jailing mentally ill accused persons awaiting court ordered medical assessments is unconstitutional, but the practice continues, says Joseph Obagi.

The class potentially includes more than 2,000 people in Ontario.

A court may order an assessment under s. 672.11 of the Criminal Code, if it has reasonable grounds to believe an assessment is necessary to determine. For instance, if accused persons are unfit to stand trial or not criminally responsible for their actions.

According to the plaintiff’s statement of claim in Sylvie Phaneuf and Her Majesty the Queen in Right of Ontario, the government has a legal obligation to immediately send persons subject to these orders to a hospital or treatment facility. But instead, people have been incarcerated while awaiting assessments until hospital beds become available, says Ottawa lawyer Joseph Obagi, who is representing the plaintiff class.

This practice continued despite a Nov. 10, 2004 ruling in R v. Hussein that declared the practice unconstitutional and gave the government six months to fix the problem by making sure there are enough hospital beds.

Phaneuf, the representative plaintiff, was charged with criminal harassment on Nov. 1, 2005. The charge arose because of her then-infatuation with a singer in a local band and was a result of her psychiatric issues, says Obagi.

A judge ordered her to be remanded in custody for an assessment at a hospital or treatment facility to determine whether she was criminally responsible.

Instead, she remained at a regional detention centre for 16 days.

According to the statement of claim, Phaneuf was subjected to “deplorable” conditions in jail, was verbally and physically assaulted by other residents, and was moved to maximum security because of a shortage of general population beds.

“Despite her vulnerable and precarious position, the Ontario government has failed to ensure her physical and psychological safety,” says the claim.

According to an Ottawa Citizen report, others in similar situations have died or become too sick to stand trial.

Phaneuf was eventually found not criminally responsible for her actions.

Ontario Superior Court Justice Michel Charbonneau concluded on Aug. 28 that the claim discloses a cause of action and meets the other elements necessary for certification of a class proceeding.

He found it is arguable that the government owes a fiduciary duty and a general duty of care to the plaintiff and that she is warranted in pleading at this stage in the proceeding that the government breached her Charter rights.

However, he rejected the notion that the claim establishes a cause of action for unlawful detention or false imprisonment because, although a judge intended the plaintiff to be brought to the hospital for assessment, there was no doubt he was aware when he signed the assessment order and a remand warrant that they provided for detention at the regional detention centre.

Charbonneau also rejected the plaintiff’s pleading that the defendant’s actions were a breach of good faith because he did not know of such a duty existing in law.

Along with other objections, the government argued at the time that the statement of claim fails to disclose a cause of action on the basis of breach of fiduciary duty and that Hussein does not stand for the wide principle relied on by the plaintiff.

Ministry of the Attorney General spokesperson Brendan Crawley says he can’t discuss the details of the case because it is under appeal.

But, according to the government’s motion for leave to appeal filed on Sept. 4, the government is appealing Charbonneau’s decision on a number of grounds, including that the court made errors in law and made decisions that conflict with other court decisions.

Unless the decision is successfully appealed, Obagi will seek $50 million in damages on behalf of the affected class.

The class includes mentally ill people who are or were incarcerated while awaiting court-ordered medical assessments following the grace period allowed in the Hussein decision.

“This is a case that’s based on the fact that the government already was told what they were doing was unconstitutional,” says Obagi. “They didn’t appeal the Hussein decision, but continued the practice.

“In those circumstances, we will be arguing that this is ripe for an award of punitive damages to make sure that governments don’t go down this road ever again,” he says.

Charbonneau also ordered the government to provide Obagi with a complete list of the names and addresses of all known class members - an order the government is also appealing.

Provincial Court judges have been put in an impossible position because of a lack of resources, says Obagi.

“They have absolutely no choices because they’ve ordered the assessment and the Crown tells them there’s no bed so you’ve got to send them to jail,” he says. “And the only thing they can do is say, ‘Okay send her to jail, but I want a report to find out what’s happening in the interim.’”

Judges can’t release the accused person because they are under an in-custody assessment order, and they can’t make an order against a hospital, he adds.

The problem boils down to money and prioritizing resources, he says.

“You are not supposed to put [these people] in jail,” he says. “If you’ve got emergency rooms that are overbooked, what do you do with persons that are in need of medical care? You don’t send them to local prisons. You deal with that.”

Mentally ill people who come into contact with the criminal justice system are one of the most vulnerable groups in society and the least likely to fight back, he says. Because of this, he notes, they are the easiest ones to sweep under the carpet, but now the government is being forced to deal with them.

“Did [the government] make a decision in this case that the people being affected are the least likely to have an impact on the government of the day? I think they did,” says Obagi. “If these persons had a lot more power in today’s society, they wouldn’t be treated like this.”

William Murray, the criminal lawyer who won the Hussein case, is now running as an NDP candidate in the upcoming provincial election, partly because of the Hussein case, he says.

The Liberal government has now increased the number of secure forensic assessment beds, but it did so only after Obagi’s action was initiated, said Murray.

“Subsequent to Mr. Obagi bringing his action for damages against the government, it became evident that breaching people’s constitutional rights may cost more than dealing lawfully with the situation,” says Murray. “The McGuinty Liberals took this step only after being pushed hard and not because they care about people who suffer from mental illnesses.

“It’s a disgrace. People shouldn’t be jailed without lawful authority. It’s unbelievable that it’s taken this long. Even when the judge himself gave them six months, they basically ignored it,” he says.

In the April 20, 2006 case R. v. Rosete, which involved a similar situation, Ontario Court Justice Richard Schneider reiterated the sentiments of other judges by saying the practice runs afoul of charter guarantees and cannot be tolerated.

But this has become the norm, not the exception, and the waiting times for hospital beds have recently lasted up to five weeks, Schneider said at the time.

He made a declaratory order that detaining Romeo Rosete in jail while he was the subject of an assessment order was unlawful and ordered him to be delivered to a the Centre for Addiction and Mental Health.

“It is obviously perverse and inexcusable in our civilized society that we find ourselves with a system which jails mentally disordered individuals who are in need of assessment or treatment,” wrote Schneider.

Rosete’s lawyer Delmar Doucette says the reason this practice has gone on for so long is because these unlawful detentions don’t last long enough to grab the court’s attention.

“So only if someone moves very quickly can they get the matter before the court before the situation starts to correct itself, so we have a multitude of people spending 30 days in jail that they never should have spent,” he says. “But we have a system that doesn’t move fast enough usually to correct that within the 30 days.”

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