Nelson v. Livermore

Rodney Nelson sought judicial review of his involuntary admission to a psychiatric hospital under Ontario’s Mental Health Act (“MHA”) and an order for his immediate release due to rights infringements. Nelson had a lengthy history of crimes with many violent offences, including sexual offences against women and children.

A psychiatrist completed an application for psychiatric assessment (Form 1) as Nelson’s prison sentence was ending. Nelson argued that this Form 1 was used to maintain his custody and continue his sentence. He further stated that it was not for a legitimate mental health purpose.

Nelson argued that he did not have a mental disorder and that his confinement breached ss. 7, 9, 11(h), and 12 of the Canadian Charter of Rights and Freedoms (“the Charter”). These guarantee rights to liberty, not to be arbitrarily detained or imprisoned, not to be punished multiple times for the same offense, and not to be subjected to cruel and unusual punishment.

Psychiatrists believed Nelson suffered from mental disorders (i.e. paraphilia, severe personality disorder, psychotic symptoms) that would likely result in serious bodily harm to another person. Despite multiple reviews by the Consent and Capacity Board (“the Board”), Nelson remained detained in a psychiatric hospital. To conform with the Canadian constitutional law, changes were made to the MHA, and Nelson was entitled to a new hearing by the Board under the new regime. However, he refused to participate pending the final outcome of this appeal.

Nelson appealed the Board’s decision to the Ontario Superior Court. The Superior Court dismissed the appeal from the Board’s decision, and Nelson appealed to the Ontario Court of Appeal

The Court upheld the Board’s decision of involuntarily detainment. The Court held that there was ample evidence to support the conclusion that Nelson suffered from a mental disorder. It held that the Board properly relied upon historical information, as well as more current information. Additionally, it has been recognized that the Board may admit hearsay evidence.

The Court held that Form 1 was compliant. The psychiatrist was thorough in his inquiries and careful in his analysis. A patient cannot defeat the MHA by failing to participate in the assessment process. The wording of s. 15 of the MHA does not prevent a physician from completing a Form 1 in the absence of a triggering event. If a triggering even is required, an incident with Nelson’s parole officer was sufficient.

The Court held that Nelson’s treatment under the MHA did not violate s. 7 of the Charter because it was not arbitrary or grossly disproportionate. Nelson was not detained for any improper purpose but because he had a mental disorder likely to result in serious bodily harm to another, which he lacked insight into, refused to receive treatment for, and resisted all attempts to manage. The law’s purpose was connected to its effect on Nelson. The restrictions placed on Nelson were not grossly disproportionate given the importance of protecting public safety and the dire consequences of a mistake.

The Court held that Nelson’s detention was lawful under the MHA. A lawful detention is not “arbitrary” within the meaning s. 9 of the Charter.

The Court held that under the MHA Nelson is not being punished, making s. 11(h) inapplicable. That both the Criminal Code and MHA promote public safety through detention does not instill the MHA with a punitive or penal purpose.

The Court held that s. 12 was not infringed. The record indicated that Nelson had many formal hearings before the Board, each providing the opportunity for his release from detention. Each time, the Board affirmed Nelson’s involuntary status. Since Nelson’s last hearing, the MHA was amended to provide the Board with powers to more effectively address the circumstances of long-term detainees such as Nelson.

“While the appellant’s approach is multi-faceted, his arguments coalesce in a single grievance – he is the victim of psychiatric gating (i.e. the use of the MHA to civilly detain an individual at the end of his or her prison sentence). This is at the heart of his challenge to the Board’s decision and it drives each of his Charter arguments.” (Para 44)

“All of the appellant’s arguments must fail for the same reason – he has failed to establish that his detention runs afoul of the statutory criteria for involuntary commitment, or that the MHA has been used against him for any improper purpose.” (Para 45) 

“Time and again, the Board has confirmed the appellant’s status as an involuntary patient. The appellant has done nothing, or next to nothing, to address the chorus of decisions that conclude that, untreated and unwilling to address his underlying mental disorders, he presents a serious risk to others.” (Para 46)

As this court held in Thompson v. Ontario (Attorney General), 2016 ONCA 676, 134 O.R. (3d) 255, the MHA has the dual purpose of promoting health and protecting the public. The appeal judge found that the appellant was not detained for any improper purpose. He was, and continues to be, detained because he has a mental disorder that will likely result in serious bodily harm to another, which he lacks insight into, refuses to receive treatment for, and resists all attempts to manage. On this record, the MHA was used in a manner that is consistent with its purposes. There is no disconnection between the law’s purpose and its effect on the appellant. (Para 108)