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TREATMENT ORDER

R. v. Conception, 2014 SCC 60 (CanLII)

...                    Criminal law — Mental disorder — Dispositions by a court or review board — Treatment disposition — Accused declared unfit to stand trial — Hearing judge issuing a “forthwith” treatment order without consent of treating hospital — Whether a court may make a disposition order directing that treatment begin immediately even though the hospital or treating physician does not consent to that disposition — Whether the consent requirement relates to the timing of carrying out the order or just to the treatment itself — Criminal Code, R.S.C. 1985, c. C-46, ss. 672.58, 672.62(1)(a)

                   Constitutional law — Charter of Rights and Freedoms — Right to life, liberty and security of the person — Criminal law — Mental disorder — Treatment disposition — Whether requiring hospital’s consent for all provisions of the treatment disposition would infringe accused’s right to procedural fairness — Whether treatment disposition provisions of Criminal Code are unonstitutionally vague or arbitrary — Charter of Rights and Freedoms, s. 7 — Criminal Code, R.S.C. 1985, c. C-46, ss. 672.58, 672.62(1)(a)

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

                   Held:  The appeal should be dismissed.

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

                   The hospital or person in charge of treatment must consent to all the terms of a disposition ordering treatment and, if there is no consent, the order cannot be made.

Jim O'Neil, LL.B.

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