Canada: Ontario Court Of Appeal Summaries (August 14-18)

Last Updated: August 24 2017
Article by John Polyzogopoulos

Good afternoon,

This might have been the quietest week at the Ontario Court of Appeal since we started this blog a few years ago. There was only one substantive decision, E.S v. Joannou, 2017 ONCA 655, an administrative law decision. The court determined in that case that the Consent and Capacity Board, which reviews the involuntary admission of patients to mental health facilities or administering of treatment, does not have the jurisdiction to declare any portions of its governing legislation, the Health Care Consent Act or the Mental Health Act, unconstitutional, nor does it have the power to grant a section 24 Charter remedy for breach of any Charter rights. While some administrative tribunals are "courts of competent jurisdiction" for the purposes of applying the Constitution Act, 1982 and the Charter, in this case, the legislature had specifically excluded constitutional jurisdiction in the Board's enabling statute. The patient's remedy for the breach of constitutional rights in such cases is by way of application to the Superior Court rather than to the Board.

Have a great weekend.

John Polyzogopoulos
Blaney McMurtry LLP
Tel: 416 593 2953

Table of Contents

Civil Decisions

E.S v. Joannou, 2017 ONCA 655

Keywords: Administrative Law, Constitutional Law, Mental Health Law, Jurisdiction, Consent and Capacity Board, Mootness, Substitute Decisions Act, Mental Health Act, Health Care Consent Act, Notice of Constitutional Question, Courts of Justice Act, s. 109, Canadian Charter of Rights and Freedoms, s. 7, Charter Remedies, s. 24(1), Constitution Act, 1982, s.52(1) (Supremacy of Constitution), R. v. Conway, 2010 SCC 22, R. v. Smith, 2004 SCC 14, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342

For Criminal Decisions, click here.

Civil Decisions

E.S v. Joannou, 2017 ONCA 655

[Rouleau, Pepall and Roberts JJ.A.]


K Bryan, for the appellant
H Schwartz and P Ryan, for the respondent Attorney General of Ontario
P-E Veel and D Glatt, for the respondent Dr. Jason Joannou
K R Spector, for the intervener ARCH Disability Law Centre

Keywords: Administrative Law, Constitutional Law, Mental Health Law, Jurisdiction, Consent and Capacity Board, Mootness, Substitute Decisions Act, Mental Health Act, Health Care Consent Act, Notice of Constitutional Question, Courts of Justice Act, s. 109, Canadian Charter of Rights and Freedoms, s. 7, Charter Remedies, s. 24(1), Constitution Act, 1982, s.52(1) (Supremacy of Constitution), R. v. Conway, 2010 SCC 22, R. v. Smith, 2004 SCC 14, Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342


The appellant was admitted to the Centre for Addiction and Mental Health ('CAMH') out of concern for the deterioration of her physical health and mental state. The next day, a Form 3 certificate of involuntary admission, under which a patient is detained for up to two weeks, was issued by a CAMH psychiatrist on the ground that the appellant was refusing to eat due to paranoid thoughts about food.

Two days later, the appellant applied to the Board to review the finding of incapacity. On that same day the respondent physician, Dr. Joannou, assumed care of the appellant and proposed treatment with further anti-psychotic medication. The Public Guardian and Trustee, acting as the appellant's substitute decision-maker, gave its consent to treatment, but when Dr. Joannou sought to administer the medication the appellant refused. Following the refusal, she was placed in four-point restraints and forcibly injected with paliperidone, a long-acting anti-psychotic medication. The following day, the appellant applied to the Board for a review of her involuntary status, and as part of that review claimed that the paliperidone injection was unlawful.

The appellant gave notice that she was raising Charter issues, including the question of the Board's Charter jurisdiction, and she served a notice of constitutional question pursuant to s. 109 of the Courts of Justice Act. The appellant asked the Board to consider: whether it had jurisdiction to determine that the injection was unlawful and a violation of her s. 7 Charter rights; and if it was, whether the Board had jurisdiction to grant a remedy under s. 24(1) of the Charter.

In response to the appellant's notice of constitutional question, the Board concluded that it did not have the power to decide questions of law, and, even if it did, the jurisdiction to decide constitutional questions had clearly been withdrawn. The appellant appealed the Board's decision to the Superior Court.

By the time her appeal was heard in the Superior Court, the appellant had been discharged. As a result, she changed her requested remedy. She asked the court to issue a declaration that the injection had violated her s. 7 Charter rights. She also sought rescission of the certificate of involuntary admission. The Superior court dismissed the request for a declaration on the basis that it was not sought before the Board nor mentioned in the notice of appeal. Further, the judge declined to rescind the certificate, finding that the issue was moot, as the certificate had already expired. The appeal judge ordered the appellant to pay partial indemnity costs to Dr. Joannou on the basis that it was fundamentally unfair to have sought a remedy personally against the physician for the first time on appeal.


(1) Is the appeal moot, and, if so, should the court hear the appeal nonetheless?

(2) Does the Consent and Capacity Board have the jurisdiction to grant remedies under s. 24(1) of the Canadian Charter of Rights and Freedoms?

(3) Did the July 10, 2014 injection violate the appellant's s. 7 Charter rights?


Appeal dismissed.


(1) Yes, the appeal is moot, but the court should hear it nonetheless. The appeal is moot because the appellant has been discharged and therefore it would have no practical effect on the rights of the parties. The court held that it should hear the appeal nonetheless, as it presents special features which make it in "in the interests of justice" to decide the appeal (see R. v. Smith, 2004 SCC 14). The court's exercise of discretion is guided by assessing the extent to which the case engages any of the main rationales underlying the doctrine of mootness, namely (a) the need for an adversarial context; (b) the concern for judicial economy; and (c) sensitivity to the court's adjudicative role (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342). Applying these rationales to the case at bar, the court held that (a) that the adversarial context that prevailed below continues to exist on appeal; (b) that 'judicial economy' favours resolving this issue, as it raises an issue of public, social and constitutional importance; and (c) with respect to the court's adjudicative role, there is an ample record before the court to decide the appeal in this case; and, the reasons for deciding whether the Board has s. 24(1) jurisdiction is compelling.

(2)No. Pursuant to the test set out by the Supreme Court of Canada in R. v. Conway, 2010 SCC 22, tribunals that can decide questions of law are presumed to be courts of competent jurisdiction for the purpose of s.24(1) of the Charter. This presumption can be rebutted where it is clearly demonstrated that the legislature intended to exclude Charter remedies from the tribunal's decision.

A tribunal only has the powers that are explicitly or implicitly conferred on it by statute. In accordance with Conway, when a remedy is sought from an administrative tribunal under s. 24(1) of the Charter, a three-step process is to be adopted in order to determine whether the tribunal has the jurisdiction to grant s. 24(1) remedies:

(i) Determine whether the tribunal can decide questions of law.

(ii) Consider whether the power to grant Charter remedies generally has, explicitly or by clear implication, been excluded by statute.

(iii) Determine whether the tribunal has the power to grant the specific remedy requested.

Applying the Conway test to the present case is not straightforward because the legislature has precluded the Board (via s. 70.1(1) of the Health Care Consent Act) from finding a law unconstitutional pursuant to s. 52(1) of the Constitution Act, 1982.

Prior to Conway, the tests for determining whether an administrative tribunal had jurisdiction to apply s. 52(1) of the Constitution Act, 1982, and whether it had s.24(1) jurisdiction, were distinct. In Conway, the Supreme Court of Canada decided to merge these two separate lines of authority, as the court reasoned that if there is s. 52(1) jurisdiction, then s. 24(1) jurisdiction should logically follow unless withdrawn, explicitly or by clear implication. In the present case, because s. 52(1) jurisdiction is precluded by statute, the logical flow has been broken.

This then begs the question: What approach is to be taken when the legislature has excluded (by statute) the Board's power to find legislation invalid under s. 52(1) of the Constitution Act, 1982? In the courts view, it signals that the Board's power to decide questions of law is deemed to be diminished.

The appellant and intervener argued that by specifically excluding s. 52(1) jurisdiction, and remaining silent with respect to s. 24(1) jurisdiction, the legislature must logically have intended that the Board have s. 24(1) authority. The court disagreed. In the court's view, by excluding s. 52(1) jurisdiction, the legislature expressed an intention that the Board be bound by its statute; this suggests that similar limits were intended with respect to the remedies or dispositions that the Board is empowered to grant. On balance, the court views the legislature's removal of s. 52(1) jurisdiction as indicative but not determinative of a legislative intention to also remove s. 24(1) jurisdiction.

The court concluded that the legislature clearly intended that s.24(1) jurisdiction be removed from the Board. This conclusion was reached in light of the fact that s. 52(1) jurisdiction was removed, but also for several other reasons, including: the strict timelines under which the board operates; the limited dispositions available to the Board; the composition and expertise of the Board; the provisions for the appeal of the Board's decisions; and the fact that, in making its decisions, the Board can and does take Charter rights into account.

For these reasons the court concluded that the Board is not a court of competent jurisdiction under s.24(1) of the Charter. But this does not mean that a person, such as the appellant, who considers herself aggrieved, has no remedy. If appropriate, relief can be sought by way of a Charter application in Superior Court or through other less cumbersome processes for addressing any concerns, such as complaints to the professional or regulatory bodies that oversee the relevant parties.

(3) In light of the conclusion that the Board does not have Charter jurisdiction, the court did not deal with this issue.

Criminal Decisions:

R v. M.B. (Publication Ban), 2017 ONCA 653

[Juriansz, Pepall and Trotter JJ.A.]


C S Martell, for the appellant
C L Tier, for the respondent

Keywords: Criminal Law, Evidence, Eyewitness Identification, R v. Berhe, 2012 ONCA 716, R v. Brown, 215 C.C.C. (3d) 330 (Ont. C.A.)

R v. C.C. (Publication Ban), 2017 ONCA 656

[Doherty, Blair and Rouleau JJ.A.]


E Perchenok, for the appellant
K Rawluk, for the respondent

Keywords: Criminal Law, Evidence, Ineffective Assistance of Counsel

R v. Lee, 2017 ONCA 654

[Weiler, Hourigan and Pardu JJ.A.]


A S Boni, for the appellant
B Puddington, for the respondent

Keywords: Criminal Law, Possession of Cocaine for the Purpose of Trafficking, Unreasonable Search and Seizure, Investigative Detention, Warrantless Search, Criminal Code, s. 117.02(1), Exclusion of Evidence at Trial, Canadian Charter of Rights and Freedoms, ss. 8 and 24(2), R v. Grant, 2009 SCC 32, R v. Waterfield, [1964] 1 Q.B. 164, R v. Mann, 2004 SCC 52, R v. Peterkin, 2015 ONCA 8

R v. McLean, 2017 ONCA 657

[Doherty, LaForme and Rouleau JJ.A.]


M Halfyard, for the appellant
J McKee, for the respondent

Keywords: Criminal Law, Possession of a Firearm and Ammunition, Reasonableness of Verdict

R v. Pammett, 2017 ONCA 658

[Doherty, LaForme and Rouleau JJ.A.]


B H Greenspan and P R Hamm, for the appellant
N Dennison, for the respondent

Keywords: Criminal Law, Perjury

R v. Asmann, 2017 ONCA 659

[Doherty, LaForme and Rouleau JJ.A.]


R Litkowski, for the appellant
A Baiasu, for the respondent

Keywords: Endorsement, Criminal Law, Robbery, Imitation Firearm, Criminal Code, s. 2

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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John Polyzogopoulos
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