R v Conception: The Last Word Between Courts and Hospitals for Unfit Accused

Part XX.1 of Canada’s Criminal Code, RSC 1985, c C-46 [the Code], fundamentally altered the way a criminally accused person with a mental illness engages with the criminal justice system. This comprehensive new structure was a response to cases like R v Swain, 1991 1 SCR 933, in which Parliament recognized the need for a new statutory regime sensitive to the legal interests of the mentally ill accused and the safety of the public.

R v Conception, 2014 SCC 60 [Conception] brings one portion of Part XX.1 into sharp focus. When an accused is found unfit to stand trial because of mental illness (UST), Part XX.1 includes provisions for procedures designed to render the accused fit for trial. Among those provisions are sections 672.58 and 672.62(1) of the Code. The former allows a court to make a “treatment disposition”—an order that an accused undergo psychiatric treatment, with or without her consent, for a period less than 60 days. The latter section, 672.62(1), adds a caveat to the former: no treatment disposition can be made without the consent of the person in charge of the designated hospital or the person who is assigned responsibility for the accused’s treatment.

In this case, Justice Hogan of Toronto’s 102 Court made a treatment disposition u under section 672.58 that Mr. Conception undergo immediate psychiatric treatment, despite the respondent hospitals’ protests that no beds would be available for six days. The hospitals appealed the validity of Justice Hogan’s order on the ground that they did not consent to a particular part of that order, namely, that treatment must begin immediately.

The Issues

In Conception, the Supreme Court was faced with two divergent interpretations about the breadth of the consent requirement codified in section 672.62(1). The answer to this interpretive question raised a second question regarding the accused’s Charter rights. At para 12 of the decision, the Court phrased these two issues as follows:

(1) Does the consent requirement relate to the timing of carrying out the order or just to the treatment itself?

(2) If the consent requirement relates to the timing of carrying out the order, does the s. 672.58 order violate s. 7 of the Charter?

The accused argued for a narrow interpretation of the consent requirement. On this account, consent merely relates to the hospital’s willingness to provide treatment to the accused. Once the hospital consents to provide treatment, an order pursuant to 672.58 is not invalidated by a hospital’s objection to the timing of that treatment.

The respondent hospitals argued for a broader interpretation of the consent requirement that includes the timing of treatment. In their view, an order under section 672.58 cannot be valid unless the hospital consents to both the treatment and timing specified in that order.

Below the layers of statutory interpretation and arguments about the purposes of Part XX.1, a basic question was being litigated: in instances of scarce medical resources, who possesses the ‘final say’ concerning when an unfit accused will receive treatment? Or, put another way, when can a hospital justifiably refuse to treat an unfit accused?

Disposition, In Brief

In the result, a narrow 5-4 majority found that as a general rule, hospitals could refuse consent to any part of a treatment order, including the timing of treatment implementation. Generally hospitals, not courts, will decide when an unfit accused will undergo treatment. However, the majority did briefly sketch a constitutional exception to this rule: if it appears to a court that a hospital’s refusal to consent will have the effect of unconstitutionally limiting the accused’s section 7 Charter rights, that court may consider whether an order for immediate admission would be an appropriate remedy for the breach. The Charter ensures that judges will have the last word if an accused’s rights would otherwise be compromised.

The Reasons of the Majority 

The First Issue

The majority, led by Justices Rothstein and Cromwell, agreed with the respondent hospitals. On Issue (1), they held that the consent requirement does relate to the timing of the treatment implementation. If a hospital does not agree to treat an unfit accused in the timeframe specified by the order, that order is invalid. They reached this conclusion using two separate arguments.

The first argument is an interpretive one. The majority began by noting that Issue (1) raises a question of statute interpretation. Applying the modern principle of statutory interpretation, and through a series of complex sub-arguments, the majority held that the impugned provisions led to the conclusion that a hospital’s consent to a disposition order made under section 672.58 must necessarily include the timing in which treatment is to be implemented (Conception at paras 14-24). For brevity’s sake, the particular details of this argument will not be rehearsed here.

The second argument is based in a set of broader contextual considerations that reinforce the interpretive finding.  The first is a recognition of certain practical realities. An order under section 672.58 directs that the treatment be carried out without the accused’s consent. The imposition of involuntary treatment includes a number of important safety considerations necessary to protect the accused, other patients, staff, and the public (para 35).

These precautions include things like single occupancy rooms, staff with specialized training, and the presence of perimeter security. The majority holds that the narrow interpretation of the consent provision creates the possibility that a hospital could be forced to provide treatment when these facilities are not available, risking the safety of all parties involved.

The second broader contextual consideration is that the appellant’s interpretation provides courts with powers beyond their ken. An interpretation of the consent order that excludes timing would effectively allow courts to make medical triage decisions.

The majority suggests that in making an immediate or “forthwith” treatment disposition, a judge decides who will not get treatment forthwith just as they are deciding who will (para 38). These decisions would be made without the benefit of being informed about the needs of other patients being displaced.

The majority adds one more contextual consideration: on pragmatic grounds, it is impractical to envision the judges’ role along the lines sketched by the appellant.  A broad interpretation would require courts to interface extensively with health care providers by routinely inquiring into matters of bed availability or the hospital’s ability to safely carry out treatment. This would constitute real misuse of limited judicial and medical resources.

At paragraph 39, the majority writes that

[i]t does not strike us as likely that this scheme intended that the scarce resources of both the courts and the health care system should be devoted to judges micromanaging medical triage decisions and health care providers defending their triage decisions in court.

For these reasons, the majority holds that the broad interpretation of the respondents is correct: the consent requirement in section 672.62(1) relates to the timing of the order, as well as willingness to treat the accused.

We can now turn to the second issue—whether the consent provision, so interpreted, infringes the accused’s section 7 rights under the Charter. 

The Second Issue 

Interestingly, the majority takes relatively little time to consider the constitutional implications of their decision on the first issue.  They begin by agreeing with the Court of Appeal’s finding in The Person in Charge of the Centre for Addiction and Mental Health et al v Her Majesty the Queen et al, 111 OR (3d) 19 [Conception ONCA], that the consent requirement does not deprive the accused of procedural fairness and that it is not unconstitutionally vague or arbitrary.

With regards to section 7, the Court then agrees with the respondent CAMH that any potential violation of section 7 rights will result only from a hospital’s particular exercise of its discretion to withhold consent. That is, the section granting that discretion, section 672.62(1), does not itself represent a danger to the accused’s rights (para 41).

This interpretation contemplates that certain invocations of section 672.62(1) following a court’s disposition order under section 672.58 may unconstitutionally deprive an unfit accused of her rights. Accordingly, at paragraph 43, the majority sketches a residual discretion for the presiding judge to order an immediate admission:

A judge proposing to make a disposition is entitled to consider, in an appropriate case, whether a refusal of consent will have the effect of unconstitutionally limiting the accused’s rights to life, liberty or security of the person in a fashion that does not accord with the principles of fundamental justice. If so persuaded, the judge would also be entitled to consider whether ordering an immediate admission would constitute an appropriate and just remedy for that breach.

The case of Mr. Conception was not an appropriate case for the employment of this discretion. There was no evidence that a six-day delay in starting treatment might impair the likelihood of the accused becoming fit to stand trial, or that the delay infringed his right to life, liberty, and security of the person (para 42).

The majority went on to state that although such instances where an immediate admission order will be rare, there must be a manner in which a court can protect the rights of the accused. Justices Rothstein and Cromwell write that the “Charter assures that judges, and not the person in charge of the hospital… will have the last word in terms of the disposition” in instances where the accused’s Charter rights would otherwise be compromised (para 43).

Comments and Conclusion

In the result, the decision strikes a balance between the Charter rights of the unfit accused and judicial deference to matters outside a court’s purview. Courts are not in the business of determining an accused’s medical interests. For that reason, and as a general rule, they should defer to the judgment of a health care provider with regards to those interests. Courts are, however, in the business of determining and protecting the legal interests of an unfit accused. Conception recognizes that in certain narrow instances, courts must be able to order immediate treatment where such treatment is necessary to safeguard an unfit accused’s Charter rights.