Brian Conception v. Her Majesty the Queen, et al.

(Ontario) (Criminal) (By Leave)


Criminal law - Right to security of person (s. 7), Right to liberty (s. 7).


Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Charter of Rights and Freedoms - Right to security of the person - Right to liberty - Fundamental justice - Treatment dispositions - Trial judge orders treatment forthwith of accused found unfit to stand trial - Commencement of treatment delayed 6 days for availability of bed - Whether the Court of Appeal erred in holding that the consent required of a hospital by s. 672.62 of the Criminal Code, R.S.C. 1985, c. C 46, relates to the timing of the s. 672.58 order and not just to the treatment concerns identified by s. 672.59 - In the alternative, whether requiring a hospital’s consent for the issuance of a s. 672.58 order violates s. 7 of the Charter.

The appellant 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. When asked about security concerns, a psychiatrist testified that treatment at Oak Ridge, a facility at the Mental Health Center Penetanguishene, would make more sense than the Center for Addiction and Mental Health, another hospital with which he had experience. The Crown stated that a bed would be available at Oak Ridge no later than the 19th of April which was 6 days after the date of the hearing. The hearing judge issued a “forthwith” treatment order pursuant to s. 672.58 of the Criminal Code directing that the appellant be taken directly to the Center for Addiction and Mental Health or a designate and not to a jail or a correctional facility under any circumstances. Court services delivered the appellant to the Mental Health Center Penetanguishene and left him in a hallway. The respondent hospitals appealed the order. Notwithstanding that the appellant thereafter was treated, eventually returned to court, and the charge stayed by the time the appeal began, the Court of Appeal proceeded to determine that ss. 672.58 and 672.62(1)(a) of the Criminal Code infringe the rights to liberty and security of the person guaranteed under s. 7 of the Charter but the infringement is in accordance with principles of fundamental justice. The Court of Appeal held that the respondents’ consent was not given for the treatment order as was required under 672.62(1)(a) of the Criminal Code. The treatment order was set aside.