R.C. v. Klukach
[Indexed as: C. (R.) v. Klukach]
2018 ONSC 7415
Superior Court of Justice, Perell J. December 11, 2018
Mental health — Consent and Capacity Board — Procedural fairness
— Appellant challenging his involuntary admission to mental hospital —
Consent and Capacity Board acceding to appellant’s request to represent himself — Appellant experiencing significant delusions at time of
hearing and clearly incapable of representing himself — Board instructing and assisting appellant — Board denying appellant procedural fairness by not also appointing amicus curiae to assist it — Appellant’s
constitutional right to represent himself not precluding board from
The appellant was suffering from schizoaffective disorder. He was involuntarily
admitted to the Centre for Addiction and Mental Health, and his attending psychiatrist found him to be incapable of consenting to antipsychotic medication. He
challenged both the involuntary admission and the finding of incapacity. He was
initially represented by counsel, but the Consent and Capacity Board acceded to
his request to represent himself. After a hearing, the board confirmed the finding
that he was incapable of consenting to treatment. The appellant appealed.
Held, the appeal should be allowed.
The appeal was moot as the appellant had now been discharged from CAMH.
However, it was in the interests of justice to hear it, as the matter of the role and
responsibility of the board in providing due process to self-represented parties was
a matter of public interest and importance.
The board took a proactive role and instructed and assisted the appellant
throughout the hearing. However, the appellant was manifestly incapable of representing himself, and the board denied him procedural fairness by not also appointing amicus curiae to assist it. The appellant’s constitutional right to represent
himself did not preclude the board from appointing amicus. That was not to suggest that an amicus curiae must be appointed in every case before the board where
a party wishes to exercise his or her right to represent himself or herself. There
will be cases where, with or even without the assistance of the board, a person will
have a procedurally fair hearing without the appointment of amicus curiae. However, this was not one of those cases.
Hillier v. Milojevic,  O.J. No. 3457, 2010 ONSC 4514, 191 A.C.W.S. (3d)
1328 (S.C.J.); R. v. Romanowicz (1999), 45 O.R. (3d) 506,  O.J. No. 3191,
178 D.L.R. (4th) 466, 124 O.A.C. 100, 138 C.C.C. (3d) 225, 26 C.R. (5th) 246,
45 M.V.R. (3d) 294, 43 W.C.B. (2d) 339 (C.A.); R. v. Swain,  1 S.C.R. 933,
 S.C.J. No. 32, 125 N.R. 1, J.E. 91-765, 47 O.A.C. 81, 63 C.C.C. (3d) 481,
5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582, consd
Other cases referred to
A. M. (Re), 2004 CanLII 6726 (ON. C.C.B.); B. (Re), 2009 CanLII 54132 (ON.
C.C.B.); Baker v. Canada (Minister of Citizenship and Immigration), 
2 S.C.R. 817,  S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412,
REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d)
777; Borowski v. Canada (Attorney General),  1 S.C.R. 342,  S.C.J.