The Ontario Court of Appeal recently released an interesting decision involving that funny-sounding concept, mootness. Indeed, the case involved a “stale” matter arising from a non-adversarial process where ultimately there was no actual lis between the parties. Not the sort of thing our legal system is accustomed to dealing with every day.
The factual framework in Mental Health Centre Penetanguishene v. Ontario, 2010 ONCA 197 was this: a person detained at the Mental Health Centre Penetanguishene (MHCP) as a person found not criminally responsible on account of mental disorder had a disposition hearing before the Ontario Review Board (which annually reviews the status of every person so found). At that hearing it was agreed by all, and so ordered, that the person in question be transferred to Centre for Addiction and Mental Health (CAMH) and that, there he be detained in the minimum security unit. The treating psychiatrist at MHCP told the Board that the inmate should have the same level of security at MHCP pending his transfer that he would have at CAMH.
The transfer was not effected for six months. Watt J.A., who wrote the decision, led off with that sad fact:
In an ideal world, the disposition made by a provincial Review Board directing transfer of a mental disorder detainee from one hospital to another would take place immediately. Not so in the harsh light of reality in the first decade of 21st century Ontario.
And — which became the subject of the dispute — the inmate remained at MHCP without any privileges,
because the disposition said nothing about his interim custody there and nothing about any interim privileges he might be afforded while awaiting transfer.
 The issue raised on this appeal has to do with the duty of the Board to include directions as to the interim custody, and available interim privileges, in a disposition that involves the transfer of a detainee from one hospital to another.
The hospital at Penetanguishene appealed the Board’s decision, effectively seeking direction concerning its power to grant the inmate privileges even though he was legally detained under the original warrant. However the inmate’s transfer occurred prior to the hearing of the appeal, raising as a preliminary matter the issue of mootness.
Watt J.A. refers to and applies the principles laid down in Borowski v. Canada (Attorney General), 1989 CanLII 123 (S.C.C.), the Court of Appeal deciding ultimately to ignore the mootness of the issue on the grounds that the issue of interim custody had and continues to have social importance and that because the issue was alive for a short period of time it was “largely evasive of appellate review.” The Court ultimately ruled that the failure of the Board to address the interim custody of the inmate was “at once unreasonable and legally wrong.”
It was never made clear why the Ministry of the Attorney General resisted the import of the appeal. Would it have been impractical or improper for the Ministry to adjust the policy of the Board without requiring the Court of Appeal to direct it? Are there good policy reasons why the Board should not be expected to take into account the fact that transfers may not operate promptly?