Date:
20130523
Docket:
T-1318-12
Citation:
2013 FC 545
Vancouver, British Columbia,
May 23, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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CHRIS BRAZEAU
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Chris
Brazeau (the Applicant) seeks judicial review of a decision of the Canadian
Human Rights Commission (the Commission) dated June 5, 2012, made pursuant to
s. 44(3) of the Canadian Human Rights Act, RSC 1985, c H-6 (the Act),
wherein the Commission decided not to refer his complaint to the Canadian
Human Rights Tribunal (the Decision). His complaint was made on two
grounds: (i) failure to accommodate (or treat) his disability – Attention
Deficit/Hyperactivity Disorder (ADHD), and (ii) failure to accommodate his
religion. The claim based on religious grounds has been settled.
[2]
The
Applicant is a federal inmate whose incarceration began in 2003 at Stony
Mountain Institution in Manitoba. On July 20, 2005, he was moved to the Kent
Institution in British Columbia (Kent) and from there he was transferred to the
Regional Treatment Centre (RTC) in Abbotsford. At the RTC, he was under
the care of Dr. Martha Healey. She is a Psychiatrist and is also the Director
of the RTC. On October 17, 2006, she prescribed Ritalin to treat the
Applicant’s ADHD. Ritalin is one of several brand names for medicine
comprised of methylphenidate. It, together with Vyvanse, which is comprised of
lisdexamfetamine, and Biphentin, another methylphenidate, treat ADHD by
stimulating the central nervous system. I will refer to them as “Stimulants”.
[3]
The
Applicant experienced positive results with Ritalin. However, on April 11,
2008, Dr. Healey cancelled his prescription because she was told that
Correctional Services Canada believed that he had been providing his Ritalin to
other inmates. The Applicant was promptly returned to Kent and received no treatment for his ADHD for five months. Four of those months were
spent in segregation.
[4]
Dr.
Allan Moore is the general practitioner who supervised the Applicant’s care
after his return to Kent. Sometime in September 2008, he prescribed Strattera
for the Applicant’s ADHD. While recognized as a treatment for ADHD, Strattera
is not a Stimulant and did not alleviate the Applicant’s ADHD symptoms. The
Applicant took this drug for approximately six weeks but discontinued its use
due to side effects.
[5]
Twelve
months passed (again the Applicant spent a significant portion of this time in
segregation) before he was offered any other medication for his ADHD. The offer
came from a psychiatrist called Dr. Siani who recommended against
Stimulants and suggested Strattera which the Applicant had earlier
rejected because of the side effects. Dr. Siani also suggested clonidine and venlafaxine.
However, they do not treat ADHD. Accordingly, in my view, it was reasonable
for the Applicant to refuse them.
[6]
After
two more months without treatment for his ADHD, the Applicant was seen by
Dr. Preece on March 22, 2010. She is also a psychiatrist and she
recommended Stimulants. This recommendation in favour of prescribing a
Stimulant was supported by Nurse Dave Kereliuk after he met with the Applicant
on May 26, 2011. He proposed treatment with Biphentin.
[7]
In
the meantime Dr. Moore prescribed two non-stimulants, Effexor for ADHD in
September 2010, which the Applicant only took briefly due to side effects, and
Zoloft, which is not used to treat ADHD. It was prescribed in January 2011 and
it helped with the Applicant’s anxiety.
[8]
It
was not until 15 months after Dr. Preece made her recommendation that
Dr. Moore prescribed the stimulant Vyvanse.
I. The
Complaint
[9]
The
Applicant’s complaint was written on May 13, 2009 (the Complaint) and was
received by the Respondent on May 25, 2009. However, because the Applicant was
involved in grievance proceedings, the Complaint was not treated as active
until February 16, 2011. Thereafter, the Complaint was investigated and the
investigation report is dated February 28, 2012 (the Report).
[10]
The
Complaint alleges that the Applicant needs a Stimulant to treat his ADHD and
that Ritalin was prescribed and then denied without justification. The
Respondent’s failure to provide effective treatment is said to be the cause, at
least in part, of the long periods the Applicant spent in segregation at Kent.
[11]
The
Complaint also alleges that on May 13, 2009, Dr. Moore said that he refused to
treat people with ADHD and the Applicant concluded that Dr. Moore was
discriminating against him because of his disability.
[12]
Contrary
to the Respondent’s repeated assertions, my reading of the Complaint
reveals that the Applicant did not demand Ritalin. His Complaint says
that he was prescribed a “methylphenidate-based medication”. He goes on to
state: “A popular name is Ritalin. This medication is not confined to this
name brand or form of medicine.” In my view, the Applicant was not
insisting on Ritalin. Rather, he was asking for any drug that operated to
stimulate his central nervous system since a drug of that type had proven
effective at the RTC.
II. The
Report
[13]
I
have concluded that the Report is inadequate and that its recommendation to the
Commission to the effect that the Complaint not be referred to the Canadian
Human Rights Tribunal is flawed for the reasons set out below. This
finding means that the Decision must be set aside as it fails to meet
the requirements of procedural fairness.
1. Dr.
Moore was not interviewed. This means that the investigator was unaware
of the answers to the following questions:
- Whether
Dr. Moore knew that Dr. Healey had successfully treated the Applicant with a
Stimulant at the RTC?
- Whether
Dr. Moore considered treating the Applicant with a Stimulant using a safe
method of administration that would foreclose the possibility of the drug being
diverted to other inmates?
- Whether
Dr. Moore refused to treat the Applicant with Stimulants and, if so, why?
- Whether
Dr. Moore was prepared to treat ADHD and, if not, why?
- Why
Dr. Moore waited five months to offer Strattera?
- Why
Dr. Moore waited 12 months to consult Dr. Siani after Strattera could
not be tolerated by the Applicant?
- What
efforts did Dr. Moore make to identify and overcome the “risks” of
giving Stimulants identified by Dr. Siani?
- Why did
Dr. Moore wait 15 months after Dr. Preece recommended a Stimulant in March of
2010 to prescribe one – Vyvanse in June 2011?
2. The
investigator appeared to believe incorrectly that the Applicant would take
nothing but Ritalin for ADHD. However, this view is contradicted by the
Complaint, by the Respondent’s assertion that the Applicant was co-operative in
the search for effective treatment, and by the fact that the Applicant in fact
took Strattera and Effexor when neither is a Stimulant.
3. The
investigator did not consider whether the withholding of Stimulants was reasonable
given policies or practices which would have allowed medical staff at Kent to administer them without risk that they would be diverted to other inmates.
ORDER
THIS
COURT ORDERS that:
Regarding
Disability
The Decision as
it relates to the Applicant’s disability (ADHD) is set aside and a fresh
investigation of the Applicant’s disability claim in the Complaint dated May
13, 2009 is hereby directed in accordance with these reasons. Dr. Moore (who I
am advised still works at Kent) is to be interviewed and asked the
questions listed above, in addition to any further questions identified by the
investigator.
The Respondent
is liable for the Applicant’s costs pursuant to Column III of Tariff B of the Federal
Courts Rules. If a lump sum cannot be agreed, I will hear submissions about
the quantum of the award.
Regarding
Religion
The Decision on the
Applicant’s claim under this heading is set aside on consent and a fresh
investigation is to be made of the Applicant’s Complaint of May 13, 2009 on
this topic. There is no order as to costs.
“Sandra J. Simpson”
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