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2. The Impact of the Canadian Charter of Rights and Freedoms upon Canadian Mental Health Law: The Dawn of a New Era or Business as Usual?

Published online by Cambridge University Press:  28 April 2021

Robert M. Gordon  and
Simon N. Verdun-Jones
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Extract

Canadian mental health law has traditionally held many themes in common with the mental health law of other Commonwealth countries such as Britain, Australia, and New Zealand. Until recently, this body of law bore only a passing resemblance to the system of mental health law that has emerged in the United States.

The existence of an entrenched Bill of Rights in the United States has meant that many major issues relating to the rights of mental health patients have been dealt with as constitutional matters of great import. Consequently, the 1960s and 1970s witnessed the burgeoning of an exciting body of case law establishing a number of critical rights for a constituency that had hitherto been powerless and tragically neglected. While many of the rights established in the so-called landmark cases were subsequently limited in their scope or were just not affirmed by the appellate courts, the widespread use of constitutional challenges by mental health advocates wrought wholesale changes in both federal and state legislation and permanently altered the balance of power between mental health professionals and their patients.

Type
Part IV: Mental Health
Information
Law, Medicine and Healthcare , Volume 14 , Issue 3-4 , September 1986 , pp. 190 - 197
Copyright
Copyright © American Society of Law, Medicine and Ethics 1986

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References

See, e.g., Weiner, B.A., Rights of Institutionalized Persons, in Brakel, Parry, Weiner, The Mentally Disabled and the Law, 3d ed., at 251–325 (Chicago: American Bar Association, 1985).Google Scholar
See, e.g., the recent saga of the rise and fall of a constitutionally mandated right to refuse treatment; Brooks, A.D., Law and Antipsychotic Medications, Behavioral Sciences & the Law, 4: 247–264 (1986).Google Scholar
See generally Brakel, Parry, and Weiner, supra note 1.Google Scholar
See generally Gordon, R.M., Verdun-Jones, S.N., Mental Health Law and Law Reform in the Commonwealth: The Rise of the New Legalism?, in Law and Mental Health: International Perspectives, vol. 2 (ed. Weisstub, D.N.) (New York: Pergamon, 1986), at 1–82.Google Scholar
As enacted by the Canada Act 1982 (U.K.) c. 11.Google Scholar
See Newman, E., Charter Implications for Procedures under the Ontario Mental Health Act, Health Law in Canada 5: 60–64 (1985); Keyserlingk, E. , Consent to Treatment: The Principles, the Provincial Statutes and the Charter of Rights and Freedoms, Canada's Mental Health 33: 7–11 (1985).Google Scholar
See Gordon, R.M., Legal Services for Mental Health Patients: Some Practical and Theoretical Observations on Canadian Developments, Australian Journal of Law & Society 1: 101–11 (1982).Google Scholar
See Gordon and Verdun-Jones, supra note 4, at 16–17.Google Scholar
S.S., 1984–85, c. M-13.1. For other potential legislative responses to the Charter, see Minister's Advisory Committee, Report on the Mental Health Act (St. John's: Ministry of Health and Social Services, Newfoundland, 1982); Social Services and Community Health, Alberta, Report of the Task Force to Review the Mental Health Act (Edmonton: Ministry of Social Services and Community Health, Alberta: 1983); Verdun-Jones, S.N., Gordon, R.M., Mental Health and Adult Guardianship Law in the Yukon (Whitehorse: Department of Health and Human Resources, Yukon, 1985).Google Scholar
Mental Health Services Act, 1985, S.S. 1984–85, c. M. 13.1, section 24.Google Scholar
Id., section 25(1).Google Scholar
Id., section 25(2).Google Scholar
Id., section 25(3).Google Scholar
Mental Health Services Act, S.S., 1984–85, c. M-13.1, section 25(4).Google Scholar
Reference re Procedures and the Mental Health Act (1984), 5 D.L.R. (4th) 577 (P.E.I.S.C. in banco).Google Scholar
Mental Health Act, R.S.P.E.I. 1974, c. M-9.Google Scholar
Lussa v. The Health Science Centre and Director of Psychiatric Services (1984), 5 C.H.R.R. D/2203 (Man. Q.B.).Google Scholar
R. v. Gustavson (1982), I C.C.C. (3d) 470 (B.C.S.C.); R. v. Langevin (1984), 11 C.C.C. (3d) 336 (Ont.C.A.); R. v. Lewis (1984), 12 C.C.C. (3d) 353 (Ont.C.A.); R. v. Lyons (1984), 15 C.C.C. (3d) 129 (N.S.C.A.); Re Moore and the Queen (1984), 10 C.C.C. (3d) 306 (Ont. H.C.J.); R. v. Vandale (Oct. 31, 1984) 13 W.C.B. 173 (B.C.C.A.). Note that in Lewis, leave to appeal to the Supreme Court of Canada was subsequently granted; however, the appeal was later abandoned owing to the death of the appellant [(1986), 25 C.C.C. (3d) 288 (S.C.C.)].Google Scholar
Re Moore and the Queen, supra note 18.Google Scholar
Of course, it is now almost axiomatic that “dangerousness” is difficult both to establish or to predict in any sort of objective manner. See, e.g., S. Pfohl, Predicting Dangerousness: The Social Construction of Psychiatric Reality (Lexington, Mass.: Heath, 1978); Monahan, J., Predicting Violent Behavior: An Assessment of Clinical Techniques (Beverly Hills, Cal.: Sage, 1981); Hinton, J.W., ed., Dangerousness: Problems of Assessment and Prediction (London: Allen & Unwin, 1983); Webster, C.D., Ben-Aron, M.H., Hucker, S.J., Dangerousness: Probability & Prediction, Psychiatry & Public Policy (Cambridge: Cambridge University Press, 1985).Google Scholar
In particular, s. 688(a) of the Code.Google Scholar
Id. at 310–11. In Langevin, supra note 18, the Ontario Court of Appeal ruled that studies indicating the unreliability of psychiatric predictions as to future dangerousness affected only the weight to be accorded to such psychiatric evidence, not its admissibility.Google Scholar
Regina v. Simon (no. 3) (1982), 69 C.C.C. (2d) 557.Google Scholar
Id. at 560.Google Scholar
See generally Russell, P., Cruel and Unusual Treatment or Punishment: The Use of Section 12 in Prison Litigation University of Toronto Faculty of Law Review 43: 185 (1985).Google Scholar
Supra note 18.Google Scholar
Id. at 359–63. See also R. v. Lyons, supra note 18.Google Scholar
Supra note 18.Google Scholar
Id. at 311–14.Google Scholar
(1983), 6 C.C.C. (3d) 193 (Ont. H.Ct.).Google Scholar
Id. at 219.Google Scholar
Id. at 221. There is no subsequent report to indicate the outcome of such a hearing (if one was held).Google Scholar
For an example of such criticism, see Law Reform Commission of Canada, A Report to Parliament on Mental Disorder in the Criminal Process (Ottawa: Information Canada, 1976).Google Scholar
Criminal Code, R.S.C. 1970, c. C-34, sections 542, 543, and 545.Google Scholar
See Gordon and Verdun-Jones, supra note 4, at 75–76.Google Scholar
Criminal Code, section 547.Google Scholar
(April 21, 1983), 9 W.C.B. 471 (Ont. Co. Ct).Google Scholar
Sections 543 and 545 of the Criminal Code.Google Scholar
(1985), 20 C.C.C. (3d) 196.Google Scholar
R. v. Saxell (1980), 59 C.C.C. (2d) 176.Google Scholar
Id. at 187.Google Scholar
(1986), 24 C.C.C. (3d) 385.Google Scholar
Id. at 408–15. Thorson J.A. noted that section 545 requires the lieutenant governor to order either the accused's release or his/her continued detention. It was also pointed out that section 547 requires periodic review of an accused's case by the review board.Google Scholar
Id. at 415–16.Google Scholar
Id. at 424–27. In one other case, involving the insanity defense and the Charter, the Manitoba Court of Appeal ruled that section 16(4) of the Criminal Code, which places the burden of proof in relation to the insanity defense upon the accused, does not contravene section 11(d) of the Charter, which guarantees the presumption of innocence: Regina v. Godfrey (1984), 11 C.C.C. (3d) 233 (Man. C.A.).Google Scholar
Minister of Justice, News Release, June 25, 1986.Google Scholar
See Minister of Justice, Information Paper: Mental Disorder Amendments to the Criminal Code, June 1986.Google Scholar
See Gordon, and Verdun-Jones, , supra note 4, and Privatization and Protective Services for the Elderly; Some Observations on the Economics of the Aging Process, International Journal of Law and Psychiatry 8: 311–25 (1986).Google ScholarPubMed
Spitzer, S. Scull, A.T., Privatization and Capitalist Development: The Case of the Private Police, Social Problems 25: 18—29 (1977).Google Scholar
Scull, A.T., A New Trade in Lunacy: The Re-Commodification of the Mental Patient, American Behavioral Scientist 24: 741–54 (1981).Google Scholar
Id.Google Scholar
Lightman, E.S., The Impact of Government Economic Restraint on Mental Health Services in Canada, Canada's Mental Health 34(1): 24–28. See also. Social Planning Council of Metro Toronto, Caring for Profit: The Commercialization of Human Services in Ontario (Toronto: S.P.C.M.T., 1984).Google Scholar
Lightman, supra note 52, at 26.Google Scholar
Id.Google Scholar
Gostin, L., The Ideology of Entitlement: The Application of Contemporary Legal Approaches to Psychiatry, in Mental Illness: Changes and Trends (ed. Bean, P.) (London: Wiley, 1983), at 27–54, and Contemporary Social Historical Perspectives on Mental Health Law Reform, Journal of Law and Society 10: 47–70 (1983).Google Scholar
See Weiner, B.A., Treatment Rights, pp. 327–68, in Brakel, Parry and Weiner, supra note 1.Google Scholar
Mental Health Act, R.S.A. 1980, c. M-13, s. 13(1).Google Scholar
Mental Health Act, R.S.B.C., 1979, c. 256, s. 8(1) (a).Google Scholar
Mental Health Services Act, S.S., 1984–85, c. M-13.1, s. 27.Google Scholar
In England and Wales, for example, the Mental Health Act, 1983 (section 117) places a duty upon the local authorities to provide after-care services in cooperation with the relevant voluntary agencies.Google Scholar