Thompson, et al. v. Ontario

2013 ONSC 5392
Download Judgment: English

The Court examined the constitutionality of Brian’s Law, which was passed in 2000 after a man named Brian Smith was fatally shot by an untreated schizophrenic. The law included expanded committal criteria and allowed for involuntary admission for individuals who had experienced “substantial mental deterioration,”even if they were not necessarily a danger to others. In addition, the law created a system of Community Treatment Orders (“CTO”) that would provide community-based mental health treatment in lieu of detaining a patient in a psychiatric facility. For a physician to issue a CTO, the patient had to meet certain enumerated criteria such as multiple detainments and be provided notice and a hearing.

Thompson had been involuntarily detained in a hospital and then treated under CTOs. She filed a lawsuit claiming that Brian’s Law violated the Canadian Charter of Rights and Freedoms (“Charter”) because it infringed upon the liberty of individuals with mental disorders by forcing involuntary psychiatric treatment on them despite the fact that they were not a danger to others.

The Court dismissed the suit and held that Brian’s Law was not unconstitutional.

The primary issue decided by the Court was whether Brian’s Law was enacted solely for public safety reasons, or whether it was also intended to provide an improved treatment regime for the mentally ill. If it had only been passed for public safety concerns, the law would have been over-expansive; however, the Court found that the law did in fact have a dual purpose because both the legislative history and the text of the law demonstrated that the law had been passed for the purposes of public safety as well as treatment. Furthermore, the provisions applied on an individual basis to a limited group. The conflicting nature of medicine and scientific studies on the treatment of the mentally ill made it essentially impossible for the Court to decide on the effectiveness of certain treatments. Thus, it chose to defer to the government in making social policy in this area.

The Court also held that Brian’s Law did not violate Section 7 of the Charter, which protects the right to life and the right to liberty and security of the person. Though the Court acknowledged that involuntary commitments and CTOs infringe upon an individual’s liberty interest, it found that the statutory provisions at issue were in accord with the principles of fundamental justice. The statutory provisions were not overbroad, as discussed above, nor were they arbitrary. They were closely related to the state’s legitimate interests in facilitating treatment and protecting the public safety, and the Court found that the benefits were worth the costs to liberty. Additionally, the Court reasoned that the required notice and procedural safeguards in Brian’s Law served to protect individual liberty.

The Court also held that the law was not unconstitutionally vague. The applicants argued that the criteria of “substantial mental deterioration” necessary for involuntary commitment of a mentally ill individual was unduly vague. However, the Court determined that the law was not unconstitutional merely because it was subject to interpretation. As there was also no evidence of cruel and unusual punishment or discrimination based on mental disability, the Court dismissed the suit.

Finally, the Court held that the law did not violate Section 15 of the Charter, which protects the right to be free from discrimination because the law required individualized scrutiny of an individual’s circumstances and did not rely on stereotypes of mentally disabled persons.

“There is considerable disagreement in the mental health professional community and the relevant scientific literature about the effectiveness of modern psychiatric practices in the treatment of serious mental illness, especially the habitual use of antipsychotic/neuroleptic medications. There is also a significant disagreement about the efficacy of a community treatment regime based on coercion. The outcome of the competing analyses is troubling but inconclusive. The only conclusions that can be fairly drawn from the conflicting empirical studies that are contained in the record before me are (1) the applicants have presented a compelling case that the impugned amendments enacted by Brian’s Law may not be working as intended and may be causing more harm than good; and (2) the Minister of Health and Long-Term Care would be well advised to consider a comprehensive review of the impact and effectiveness of both the Box B provisions and the CTO regime. [91] But neither of these conclusions can support a finding of overbreadth, arbitrariness or gross disproportionality. Indeed, the case law is clear that where the evidence is inconclusive and the efficaciousness of a legislative remedy is difficult to measure, it is for the legislature and not the courts, to decide upon the appropriate course of action.” Paras. 89-91.

“Involuntary civil commitment and forced psychiatric treatment will always be enormously difficult issues for modern governments. Incarcerating people who have committed no crime and forcing them to take medication that may have devastating side-effects tests the legitimacy of coercive psychiatry, the justifiable limits of state intervention and the meaning of individual freedom. The most that I can do as a judge (I am not a one-man royal commission) is determine if the impugned legislation, even where there is disagreement about its effectiveness, crosses into a constitutional danger zone. I am of course concerned about the extent of the disagreement over the Box B and CTO provisions, but I am obliged to conclude as a matter of law that these impugned provisions are not unconstitutional” Paras. 129-130.

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