Thompson v Ontario : ONCA Dismisses Charter Challenge of Involuntary Civil Commitment Criteria and Community Treatment Orders
This is the first of a two-part post on Thompson v Ontario. Part 1 discusses (1) the section 7 Charter analysis undertaken by Belobaba J of the Ontario Superior Court and accepted by the Ontario Court of Appeal; and (2) the Court of Appeal’s holdings on (a) the role of the application judge in adjudicating conflicting expert evidence; and (b) the interface between the section 7 and section 1 analysis in the context of individualized legislative schemes. Part 2 discusses how the decisions rendered in Thompson may inform future challenges to mental health legislation across Canada.
In Thompson v Ontario, 2016 ONCA 676 [Thompson, ONCA] the Ontario Court of Appeal dismissed an appeal challenging the constitutionality of the amendments to Ontario’s Mental Health Act, RSO 1990, c M.7 [MHA] enacted through Brian’s Law (Mental Health Legislative Reform), 2000, SO 2000, c 9 [Brian’s Law]. The law was passed in memory of Brian Smith, a radio broadcaster who was killed by an untreated mentally ill individual. Brian’s Law amended both the admission and treatment aspects of Ontario’s mental health legislation by (1) expanding civil commitment criteria (enacting “Box B” criteria) and (2) introducing a new regime of Community Treatment Orders (CTOs).
The appellants, Karlene Thompson and the Empowerment Council, Systemic Advocates in Addictions and Mental Health, commenced an application in Superior Court in 2005 seeking a declaration that certain sections of the MHA pertaining to Box B criteria (MHA, ss 15(1.1), 16(1.1), 20(1.1) and CTOs (MHA, ss 33.1-33.9) violated sections 7, 9, 10(a) and (b), 12, and 15(1) of the Charter.
Thompson was admitted as an involuntary patient to psychiatric facilities at numerous times in her adult life. She was issued a series of CTOs from the period of December 2001 to December 2003. In August 2004, Thompson was deemed incapable of consenting to treatment and was issued another CTO. She challenged the finding of incapacity before the Consent and Capacity Board (“the Board”). The Board confirmed her incapacity to consent. The appellants submitted that at no point was Thompson deemed to be a danger to herself or others (Thompson, ONSC at para 55). Thompson left Canada in 2007 to avoid further psychiatric treatment. The application was continued by the Empowerment Council under public interest standing.
The application was dismissed by Belobaba J at the Superior Court, 2013 ONSC 5392 [Thompson, ONSC]. The application judgment focused primarily on the pleaded violation of section 7, ultimately finding no deprivation of liberty interests counter to principles of fundamental justice and no violation of sections 10, 12 or 15(1). While Belobaba J upheld the provisions as constitutional, he highlighted in obiter the legitimate concerns raised by involuntary civil commitment and forced psychiatric treatment. He acknowledged the competing social science evidence adduced by both parties as to the effectiveness of involuntary commitment and CTOs, suggesting that the appellants made a strong case for governmental review of the “impact and effectiveness of the Box B and CTO provisions” (Thompson, ONSC at para 128).
The Ontario Court of Appeal dismissed the appeal of The Empowerment Council for substantially the same reasons as Belobaba J. In addition to considering whether the application judge erred in his section 7 analysis, Sharpe JA, writing for the unanimous panel, discussed two questions applicable to future section 7 Charter litigation (Thompson, ONCA at para 24):
- The scope of fact finding on expert evidence an application judge is required to undertake, and
- The interface between the section 7 and the section 1 analysis in legislative regimes which contemplate individualized assessment.
The decisions of Belobaba J and Sharpe JA also raise important considerations for future challenges and introspective review of mental health legislation across Canada, contributing to an important conversation on the appropriate safeguards for constitutional rights in the imposition of involuntary detention and treatment by the state—a conversation that was recently sparked by the landmark decision of PS v Ontario, 2014 ONCA 900 [PS].
The Impugned Provisions
Box B Criteria – likelihood of “substantial mental or physical deterioration”
Brian’s Law expanded involuntary admission criteria from a risk of “danger to themselves or others” (Box A criteria) to also include likelihood of “substantial mental or physical deterioration, or serious physical impairment of the person” (Box B criteria) in cases where the individual subject to admission previously responded to treatment for the same or similar mental illness.
Box B criteria allows for civil committal by a physician where the individual:
- Has previously received treatment for a mental disorder of an ongoing nature, which if not treated will result in serious bodily harm to the person or another, or substantial mental or physical deterioration or serious physical harm;
- Has shown clinical improvement as a result of past treatment;
- Is suffering from the same or a similar mental disorder for which they received treatment in the past;
- Is likely to cause serious bodily harm to himself or herself or another person, or suffer substantial mental or physical deterioration or serious physical impairment;
- Is incapable of consenting to treatment and the consent of their substitute decision maker has been obtained; and
- is not suitable for admission or continuation as an informal or voluntary patient.
Community Treatment Orders
CTOs effectively operate as an alternative to involuntary detention in a psychiatric facility. They allow for prescribed treatment in the community for individuals who have been involuntarily committed and have a pervious history of hospital admissions. According to the MHA, the purpose of CTOs is to provide community based treatment or care, and supervision to individuals who exhibit the following pattern of behavior:
The person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person’s condition changes and, as a result, the person must be re-admitted to a psychiatric facility (MHA, s33.1(3)).
Before a CTO is implemented, the individual subject to the order or their substitute decision maker must consent. The physician issuing the order must provide the individual with notice and the individual will be contacted by a rights advisor who must promptly “give rights advice to the person and the SDM about the requirements for the issuance or renewal of the CTO, the significance of such an order, and their legal options for review.” An individual who is found incapable of consenting has a right to apply to the Board for review of the finding of incapacity (see Thompson, ONSC at paras 29-31).
Once a CTO is issued, the individual subject to the order is bound to comply with the treatment specified. Where a physician has reasonable cause to believe that the order is not being complied with, they may be issued an order for examination (Thompson, ONSC at para 31).
Section 7 Analysis
As is par for the course in cases involving section 7 challenges, the application judge’s decision in Thompson turned on a characterization of legislative purpose. The appellants argued a singular purpose of public safety, specifically to protect the public from mentally ill individuals prone to violence. The application judge held that on such a singular purpose, the finding on the application would likely have been one of unconstitutionality on the basis that there is “no meaningful correlation between mental illness and violence” (Thompson, ONSC at para 7).
However, Belobaba J (and the Court of Appeal) instead accepted the Crown’s argument of dual purpose, finding that the objectives of the legislative scheme were twofold – public safety and improved treatment of individuals with mental illness (Thompson, ONSC at para 8). Based on this articulation of legislative purpose, he found that the provisions were not unconstitutionally overbroad, arbitrary, grossly disproportionate, or vague. The Ontario Court of Appeal adopted substantially the same reasons as Belobaba J’s analysis of the principles of fundamental justice, finding no error in the Charter analysis (Thompson, ONCA at para 3).
The application judge’s section 7 analysis was driven primarily by the individualized decision-making by physicians on which the provisions are based and implemented, as well as the “procedural and substantive” safeguards afforded to individuals subject to the regime. Based on this analysis, it was held that the impugned provisions are not inconsistent with the dual purposes of public safety and effective treatment.
Belobaba J found that the legislation is not overbroad because it targets a specific group of patients – individuals with mental illness who have previously “responded to treatment while in hospital but who repeatedly stop taking medication after discharge, relapse and experience substantial mental and physical deterioration, and are readmitted to hospital” (Thompson, ONSC at para 94). Similarly, the CTO provisions contain “strict” threshold criteria related to patterns of previous hospitalization and effects of treatment, and procedural protections through the availability of review of the order and a declaration of incapacity by the Board, advice on rights, and requirement of consent (Thompson, ONSC at para 95).
The respondent’s arguments that the Box B criteria accelerates access to treatment for individuals with mental illnesses was accepted by the court. With respect to the CTO provisions, it was held that the “procedural and substantive protections provided to persons subject to CTOs” insulate the provisions from a charge of arbitrariness (Thompson, ONSC at para 100).
The Scope of the Application Judge’s Fact Finding
The appellants advanced a challenge relying on: expert evidence discounting the effectiveness of forced treatment with anti-psychotic medication; negative impacts of coerced treatment on dignity, self-worth, and recovery; and studies casting doubt on the effectiveness of CTOs. The respondents in turn led evidence countering these assertions.
The application judge acknowledged the conflicting evidence but held that it was outside of his jurisdiction to adjudicate the efficacy of the treatment regime, and further it was not determinative in disposing of the constitutional challenge before the court (Thompson, ONSC at paras 10, 92, 129-130). While Belobaba J did draw the conclusion that “the applicants…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,” he found that this was not enough to support a finding of unconstitutionality (Thompson, ONSC at para 90). It is particularly of note that the impacts of the treatment regime on Thompson and Amy Ness, the two stories relied on by the Empowerment Council in their challenge, were in the view of the application judge “much less compelling” when examined through a lens of the purpose of improved treatment (Thompson, ONSC at para 42).
On appeal, the appellants argued that the application judge erred in failing to make definitive findings to resolve the contradictory evidence adduced by experts on either side of the case. The appellants asserted that had the judge found that the expert evidence indicated that the provisions were not effective in improving treatment, the outcome of the subsequent Charter analysis would have yielded a different result.
The Court of Appeal rejected this argument holding that the application judge was only required to make findings of fact in so far as they were necessary to resolve the legal issues engaged by the section 7 analysis. Sharpe JA addressed the issue of the necessary findings of fact in concert with a discussion of the application of the principles of fundamental justice, finding that the application judge made the required factual findings.
The Court of Appeal’s analysis in this respect suggests that it was sufficient for the purpose of assessing arbitrariness, overbreadth, and gross disproportionality for the judge to base an analysis on a finding that while CTOs may not work for all individuals, there is research to indicate positive impacts on some individuals. As such a definitive finding of effectiveness was not necessary. Instead a finding of a “reasonable foundation in the evidence for the legislature to act to” was sufficient to appropriately adjudicate the constitutional issue. In support of this line of reasoning, both courts pointed towards objective indications of a positive impact on Thompson and Ness while on CTOs.
Importing Section 1 Considerations into a Section 7 Analysis?
The appellants argued that the application judge improperly imported section 1 considerations into the section 7 analysis counter to the Supreme Court of Canada’s direction in Carter and Bedford, 2013 SCC 72 where it was emphasized that section 1 is concerned with “justification on the basis of an overarching public goal” (Bedford at para 125), while the section 7 “inquiry into the purpose of the law focuses on the nature of the object, not on its efficacy” (Bedford at para 127).
The appellants in Thompson contended that in relying on the individualized application of the law, the application judge effectively required the appellants “to disprove the efficacy of the law or disprove that any benefits might flow” from it in order to make their case (Thompson, ONCA at para 57). The Court of Appeal disagreed, holding that the section 7 inquiry must consider the means employed by the legislation in order to assess the connection between its purpose and effects. As such, in the case of the impugned provisions challenged by the appellants, the means of an individualized assessment approach was part and parcel to the appropriate section 7 analysis.
The Court of Appeal’s reasoning on this point suggests that where the statutory scheme being challenged is individualized in nature, it is incumbent upon the applicant to ground their argument on an unconstitutional effect achieved by the individualized means. In other words, the granularity of section 7 arguments will necessarily be dictated by the granularity of the legislative regime. This suggests that in a case such as this, the appropriate litigation strategy would be to advance a challenge on a fact scenario or reasonable hypothetical demonstrating individualized infringement rather than advancing an argument based on the class of individuals effected or the evidentiary foundation for the means employed.
The nature of the constitutional challenge before the Ontario courts in Thompson is one of broad applicability across Canada. There is a notable dearth of jurisprudence at the appellate level challenging the treatment provisions of mental health legislative schemes in particular. Last September, two applicants launched a challenge of BC’s Mental Health Act. Unlike the legislative regime in Ontario, BC’s Act presumes incapacity and deemed consent of individuals involuntarily admitted.
While the applicants in Thompson were unsuccessful in their Charter challenge, the judgments from the Ontario Superior Court and Court of Appeal and their evaluation of the features of Ontario’s legislative regime nevertheless may provide helpful guidance for future challenges to mental health legislation in Canada, particularly in the section 7 context. Given the significant variability in legislative approaches to civil commitment and treatment across Canada, and the absence of any recent, clear direction from the Supreme Court of Canada on the necessary safeguards to protect civil liberties of those involuntarily admitted through these schemes, it seems that there is much ground to be covered in this area of the law. As societal conceptions and stereotypes of mental health in society (slowly) shift, there will be a need for the courts and legislatures in Canada to closely examine the underlying assumptions upon which regimes of civil commitment and treatment are based.