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?

See, e.g., B.A. Weiner, Rights of Institutionalized Persons, in Brakel, Parry, Weiner, The Mentally Disabled and the Law, 3d ed., at 251–325 (Chicago: American Bar Association, 1985).

See, e.g., the recent saga of the rise and fall of a constitutionally mandated right to refuse treatment; A.D. Brooks, Law and Antipsychotic Medications, Behavioral Sciences & the Law, 4: 247–264 (1986).

See generally Brakel, Parry, and Weiner, supra note 1.

See generally R.M. Gordon, S.N. Verdun-Jones, 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.

As enacted by the Canada Act 1982 (U.K.) c. 11.

See E. Newman, Charter Implications for Procedures under the Ontario Mental Health Act, Health Law in Canada 5: 60–64 (1985); E. Keyserlingk, Consent to Treatment: The Principles, the Provincial Statutes and the Charter of Rights and Freedoms, Canada's Mental Health 33: 7–11 (1985).

See R.M. Gordon, Legal Services for Mental Health Patients: Some Practical and Theoretical Observations on Canadian Developments, Australian Journal of Law & Society 1: 101–11 (1982).

See Gordon and Verdun-Jones, supra note 4, at 16–17.

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); S.N. Verdun-Jones, R.M.Gordon, Mental Health and Adult Guardianship Law in the Yukon (Whitehorse: Department of Health and Human Resources, Yukon, 1985).

Mental Health Services Act, 1985, S.S. 1984–85, c. M. 13.1, section 24.

Id., section 25(1).

Id., section 25(2).

Id., section 25(3).

Mental Health Services Act, S.S., 1984–85, c. M-13.1, section 25(4).

Reference re Procedures and the Mental Health Act (1984), 5 D.L.R. (4th) 577 (P.E.I.S.C. in banco).

Mental Health Act, R.S.P.E.I. 1974, c. M-9.

Lussa v. The Health Science Centre and Director of Psychiatric Services (1984), 5 C.H.R.R. D/2203 (Man. Q.B.).

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.)].

Re Moore and the Queen, supra note 18.

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); J. Monahan, 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); C.D. Webster, M.H. Ben-Aron, S.J. Hucker, Dangerousness: Probability & Prediction, Psychiatry & Public Policy (Cambridge: Cambridge University Press, 1985).

In particular, s. 688(a) of the Code.

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.

Regina v. Simon (no. 3) (1982), 69 C.C.C. (2d) 557.

Id. at 560.

See generally P. Russell, Cruel and Unusual Treatment or Punishment: The Use of Section 12 in Prison Litigation University of Toronto Faculty of Law Review 43: 185 (1985).

Supra note 18.

Id. at 359–63. See also R. v. Lyons, supra note 18.

Supra note 18.

Id. at 311–14.

(1983), 6 C.C.C. (3d) 193 (Ont. H.Ct.).

Id. at 219.

Id. at 221. There is no subsequent report to indicate the outcome of such a hearing (if one was held).

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).

Criminal Code, R.S.C. 1970, c. C-34, sections 542, 543, and 545.

See Gordon and Verdun-Jones, supra note 4, at 75–76.

Criminal Code, section 547.

(April 21, 1983), 9 W.C.B. 471 (Ont. Co. Ct).

Sections 543 and 545 of the Criminal Code.

(1985), 20 C.C.C. (3d) 196.

R. v. Saxell (1980), 59 C.C.C. (2d) 176.

Id. at 187.

(1986), 24 C.C.C. (3d) 385.

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.

Id. at 415–16.

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.).

Minister of Justice, News Release, June 25, 1986.

See Minister of Justice, Information Paper: Mental Disorder Amendments to the Criminal Code, June 1986.

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).

Spitzer S. Scull A.T. , Privatization and Capitalist Development: The Case of the Private Police, Social Problems 25: 18—29 (1977).

Scull A.T. , A New Trade in Lunacy: The Re-Commodification of the Mental Patient, American Behavioral Scientist 24: 741–54 (1981).

Id.

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).

Lightman, supra note 52, at 26.

Id.

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).

See B.A. Weiner, Treatment Rights, pp. 327–68, in Brakel, Parry and Weiner, supra note 1.

Mental Health Act, R.S.A. 1980, c. M-13, s. 13(1).

Mental Health Act, R.S.B.C., 1979, c. 256, s. 8(1) (a).

Mental Health Services Act, S.S., 1984–85, c. M-13.1, s. 27.

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.