McGill Law Journal ~ Revue de droit de McGill
JURISDICTION OF MENTAL HEALTH TRIBUNALS TO
PROVIDE POSITIVE REMEDIES: APPLICATION,
CHALLENGES, AND PROSPECTS
Joaquin Zuckerberg*
Modern mental health legislation protects
the civil rights of the mentally ill by limiting the
scope of permissible state interference with an
individuals autonomy. It also generally sets up
mental health tribunals in charge of reviewing
compliance with parts of the legislation. How-
ever, the legislation does not generally address
the right to adequate mental health care. The
latter (or its lack thereof) has increasingly be-
come a source of debate among scholars and pol-
icy makers. The right to adequate care is in-
creasingly being seen as the sine qua non of the
civil rights of the mentally ill. This article ex-
plores recent Canadian jurisprudence dealing
with the power of administrative tribunals to
address constitutional and quasi-constitutional
claims, and questions whether such power could
give rise to a claim for adequate health care be-
fore mental health tribunals. It argues that,
subject to some limited circumstances where
mental tribunals have been given certain dis-
cretion to factor adequate care into their deci-
sions, the recent Canadian jurisprudence does
not significantly modify the limited remedies
available before mental health tribunals.
La lgislation moderne en matire de san-
t mentale protge les droits civils des per-
sonnes atteintes de maladies mentales en limi-
tant la porte de lingrence tatique sur leur
autonomie individuelle. Cette lgislation tablit
galement des tribunaux administratifs chargs
de faire respecter certains de ses propres l-
ments statuaires. Toutefois, la lgislation ne
traite gnralement pas du droit daccs des
services de sant mentale adquat. Ce droit (ou
plutt, son omission) est progressivement deve-
nu une source de dbat parmi les universitaires
et les acteurs gouvernementaux. Le droit des
soins adquats est de plus en plus peru comme
tant la condition sine qua non des droits civils
des personnes atteintes de maladies mentales.
Cet article examine la jurisprudence canadienne
portant sur le pouvoir des tribunaux administra-
tifs statuer sur les revendications constitu-
tionnelles et quasi constitutionnelles, et sinter-
roge plus particulirement savoir si un tel
pouvoir pourrait mener une revendication de-
vant les tribunaux administratifs en matire
daccs aux soins de sant mentale. Lauteur
maintient que, lexception de certaines cir-
constances o les tribunaux ont pu se prvaloir
de leur discrtion pour prendre en compte lac-
cs aux soins dans le contexte de leurs dci-
sions, la jurisprudence canadienne ne modifie
pas de manire significative les recours limits
devant les tribunaux de sant mentale.
* Legal Counsel, Consent and Capacity Board; Adjunct Professor, Faculties of Law and
Medicine, University of Toronto. The views expressed in this article are those of the
author and do not necessarily reflect the views of any other person or agency.
Citation: (2011) 57:2 McGill LJ 267 ~ Rfrence : (2010) 57 : 2 RD McGill 267
Joaquin Zuckerberg 2011
268 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
The Canadian Charter of Rights and Freedoms
Jurisdiction of Mental Health Tribunals to Assess
the Constitutional Validity of Legislation
A. Did Jane Patient Apply Only to the Challenged
Community Treatment Order Provisions?
III. Remedial Power under Section 24(1) of the Charter
A. Legislative Intent to Exclude Charter Jurisdiction
B. A Tribunals Jurisdiction over Remedies
C. Charter Jurisdiction Does Not Allow Tribunals to
Grant New Remedies
IV. The Application of Human Rights Codes
V.
Potential Claims before Mental Health Tribunals
to Advance Rights to Adequate Care
A. Ordering, Recommending, or Reviewing Treatment
and the Surrounding Conditions
B. Lack of Community Accommodation Leading to
Involuntary Admission
C. Transferring Patients
Conclusion
269
270
272
274
275
278
280
281
281
286
289
293
294
296
JURISDICTION OF MENTAL HEALTH TRIBUNALS 269
Introduction
Most modern mental health legislation provides for some sort of re-
view body to oversee decisions to admit persons involuntarily into psychi-
atric facilities, to review findings of incapacity to consent to medical
treatment, and/or to issue community treatment orders (CTO). This re-
view body often takes the shape of an independent mental health tribunal
(MHT)1 charged with the role of ensuring that an individuals autonomy is
only limited according to the substantive and procedural requirements es-
tablished by law.
This article questions whether these tribunals have or should have a
wider role than the one traditionally assigned to them. The recent juris-
prudence from the Supreme Court of Canada (SCC) regarding the juris-
diction of administrative agencies to entertain constitutional and quasi-
constitutional challenges provides an interesting opportunity to review
this question. What are the effects of such jurisprudence on the work of
MHTs and on their use as a forum to adjudicate questions concerning the
adequacy of health care provided? This is not only an academic question
but also a question of access to justice, as MHTs are invariably the only
adjudicative body, in terms of monitoring compliance with mental health
legislation, to which the mentally ill have access.
This article begins by providing a brief overview of constitutional ju-
risprudence in the context of Canadian mental health legislation, which
has been limited to litigation over the boundaries of legitimate state ac-
tion and has not addressed the right to adequate care. It then turns to the
recent SCC decisions that address the authority of administrative agen-
cies to deal with constitutional and quasi-constitutional claims.
Part V introduces the debate surrounding the right to adequate health
care in the context of mental health legislation. It then considers a number of
potential constitutional and quasi-constitutional claims to adequate health
care that could be made before MHTs and highlights some of the legal barri-
ers these claims face. It concludes that, subject to some limited circumstanc-
es where tribunals have been given limited discretion to factor adequate care
into their decisions, the recent Canadian jurisprudence will not significantly
affect the limited jurisdiction of MHTs.
1 For the purposes of this article, I define MHTs as administrative tribunals/agencies
with the authority to adjudicate over civil and not forensic patients, mainly with ju-
risdiction over reviews of involuntary admission, findings of incapacity to consent to
treatment and community treatment orders (CTOs). In federal systems, these tri-
bunals are generally established by provincial (Canada) or state (Australia) legisla-
tion.
270 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
I. The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms,2 part of Canadas
Constitution, came into force in 1982. The text outlines political and civil
rights that apply to the actions of all levels of government. Canadian
courts have the power to strike down legislation that conflicts with Char-
ter rights. In terms of mental health legislation, the most pertinent sec-
tions are: section 7 (the right to life, liberty and security of the person),
section 9 (the right not to be arbitrarily detained or imprisoned), section
10 (the right, upon arrest or detention, to legal counsel and to habeas cor-
pus recourse), section 12 (the right not to be subjected to cruel and unusu-
al punishment), and section 15 (the right to equality). These rights are
generally subject to the limitations clause (section 1), which allows govern-
ments to justify certain infringements of rights.
A number of provincial mental health laws have been challenged on
the basis of constitutional incompatibility. This litigation has only dealt
with alleged breaches of negative rights. Early on, the courts upheld the
constitutionality of Ontarios mental health legislation.3 The administra-
tion of treatment without the patients consent and against his or her will,
for instance, was found not to violate section 7 of the Charter because the
framework erected under the mental health legislation was in accordance
with the principles of fundamental justice.4 Nor was an MHTs admission
and reliance on hearsay evidence considered to violate the Charter.5
The courts, however, struck down legislative provisions dealing with
involuntary committal in Manitoba because the provisions did not nar-
rowly define those persons with respect to whom they could be properly
invoked and did not specifically prescribe the conditions under which a
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
3 Re Azhar and Anderson (1985), 33 ACWS (2d) 521 (Ont Dist Ct), Locke J (the pa-
tients section 7 Charter right to security of the person was not violated and neither
was his section 9 right not to be arbitrarily detained. Similarly, there was no viola-
tion of the patients rights under section 12 of the Charterthe medical treatment
used was neither cruel nor unusual).
4 Howlett v Karunaratne (1988), 64 OR (2d) 418 at 432, 438, 9 ACWS (3d) 218 (Ont Dist
Ct) (the court further held that the Mental Health Act, RSO 1980, c 262, as amended by
SO 1987, c 37 [OMHA 1980] did not violate the appellants rights under sections 12 and
15(1) of the Charter, and that limitations imposed on Charter rights would nevertheless
be upheld under section 1 of the Charter).
5 See Dayday v MacEwan (1987), 62 OR (2d) 588 at 596-97, 7 ACWS (3d) 208 (Ont Dist
Ct) (the stringent legislative time requirements for holding hearings allowed for the use
of hearsay evidence in the interest of expediency).
JURISDICTION OF MENTAL HEALTH TRIBUNALS 271
person could be detained.6 The amended legislation, which included a test
for involuntary admissions that listed dangerousness as a criterion,7 was
subsequently upheld by the court.8 Dangerousness, however, is not the on-
ly permissible criterion for involuntary committal. Courts have held that
the criterion of protection of the patient or others, for instance, involves
the notion of harm and is thus not so vague as to constitute a breach of
section 7 of the Charter.9
More recently, courts have held that the test for determining a pa-
tients capacity to consent to treatment under Ontario mental health leg-
islation is not unconstitutionally vague,10 and that the legislation does not
infringe the Charter by permitting the administration of treatment to be
forced on involuntary incapable persons11 and the civil committal of cer-
6 See Thwaites v Health Sciences Centre Psychiatric Facility (1988), 48 DLR (4th) 338, 51
Man R (2d) 196 (CA) [Thwaites]. Pursuant to the Mental Health Act (RSM 1987, c
M110, ss 15(1), 15(3) [MBMHA]), persons could be detained for medical examination
when suspected or believed to be in need of examination and treatment in a psychiatric
facility, and they could be compulsorily admitted to such a facility when a single medi-
cal practitioner was of the opinion that they should be so confined. The provisions did
not include a dangerousness standard. Mental disorder and related terms were broad-
ly defined and included a wide range of illnesses and disorders, many of which did not
require compulsory examination or admission.
7 Manitobas regime was amended to include an objective standard for compulsory ad-
missions of general application with a specific requirement for a finding of mental dis-
order. Compulsory admission was only authorized when a mental disorder met the ob-
jective statutory criteria. Although this amendment pre-dated the decision in Thwaites
(supra note 6) it had not yet been proclaimed. See MBMHA, supra note 6, s 16(1), as
amended by An Act to Amend the Mental Health Act, SM 1987-88, c 56, s 7(2).
8 Bobbie v Health Sciences Centre (1988), [1989] 2 WWR 153, 56 Man R (2d) 208, (QB)
(the court held that an application of the legislative test of likelihood of serious harm
resulting in deprivation of liberty did not contravene the principles of fundamental jus-
tice protected by section 7 of the Charter).
9 See McCorkell v Riverview Hospital Review Panel, 104 DLR (4th) 391 at 417-20, [1993]
8 WWR 169 (BCSC) (assessing the constitutionality of British Columbias Mental
Health Act).
10 DAlmeida v Barron, 2010 ONCA 564, 103 OR (3d) 250.
11 See T (SM) v Abouelnasr (2008), 171 CRR (2d) 344, 166 ACWS (3d) 569 (Ont Sup Ct);
Fleming v Reid (1991), 4 OR (3d) 74, 82 DLR (4th) 298 (Ont CA), Robins JA [Fleming
cited to OR]. I would further declare ss. 35a and 35(2)(b)(ii) of the Mental Health Act
inoperative insofar as these sections purport to empower the review board to authorize
the psychiatric treatment of incompetent patients involuntarily confined in psychiatric
facilities contrary to the refusal of the patients substitute decision-maker to consent to
such treatment on the basis of the patients prior competent wishes (ibid at 96). There-
fore, if an involuntary incapable patient does not express prior competent refusal, the
administration of treatment may be forced.
272 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tain sexual offenders at the end of their sentences.12
The Charter has also been invoked in the context of advance direc-
tives. In this regard, provisions of Ontarios Mental Health Act that per-
mitted the provinces mental health tribunal to override the competent
wishes of incapable patients and the decisions of their substitute decision
makers, without providing recourse to a hearing to determine why the pa-
tients wishes should not be honoured, were found to violate the right to
security of the person under section 7 of the Charter.13
Finally, the judiciary has, in the context of Charter challenges, com-
mented on the scope of patients right not to incriminate themselves14 and
their right to be informed of their right to counsel.15
II. Jurisdiction of Mental Health Tribunals to Assess the Constitutional
Validity of Legislation
The power to assess the constitutionality of legislation derives from
section 52 of the Constitution Act, 1982.16 In the past, administrative tri-
bunals that had jurisdictionwhether express or impliedto decide ques-
tions of law arising under a legislative provision were presumed to have
concomitant jurisdiction to decide the constitutional validity of that provi-
12 See Penetanguishene Mental Health Centre v Stock (1994), 116 DLR (4th) 550, 49
ACWS (3d) 157 (Ont Gen Div); Starnaman v Penetanguishene Mental Health Centre
(1995), 24 OR (3d) 701, 83 OAC 95.
13 Fleming, supra note 11.
14 See CW v Mental Health Review Board (Man), 95 Man R (2d) 153 at 157, 8 WWR 761,
(CA) (in obiter dicta, the court noted that the board may interview the patient to help
board members formulate their own opinions as to the patients mental condition, but
that it would be unthinkable that a board, inquiring as to whether there were sufficient
grounds on which to detain a patient involuntarily, would threaten the patient with a
loss of liberty for failure to answer questions).
15 See Chandrasena v McDougald (5 October 1989), Ottawa-Carleton 32824/89 (Ont Dist
Ct) (available on QL) [Chandrasena] (a patient subjected to an application for psychi-
atric assessment in Ontario must be advised of his or her right to counsel). The
Charter issue was moot in this case, because the Charter right of detained persons
to counsel was separately contained in sections 30(a)(1)(c) and 30(a)(1)(e) of the
OMHA 1980 (supra note 4). See also B(C) v Sawadsky (2006), 82 OR (3d) 661, 216
OAC 105 (dismissing an action for false imprisonment, unreasonable search and sei-
zure, and breach of the rights to liberty, to counsel, and to be advised of the right to ob-
tain counsel, contrary to sections 7, 8, 9, and 10 of the Charter). The court confirmed the
lower courts decision, which held that the plaintiff was informed in writing of her right
to retain counsel. The question of whether section 10(b) of the Charter imposes addi-
tional obligations to advise patients of their right to counsel and/or to facilitate contact
with counsel was not decided.
16 Constitution Act, 1982, s 52, being Schedule B to the Canada Act (UK), 1982, c 11 [Con-
stitution].
JURISDICTION OF MENTAL HEALTH TRIBUNALS 273
sion. In Cooper v. Canada, however, the SCC suggested that it would not
be easy to make a finding of implied jurisdiction.17 This, in effect, created
a presumption of lack of jurisdiction to consider the constitutionality of
legislation for those boards that lacked express jurisdiction, including
most, if not all, MHTs in Canada.
The SCC reversed this approach in Nova Scotia (Workers Compensa-
tion Board) v. Martin; Nova Scotia (Workers Compensation Board) v. La-
seur,18 shifting to a presumption of jurisdiction, so long as the tribunal in
question has express or implied power to deal with questions of law.19 The
Court further held that [t]his presumption may only be rebutted by
showing that the legislature clearly intended to exclude Charter issues
from the tribunals authority over questions of law.20
The decision in Martin was bound to give rise to a constitutional chal-
lenge under section 52. In the context of MHTs, this occurred in Ontario
(Attorney General) v. Jane Patient,21 where the respondent patient had
challenged the constitutional validity of Ontario legislative provisions
dealing with CTOs. According to the Ontario Mental Health Act, [t]he
purpose of a community treatment order is to provide a person who suf-
fers from a serious mental disorder with a comprehensive plan of commu-
17 Cooper v Canada (Human Rights Commission), [1996] 3 SCR 854 at 890-92, 140 DLR
(4th) 193 (a tribunals jurisdiction to deal with questions of law involving its enabling
legislationthe so-called limited questions of lawwould not suffice for a finding of
implied jurisdiction. Courts in the post-Cooper era will only find implied jurisdiction if a
tribunal has jurisdiction to deal with questions of law not involving its enabling legisla-
tionthe so-called general questions of law).
18 2003 SCC 54 at paras 3, 30, [2003] 2 SCR 504 [Martin].
19 Implied jurisdiction must be discerned by looking at the statute as a whole. Relevant
factors include the statutory mandate of the tribunal and whether deciding questions of
law is necessary to fulfilling this mandate effectively; the interaction of the tribunal
with other elements of the administrative system; whether the tribunal is adjudicative
in nature; and practical considerations, including the tribunals capacity to consider
questions of law. Practical considerations, however, cannot override a clear implication
from the statute itself. See e.g. Parkhill Bedding & Furniture Ltd v International Mold-
ers & Foundry Workers Union of North America, Local 174 (1961), 26 DLR (2d) 589 at
591-92, 34 WWR 13 (Man CA); McLeod v Egan, [1975] 1 SCR 517, 46 DLR (3d) 150
[McLeod]; CTV Television Network Ltd v Canada (Copyright Board), [1993] 2 FCR 115
at 123, 99 DLR (4th) 216 (CA).
20 Martin, supra note 18 at para 3. Some commentators have called this approach some-
what disingenuous, as most administrative tribunals have the power and the duty to
determine the constitutional validity of any law that is necessary for carrying out their
statutory mandate. A tribunal cannot operate without interpreting what its jurisdiction
is. See e.g. Robert W Macaulay & James LH Sprague, Practice and Procedure Before
Administrative Tribunals, loose-leaf (consulted on 17 September 2011), vol 3 (Toronto:
Carswell, 2004) at 23.21-22.
21 (2005), 250 DLR (4th) 697, 194 OAC 331 (Sup Ct (Div Ct)) [Jane Patient].
274 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
nity-based treatment or care and supervision that is less restrictive than
being detained in a psychiatric facility.22 On judicial review from a deci-
sion of the Consent and Capacity Board (CCB), Ontarios MHT, the court
held that the board did not have jurisdiction to determine the constitu-
tional validity of the CTO provisions in its enabling legislation23 because
this legislation did not give the board jurisdiction to consider questions of
law (specifically, constitutional challenges); this was evidenced by the
fact-intensive nature of the boards typical inquiries and the strict statu-
tory timelines imposed on its proceedings.24 Importantly, the court was of
the opinion that, even assuming that the board did have implied jurisdic-
tion to determine questions of law, the presumption that the board had
jurisdiction to adjudicate Charter challenges with respect to those ques-
tions of law was rebutted because the strict statutory time limits under
which the board was required to conduct hearings and render decisions
made consideration of Charter challenges unrealistic.25 The court also ex-
pressed some concern about having a potential majority of nonlegal mem-
bers deciding Charter issues.26
A. Did Jane Patient Apply Only to the Challenged Community Treatment
Order Provisions?
The decision in Jane Patient arguably applied only to the impugned
CTO sections of the Ontario Mental Health Act27 and left open potential
section 52 challenges of other provisions of the legislation. Nevertheless,
the courts comments regarding the strict statutory limits on the CCB
pertain to the tribunals institutional constraints and are equally applica-
ble to other decisions under the jurisdiction of the CCB (and other Cana-
dian MHTs).28 The courts analysis is of particular relevance to reviews of
22 Mental Health Act, RSO 1990, c M.7, as amended by SO 2000, c 9, s 33.1(3) [OMHA
1990].
23 Ibid; Health Care Consent Act, SO 1996, c 2 [HCCA].
24 Jane Patient, supra note 21. However, the test in Martin requires only that the tribunal
have the power to determine questions of law (supra note 18 at para 51).
25 See OMHA 1990, supra note 22, s 39.1(6) (mandating the CCB to promptly review
CTOs); HCCA, supra note 23, ss 75, 80 (providing for particularly short time frames for
the CCB to schedule hearings and render decisions, and for appeals from those deci-
sions to be filed).
26 See OMHA 1990, supra note 22, s 39.1(9) (establishing that parties to CTO reviews by
the CCB must include the ordering physician, the patient, and any third person speci-
fied by the CCB).
27 Ibid, ss 33.1, 33.3, 33.7.
28 Although Jane Patient is only a first instance decision that is not binding on other prov-
inces, the comments made by the court could equally apply to other MHTs with similar
time constraints.
JURISDICTION OF MENTAL HEALTH TRIBUNALS 275
involuntary admission as it appeared to endorse the rationale behind Re
C(J), which held that the legislature intended to limit the mandate of the
psychiatric review board (a predecessor of the CCB) to a factual inquiry of
whether the statutory conditions for involuntary admission were met.29
The issue of whether Jane Patient had implications beyond the CTO
provisions in question quickly became moot. Subsequent to the release of
the decision, the legislation was amended to preclude the CCB from decid-
ing the constitutional validity of an act or regulation.30 A similar approach
has been taken in British Columbia, where the Mental Health Review
Board is barred from exercising jurisdiction over constitutional ques-
tions.31 The question of whether other Canadian MHTs have authority to
deal with the constitutional validity of legislation has not yet been litigat-
ed.
III. Remedial Power under Section 24(1) of the Charter
Jane Patient addressed whether the CCB had the power to decide the
constitutionality of legislation under section 52 of the Charter, but not
whether the board had a remedial power under section 24(1). The latter
may apply to a situation where the law itself is constitutional, but where
the actions taken by a health practitioner pursuant to that law violate the
Charter rights of a patient.
An administrative tribunal that is found to be a court of competent
jurisdiction has authority to provide Charter remedies under section
24(1). Historically, an administrative tribunal was a court of competent
jurisdiction under section 24(1) of the Charter if it had jurisdiction over
the person and the subject matter, and was able to grant the remedy
sought.32 This approach was modified in R. v. Conway,33 where the SCC
29 Re C(J) (1992), 3 Admin LR (2d) 223 at 236, 33 ACWS (3d) 150 (Ont Gen Div) [Re C(J)].
30 HCCA, supra note 23, s 70.1(1), as amended by Good Government Act, 2006, SO 2006, c
19, Schedule L, s 2.
31 See Mental Health Act, RSBC 1996, c 288, as amended by SBC 2004, c 45, s 24.2
[BCMHA]; Administrative Tribunals Act, SBC 2004, c 45, s 44 [BCATA] (together, these
two provisions removed the jurisdiction of British Columbia MHTs to deal with consti-
tutional questions). Other British Columbia tribunals can hear constitutional ques-
tions other than Charter ones (for example, federal-provincial conflicts) (ibid, s 45). In
practice deciding ultra vires questions may sometimes be unavoidable for any tribunal,
even one that has no jurisdiction over constitutional questions of any nature, as it may
be simply necessary to reach a decision.
32 See R v Mills, [1986] 1 SCR 863 at 955, 29 DLR (4th) 161; Cuddy Chicks Ltd v Ontario
(Labour Relations Board), [1991] 2 SCR 5 at 14, 81 DLR (4th) 121; Douglas/Kwantlen
Faculty Assn v Douglas College, [1990] 3 SCR 570 at 595, 77 DLR (4th) 94.
33 R v Conway, 2010 SCC 22, [2010] 1 SCR 765 [Conway].
276 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
held that when a Charter remedy is sought from an administrative tribu-
nal, whether the tribunal is one of competent jurisdiction under sec-
tion 24(1) depends on whether it is authorized to decide questions of law.34
Whether an MHT has remedial jurisdiction under section 24(1) was
first addressed in Ontario in Chandrasena.35 The Ontario psychiatric re-
view board was found not to be a court of competent jurisdiction for the
purposes of section 24(1), though the court did not elaborate on the rea-
sons for this finding. This issue was revisited and fully addressed in Re
C(J).36 The physician in this case appealed the psychiatric review boards
decision to rescind a certificate of involuntary admission, but he aban-
doned the appeal before it was heard and proceeded to have the patient
recommitted as an involuntary patient.37
Thereafter, the patient again applied to the psychiatric review board
to review his continuing status as an involuntary patient.38 The board
ruled that it had jurisdiction to consider whether the actions of the hospi-
tal had infringed the patients rights under sections 7 and 9 of the Char-
ter. It also ruled that it was a court of competent jurisdiction in terms of
section 24(1) of the Charter. The board proceeded to hold that the hospital
had violated the Charter and abused the processes of the board in aban-
doning an appeal that it knew it could not win and in instead proceeding
to have the patient recommitted under the provisions of the Ontario Men-
tal Health Act. As a result, the board made some procedural rulings but
did not grant the patient the remedy he was seekingnamely, a stay of
the certificate of involuntary committal. The decision was reversed on ap-
peal.39 The court relied on the deleterious effects to the tribunals ability to
perform its intended function (such as time constraints, workload, and the
tribunals expertise and ability to compile a record) in determining that
the board did not have jurisdiction to deal with Charter issues or to grant
Charter relief.40
34 The Conway decision is analyzed further below.
35 Supra note 15.
36 Supra note 29.
37 The psychiatrist in chief explained that, on reviewing the file, he was not at all sure
that the hospital would win the appeal and, as a result, he had acted to prevent the re-
lease into the community of a person whom he regarded as dangerous. C.f. OMHA
1990, supra note 22, s 48(6) (allowing a physician to extend a discontinued certificate of
involuntary admission by motion to the court).
38 Re C(J), supra note 29.
39 Ibid.
40 See also Re P (21 November 2008), Oshawa TO-08-2990, 2008 CanLII 65731 (Ont Con-
sent and Capacity Board) (CCB refusing to grant Charter relief under section 24 of the
Charter because of the failure to notify patient of his involuntary admission and to pro-
JURISDICTION OF MENTAL HEALTH TRIBUNALS 277
The question of whether administrative tribunals may administer
remedies under section 24(1) of the Charter was recently reviewed by the
SCC in Conway.41 Seeking relief under section 24(1), Conway applied to
the Ontario Review Board (ORB) for an absolute discharge, a direction
that the hospital provide specific treatment, and some other remedies, al-
leging breaches of a number of sections of the Charter. Such review
boards are tribunals established under Canadas Criminal Code that re-
view the status of every person who has been found to be not criminally
responsible or unfit to stand trial for criminal offences on account of a
mental disorder.42 The ORB concluded that it had no Charter jurisdiction
in light of its enabling legislation and function, and with regard to its own
past rulings and the rulings of other review boards confirming these
boards lack of section 24(1) jurisdiction. The Ontario Court of Appeal, by
a two to one margin, confirmed that the ORB lacked jurisdiction to hear
Charter applications or to grant Charter remedies under section 24(1).43
On further appeal, the SCC determined that the ORB had remedial juris-
diction under section 24(1).44 It also expanded upon the wider issue of the
relationship between the Charter, its remedial provisions, and adminis-
trative tribunals generally.
The SCC characterized as unhelpful the previous practice of asking
every tribunal from which a Charter remedy was sought whether it
was competent to grant a particular remedy within the meaning of sec-
tion 24(1):
The question instead should be institutional: Does this particular
tribunal have the jurisdiction to grant Charter remedies generally?
The result of this question will flow from whether the tribunal has
the power to decide questions of law. If it does, and if Charter juris-
diction has not been excluded by statute, the tribunal will have the
jurisdiction to grant Charter remedies in relation to Charter issues
arising in the course of carrying out its statutory mandate (Cuddy
Chicks trilogy; Martin). A tribunal which has the jurisdiction to
grant Charter remedies is a court of competent jurisdiction. The tri-
bunal must then decide, given this jurisdiction, whether it can grant
the particular remedy sought based on its statutory mandate. The
vide him with a rights adviser on the basis that the board was not a court of competent
jurisdiction).
41 Supra note 33.
42 Criminal Code, RSC 1985, c C-46, ss 672.38-672.4 (outlining the establishment of re-
view boards and guidelines for their composition). The ORB is made up of lawyers, psy-
chiatrists, psychologists, and members of the public.
43 R v Conway, 2008 ONCA 326, 90 OR (3d) 335.
44 Conway, supra note 33.
278 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
answer to this question will depend on legislative intent, as dis-
cerned from the tribunals statutory mandate (the Mills cases).45
In finding that the ORB had the power to decide questions of law, the
SCC relied heavily on the provisions of the Criminal Code, which provide
that any party may appeal an ORBs disposition on questions of law, fact,
or mixed fact and law. Interestingly, the court in Jane Patient had reject-
ed this very same argument when reviewing the similar appeal provisions
for CCB decisions.46 Unfortunately, in Conway the SCC did not address
Jane Patient in its reasoning, though post-Conway case law has confirmed
that the appeal provisions of a tribunal may be determinative in answer-
ing whether a tribunal has the authority to deal with questions of law.47
The decisions of the Court in Martin48 and Tranchemontagne49 have
gradually expanded the approach to the scope of the Charter and its rela-
tionship with administrative tribunals, with Conway being an attempt
to consolidate the results of that expansion.50 It is hard to avoid the con-
clusion that Conway has, by implication, overturned the view of the court
in Jane Patientnamely, that appeal provisions are not determinative of
a tribunals power to deal with questions of law. Since legislation in On-
tario and several other Canadian provinces provides similar grounds for
appeal from decisions of MHTs,51 it therefore appears that at least those
Canadian MHTs that have not been previously found to be courts of com-
petent jurisdiction may be found to have the authority to decide questions
of law.
A. Legislative Intent to Exclude Charter Jurisdiction
The SCC also characterized the function of the ORB as follows:
The Board is a quasi-judicial body with significant authority over a
vulnerable population [and it was established] as a specialized
statutory tribunal with ongoing supervisory jurisdiction over the
45 Conway, supra note 33 at para 22 [emphasis added].
46 Supra note 21.
47 Carrier Sekani Tribal Council v British Columbia (Utilities Commission), 2009 BCCA
67 at para 40, 89 BCLR (4th) 298.
48 Supra note 18.
49 Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14,
[2006] 1 SCR 513 [Tranchemontagne].
50 Conway, supra note 33 at para 23.
51 See e.g. OMHA 1990, supra note 22, s 48(1); Mental Health Act, RSY 2002, c 150, s 37;
The Mental Health and Consequential Amendments Act, SM 1998, c 36, s 59(1); An Act
Respecting Mental Health Care and Treatment, SNL 2006, c M-9.1, s 73(1); Involuntary
Psychiatric Treatment Act, SNS 2005, c 42, s 79(1).
JURISDICTION OF MENTAL HEALTH TRIBUNALS 279
treatment, assessment, detention and discharge of those accused
who have been found not criminally responsible by reason of mental
disorder.52
On this basis, the SCC held that there was no support for the notion that
Parliament intended to withdraw Charter jurisdiction from the scope of
the ORBs mandate.
Provincial MHTs have different functions than review boards consti-
tuted under the Criminal Code. The former do not have ongoing supervi-
sory jurisdiction over the treatment, assessment, detention and dis-
charge of patients appearing before them. Rather, they review decisions
made by health practitioners at specific points in time. It is therefore un-
clear to what extent a court would deem the legislative functions of an
MHT to be similar to the ones of a review board in terms of intention to
exclude the Charter.
As discussed above, some Canadian jurisdictions, such as British Co-
lumbia, have explicit limitation clauses that bar tribunals from entertain-
ing constitutional questions, thus expressing a clear intention to exclude
any Charter claims. Less clear are provisions such as section 70.1 of On-
tarios HCCA, which precludes the CCB from deciding the constitutional
validity of an Act or a regulation.53 Although this amounts to a clear in-
tention to exclude section 52 jurisdiction, it may not amount to a clear in-
tent to withdraw this tribunals remedial power under section 24(1).
This issue could be argued in one of two ways. First, if the legislature
did not want an adjudicative agency to deal with the constitutional validi-
ty of an act, it surely, impliedly, did not want it to be dealing with other
constitutional matters such as section 24(1). As discussed below, however,
this rejection-by-implication argument was rejected by the majority of the
SCC in Tranchemontagne,54 a case in which the Court addressed the ju-
risdiction of adjudicative agencies over quasi-constitutional legislation.
The majority in Tranchemontagne distinguished between questions of law
under the Charter and under provincial human rights codes. This distinc-
tion is harder to make when comparing questions of law arising from sec-
tion 52 and section 24(1), as these are of the same nature.
In the alternative, the express reference to constitutional validity may
mean that the legislature assumed that an administrative tribunal such
as the CCB had full Charter/constitutional jurisdiction, and only found it
necessary to exclude the constitutional validity aspect. According to this
52 Conway, supra note 33 at para 84 [emphasis added].
53 Supra note 23.
54 Supra note 49.
280 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
interpretation, the power to grant remedies under section 24(1) and under
the common law remains.55 Courts may adopt this narrow interpretation
of provisions with similar wording to section 70.1 of the Ontario HCCA
and find that the tribunal still has authority to provide a remedy under
section 24(1). This alternative interpretation is in line with the developing
jurisprudence of the SCC, as reflected in Martin and Tranchemontagne.
B. A Tribunals Jurisdiction over Remedies
Assuming neither the legislation nor the function of an MHT clearly
withdraws section 24(1) jurisdiction, the SCC in Conway affirmed:
[T]he remaining question is whether the tribunal can grant the par-
ticular remedy sought, given the relevant statutory scheme. Answer-
ing this question is necessarily an exercise in discerning legislative
intent. On this approach, what will always be at issue is whether the
remedy sought is the kind of remedy that the legislature intended
would fit within the statutory framework of the particular tribu-
nal. Relevant considerations in discerning legislative intent will in-
clude those that have guided the courts in past cases, such as the
tribunals statutory mandate, structure and function.56
Considering the scope and nature of the ORBs statutory mandate and
functions, the Court noted the requirements of section 672.54 of the Crim-
inal Code, and the four enumerated statutory criteria: the need to protect
the public from dangerous persons; the patients mental condition; the re-
integration of the patient into society; and the patients other needs.
The Court found that the ORB had a necessarily broad discretion to
consider a large range of evidence in order to fulfill this mandate.57 After
noting that the ORB could not grant an absolute discharge to an individu-
al who remained a significant threat to the safety of the public and that a
disposition may not include any conditions that prescribe or impose
treatment on a non-criminally responsible accused, the Court concluded
that, subject to these limits,58 the content of the conditions included in a
disposition was at the ORBs discretion:
55 I thank James Sprague for his comments on this issue.
56 Supra note 33 at para 82 ×..
57 Ibid at para 90.
58 Left somewhat in flux was the situation as it related to some of the subsidiary Charter
claims made by Conway, in relation to his complaint about being housed near a con-
struction site, which had not yet been determined by the ORB. Other alleged violations
of Conways Charter rights related to unfair treatment by staff and the hospitals failure
to provide an atmosphere that was free of threats of attack and attacks by other pa-
tients, and free of racism.
JURISDICTION OF MENTAL HEALTH TRIBUNALS 281
In this way, the Board has the statutory tools to supervise the
treatment and detention of dangerous [not criminally responsible
(NCR)] patients in a responsive, Charter-compliant fashion and has
a broad power to attach flexible, individualized, creative conditions
to the discharge and detention orders it devises for dangerous NCR
patients.59
The terms and conditions imposed by review boards when making
dispositions may, therefore, include ordering governments to supply
community housing when ordering a conditional discharge,60 ordering cer-
tain living conditions for forensic in-patients, or setting up timelines for
the transfer of forensic patients to lower-security facilities. Some of the
conditions may be deemed a limited way to give effect to forms of entitle-
ment. In contrast with review boards, most MHTs have no power to im-
pose terms or conditions. Rather, their jurisdiction is generally restricted
to confirming decisions to civilly commit a person and findings of incapaci-
ty to consent to medical treatment. Conways application to the work of
most MHTs appears, therefore, to be of limited scope.
C. Charter Jurisdiction Does Not Allow Tribunals to Grant New Remedies
The narrow effect of Conway regarding the work of MHTs is also sup-
ported by the fact that Conways appeal was ultimately dismissed because
he was not entitled to the particular Charter remedies he sought. Admin-
istrative tribunals cannot order treatment or other remedies beyond the
agencys statutory power (for example, costs, injunctions, damages, etc.).
The Conway decision appears to turn, as such decisions always do, on the
remedies available to the claimant as defined in the statute. The test for
jurisdiction to grant a remedy was not changed by Conway: if the legisla-
ture or Parliament did not intend that a tribunal have a certain remedial
power, section 24(1) of the Charter does not give that tribunal anything
more. An individual before an administrative tribunal is not entitled to
receive a remedy not contemplated by the legislation, Charter violation or
not.
IV. The Application of Human Rights Codes
As discussed above, Charter jurisprudence in Canada neither recog-
nizes a positive duty to provide adequate health care, nor does it give
MHTs any remedial powers they have not been granted by legislation. In
addition to the Charter, individuals can avail themselves of the protection
59 Conway, supra note 33 at para 94.
60 Cristin Schmitz, Top Court Merges Admin Laws Three Discrete Universes, The
Lawyers Weekly 30:8 (25 June 2010) 3.
282 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
provided by human rights legislation. Both federal and provincial human
rights codes address discrimination on certain prescribed grounds, includ-
ing mental disorder and mental impairment.61 One example is Ontar-
ios Human Rights Code, which upholds the right to equal treatment
with respect to services, goods and facilities.62 A person with a mental
disability could potentially advance a claim to adequate treatment on the
basis of discrimination in the provision of goods, services, and facilities.
Thus, claims under human rights codes encompass a broader concep-
tion of rights than the Charter does. The various human rights codes also
differ from section 15 of the Charter in that they provide protection
against discrimination63 by individuals in the private sector; the Charters
equality rights provision only extends to the actions of governments. The
remedy for a provision that is found to breach human rights legislation is
a declaration of inapplicability rather than a finding of invalidity under
the Charter.64
61 See e.g. Human Rights Code, RSO 1990, c H.19, s 10(1) [Ontario Code]; Canadian Hu-
man Rights Act, RSC 1985, c H-6, s 3 (prohibiting discrimination on the basis of disa-
bility).
62 Ontario Code, supra note 61, s 1.
63 The term discrimination is not defined in either the Ontario Code (ibid) or section 15
of the Charter (supra note 2) but has been developed in R v Kapp, 2008 SCC 41 at para
17, [2008] 2 SCR 483 (the test to be applied for determining whether discrimination ex-
ists has two steps: (1) Does the law create a distinction based on an enumerated or
analogous ground?; and (2) Does the distinction create a disadvantage by perpetuat-
ing prejudice or stereotyping?). See also Ontario (Director, Disability Support Program)
v Tranchemontagne, 2010 ONCA 593, 102 OR (3d) 97 (the test in Kapp applies equally
to both the Charter and human rights legislation).
64 If an MHT were found to have the authority to apply human rights legislation, a party
alleging discrimination based on mental disorder or mental impairment would presum-
ably choose to raise this issue before the MHT and then decide whether to proceed be-
fore a human rights tribunal. Ontario human rights legislation permits concurrent ap-
plications before an adjudicative agency and the provincial Human Rights Tribunal
(HRT) with respect to the same human rights issue. Pursuant to the Ontario Code the
HRT has the power to defer a hearing until the matter has been concluded by another
tribunal (supra note 61, s 45). See e.g. Pando v Colleges of Applied Arts and Technology
Pension Plan, 2009 HRTO 59 (available on CanLII), [2009] OHRTD No 59 (QL).
If an application is deferred, applicants may reactivate their application if the HRT
considers the human rights claim has not been appropriately dealt with by the other
tribunal (Human Rights Tribunal of Ontario, Rules of Procedure, r 14.3-14.4). For a
more thorough discussion of the Ontario HRTs concurrent jurisdiction, see Mary Cor-
nish, Fay Faraday & Jo-Anne Pickel, Enforcing Human Rights in Ontario (Aurora:
Cartwright Group, 2009) at 107-17.
In the British Columbia context, see British Columbia (Workers Compensation
Board) v British Columbia (Human Rights Tribunal), 2010 BCCA 77, 2 BCLR (5th)
274. In this case, the British Columbia Court of Appeal held that the British Columbia
Human Rights Tribunal (BCHRT) had the discretion to reject all or part of a human
JURISDICTION OF MENTAL HEALTH TRIBUNALS 283
The authority of adjudicative agencies to deal with human rights legis-
lation was addressed in the aforementioned Tranchemontagne decision.65
This case involved two individuals who challenged a finding that, alt-
hough their circumstances satisfied the definition of disability under the
Ontario Disability Support Program Act, 1997,66 they were ineligible for
benefits under that act because their disabling condition was substance
abuse. They argued that this exclusion violated the Ontario Code.
The Social Benefits Tribunal (SBT) found that it did not have jurisdic-
tion to consider whether a section of the act was inapplicable by virtue of
the Ontario Code. The SCC applied the analysis in Martin (subsequently
reiterated in Conway) and found that the SBT was a tribunal empowered
to decide questions of law and was therefore presumed to have the power
to look beyond its enabling statutes to apply the whole law to a matter
properly before it. The majority of the Court therefore held that the SBT
had jurisdiction to consider the Ontario Code. Tranchemontagne confirms
that administrative tribunals with authority to decide questions of law
must give effect to the primacy of human rights legislation over ordinary
legislation.67
As discussed above, the SCC in Tranchemontagne split with respect to
the effects of certain amendments to the SBTs enabling legislation which,
rights complaint if it believed that the substance of the complaint, or that part of the
complaint, had been appropriately dealt with in another proceeding before another
agency pursuant to the Human Rights Code, RSBC 1996, c 210, ss 25(1), 27(1)(f) [BC
Code]. By reason of the express legislative direction in section 27(1) (ibid) it was open to
the BCHRT to allow the same complainants who had lost before the Workers Compen-
sation Board review division to argue the same point before the BCHRT. In doing so,
the BCHRT was not sitting on appeal from the decision of the review decision. This is a
significant issue because proceedings before most MHTs will invariably take place and
conclude within a short period of time, given the tight statutory timelines under which
they operate (for example, the CCB must begin its hearings within seven days of an ap-
plication being received and decisions must be rendered within one day after the hear-
ing ends, pursuant to section 75 of the HCCA, supra note 23). These short timelines in
effect render most human rights proceedings moot. Additionally, the costs associated
with human rights proceeding can make them prohibitive (although making human
right claims before MHTs may also result in protracted and expensive litigation).
65 Supra note 49.
66 Being Schedule B to the Social Assistance Reform Act, SO 1997, c 25 [ODSPA].
67 See also Raj Anand & Mark Edelstein, The Tribunal Application of the Human Rights
Code: Tranchemontagne and Beyond (Paper delivered at the Six-Minute Administra-
tive Lawyer Conference, Law Society of Upper Canada, 23 February 2010), [un-
published] (arguing that Tranchemontagne, supra note 49, should not be seen as
groundbreaking as the Supreme Court of Canada had already established in McLeod,
supra note 19, that administrative tribunals can and must apply broader law where
necessary). For similar reasons, Conway (supra note 33) should not be considered
groundbreaking.
284 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
similarly to the CCB, prohibited the SBT from considering the constitu-
tional validity of any act or regulation. The majority of the Court held that
this statutory prohibition did not in itself preclude the application of hu-
man rights legislation, as issues arising under human rights codes belong
to a different category of questions of law than do Charter-related issues.68
Furthermore, the minority in Tranchemontagne used the test in Mar-
tin to find that practical considerations indicated the legislatures inten-
tion that the SBT not consider legal questions regarding the validity of a
statute.69 These practical considerations were similar to the grounds used
in Re C(J) and Jane Patient, which included the tribunals institutional
characteristics and the inappropriateness of the SBT deciding such com-
plex, time-consuming legal issues. The SBTs hearings are informal, pri-
vate, and brief. The SBT was meant to provide an efficient, effective, and
quick process. Imposing human rights legislation compliance hearings on
it would inevitably have had an impact on its ability to assist the disabled
community in a timely way, as indeed happened when the case was sent
back to the SBT for reconsideration.70 The proceedings before the CCB
were also significantly delayed in the case of Jane Patient.71
The comments expressed by the minority regarding the SBT are ap-
plicable to MHTs, whose human rights code jurisdiction has not been ex-
pressly removed. Human rights litigation before MHTs will also affect the
efficient, effective, and speedy adjudication of matters. Whether claims for
adequate care, founded on human rights legislation, will be invoked be-
fore MHTs remains to be seen.72 The uncertainty regarding a mental
68 Tranchemontagne, supra note 49. The majority distinguished between the power to in-
validate legislation and its authority to apply a provincial human rights code. However,
the minority held that the prohibition to consider the constitutional validity of legisla-
tion meant the legislature intended to preclude the SBT from deciding questions of the
operability of a provision as a consequence of the application of the Ontario Code (supra
note 61), as both the Ontario Code and the Charter were of a similar nature.
The case was sent back to the SBT to rule on the applicability of section 5(2) of the
ODSPA (supra note 66). The tribunal concluded that the respondents were persons
with a disability and were entitled to income support under the ODSPA, irrespective of
section 5(2). It decided that this section was discriminatory and inconsistent with the
Ontario Code. The decision of the SBT was upheld on appeal by Ontarios Superior
Court of Justice in Ontario (Director, Disability Support Program) v Tranchemontagne
(2009), 95 OR (3d) 327, 250 OAC 23 (Sup Ct (Div Ct)).
69 Tranchemontagne, supra note 49.
70 It is interesting to note and perhaps puzzling that none of the judges in Conway (supra
note 33) disclosed a similar concern with the impact that section 24(1) arguments may
have on tribunal proceedings.
71 Supra note 21.
72 Another point that awaits a legal answer is how Tranchemontagne (supra note 49) af-
fects the jurisdiction of MHTs, such as the British Columbia Mental Health Review
JURISDICTION OF MENTAL HEALTH TRIBUNALS 285
health tribunals power to hear a Charter or human rights claim creates a
difficult predicament for someone trying to advance such arguments. A
party may choose not to raise the latter before an MHT to avoid delays
and to obtain a speedy resolution of his or her claim. However, the party
then runs the risk of not being able to raise such a claim before a review-
ing court, lest the court decline jurisdiction because the appellant did not
exhaust all recourse to tribunals. One would expect the courts to take a
lenient view in cases in which the party was self-represented at the tribu-
nal level. A party with legal representation will, however, be forced to
make a strategic choice.
On this point, it is worth noting that an individual making a claim
under human rights legislation will have to show unjustified discrimina-
tion between the provision of services for the mentally ill and the physi-
cally ill (or some other comparator group).73 This may be an insurmounta-
ble barrier that requires proving that the person with the mental disabil-
ity is seeking access to existing government benefits.74 For example, a
claim to appropriate community housing, residential, or treatment facili-
ties may fail if no such service is provided to a comparator group.75 Thus,
limited or non-existent government funding may by itself create an addi-
tional legal barrier for a person arguing for entitlement to a health benefit
under a human rights code. Alternative arguments could be made on the
basis of discrimination between individuals suffering different types of
mental disorder; for example, if health services available to the mentally
ill were not available to the complainant or only offered to a specific gen-
der or age group.
Board, that were given discretion to decline jurisdiction to apply a Human Rights Code.
See BCATA, supra note 31, s 46 (specifying which of this provinces administrative tri-
bunals have jurisdiction to deal with complaints based on alleged violations of
the Human Rights Code); BCMHA, supra note 31, s 24.2, as amended by SBC 2007, c
14, s 46 (giving the Mental Health Review Board the discretion to decline jurisdiction to
apply the BC Code, supra note 64).
73 New Brunswick v Human Rights Commission (NB), 2010 NBCA 40, 360 NBR (2d) 283
[Human Rights Commission (NB)]. A comparator group is necessary to determine
whether a prima facie case of discrimination has been established. Equality is an ines-
capably comparative concept: Andrews v Law Society of British Columbia, [1989] 1
SCR 143 at 164, 56 DLR (4th) 1. See also Martin, supra note 18; University of British
Columbia v Berg, [1993] 2 SCR 353, 102 DLR (4th) 665.
74 The principles for the determination of an appropriate comparator group were dis-
cussed by Chief Justice McLachlin in Auton (Guardian ad litem of) v British Columbia
(Attorney General), 2004 SCC 78 at paras 48-62, [2004] 3 SCR 657 [Auton].
75 Human Rights Commission (NB), supra note 73.
286 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
V. Potential Claims before Mental Health Tribunals to Advance Rights to
Adequate Care
The absence of legal provisions addressing the right to adequate
health care for the mentally ill continues to be identified as one of the
main shortcomings of modern mental health legislation:
Any contemporary model of mental health law (including rights
protections) must surely be judged mainly by how well it engages
with these new patterns of service, and the degradation of service
quality and resourcing often associated with contemporary delivery
of community mental health services. It is here that current models
of mental health adjudication, and any wider human rights laws, are
most found wanting. … [However], [o]verseas experience in Canada
or the United Kingdom demonstrates that the omission of positive
(economic and social) rights, such as the right of everyone to the
enjoyment of the highest attainable standard of physical and mental
health, renders human rights laws of little assistance in leveraging
access to treatment services or resources.76
The call for a more holistic vision of mental health care can find its
theoretical underpinning in the work of Henry Shue and other scholars
who have long argued for a model of basic rights that would include corre-
sponding duties.77 For Shue, those duties take three essential forms: to
avoid deprivation, to protect from deprivation, and to aid the deprived. All
of these duties must be performed to guarantee that a basic right, such as
a right to physical security, is respected. The first form can be considered
76 Terry Carney, Involuntary Mental Health Treatment Laws: The Rights and the
Wrongs of Competing Models? in Bernadette McSherry & Penelope Weller, eds, Re-
thinking Rights-Based Mental Health Laws (Oxford: Hart Publishing, 2010) 257 at 264-
65 [footnotes omitted]. Similar claims have been made specifically about the Canadian
context, see e.g. H Archibald Kaiser, Canadian Mental Heath Law: The Slow Process of
Redirecting the Ship of State (2009) 17 Health LJ 139. But see, in the international
law context, International Covenant on Economic, Social and Cultural Rights, 16 De-
cember 1966, 993 UNTS 3, art 12(1), Can TS 1976 No 46, (entered into force 3 January
1976, accession by Canada 19 May 1976) [ICESCR]; Principles for the Protection of Per-
sons with Mental Illness and for the Improvement of Mental Health Care, GA Res
46/119, UNGAOR, 46th Sess, Supp No 49, UN Doc A/RES/46/119, (1991) 188 at 190
[UN Mental Health Principles] (principle 8(1): [e]very patient shall have the right to
receive such health and social care as is appropriate to his or her health needs, and is
entitled to care and treatment in accordance with the same standards as other ill per-
sons). The right to appropriate mental health care, being a positive right requiring
more proactive governmental intervention for its attainment, is by far the most contro-
versial of mental health rights.
77 Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 2d ed
(Princeton, NJ: Princeton University Press, 1996). But see Roses critique of the use of
the rights discourse as an appropriate way for obtaining resources for the mentally ill:
Nikolas Rose, Unreasonable Rights: Mental Illness and the Limits of the Law (1985)
12:2 JL & Socy 199.
JURISDICTION OF MENTAL HEALTH TRIBUNALS 287
a negative duty, which is reflected in the provisions of most mental health
legislation and in the traditional review role of MHTs. The second and
third duties require state action to ensure access to adequate health care
for the mentally ill. In other words, the second and third obligations owed
to those deprived of their liberty mean they should actually get the care
and treatment needed.78
This wider conceptualization of rights, which encompasses reciprocity,
appears to be reflected in international human rights instruments such as
the Universal Declaration of Human Rights;79 the International Covenant
on Economic, Social and Cultural Rights;80 the UN Mental Health Princi-
ples;81 and the Convention on the Rights of Persons with Disabilities.82
This raises a question as to the appropriate legal forum for making
such claims. As seen from the review above, the Canadian court system
has not proven to be an effective arena for deciding claims by the mentally
ill for adequate care. This is not surprising in light of the historical reluc-
tance of the judiciary to recognize constitutional health claims in gen-
eral,83 as confirmed in Auton,84 and reinforced by the minority opinion in
78 Brenda Hale, The Human Rights Act and Mental Health Law: Has it Helped? (2007)
Journal of Mental Health Law 7 at 17. See also Nigel Eastman, Mental Health Law: Civil
Liberties and the Principle of Reciprocity (1994) 308 Brit Med J 43.
79 GA Res 217(III), UNGAOR, 3d Sess, Supp No 13, UN Doc A/810, (1948) 71.
80 Supra note 76.
81 Supra note 76, principle 17(2).
82 GA Res 61/611, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/106, (2007) 2.
There are a number of positive clauses in the convention that require governments
to provide access to community support services, habilitation and rehabilitation
services, awareness-raising measures, and other public health programmes.
These may become an important tool for those who seek further funding for certain
areas of health care dealing with the mentally ill. See generally Arlene S Kanter,
The Promise and Challenge of the United Nations Convention on the Rights of
Persons with Disabilities (2007) 34:2 Syracuse J Intl L & Com 287.
83 Martha Jackman, Section 7 of the Charter and Health-Care Spending in Gregory P
Marchildon, Tom McIntosh & Pierre-Gerlier Forest, eds, The Fiscal Sustainability of
Health Care in Canada: Romanov Papers, Volume 1 (Toronto: University of Toronto
Press, 2004) 110; Martha Jackman, The Right to Participate in Health Care and
Health Resource Allocation Decisions Under Section 7 of the Canadian Charter (1995-
1996) 4:2 Health Law Review 3.
84 Auton, supra note 74 (holding that British Columbias non-inclusion of autism treat-
ment within the provincial medicare system did not violate section 15 of the Charter).
For a general discussion of Auton and its legal implications, see Martha Jackman,
Health Care and Equality: Is there a Cure? (2007) 15 Health LJ 87.
288 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Chaoulli.85 These decisions in effect reaffirmed the lack of a constitutional
right to health care in Canada, although the minority opinion in Chaoulli
also supports the principle of reciprocity by making it clear that access to
health care falls under section 7 of the Charter.86 This may bolster an ar-
gument in favour of an MHTs discretionary, positive, remedial role when
interpreting legislation according to Charter values. An MHTs decision
must be made consistently with the Charter and its values.87 As the SCC
acknowledged in Conway, by heeding the submissions of the parties and
by trying to ascertain with some precision the least onerous and least re-
strictive disposition in their normal operation, both review boards and
MHTs may already be addressing areas where the Charter and clinical
practice could be said to overlap. Charter considerations may in many
cases already be accounted for as tribunals aim to arrive at a decision that
impinges on [the claimants] liberty rights as minimally as possible, hav-
ing regard to the particular circumstances of each case,88 and which
makes the liberty of the person a major preoccupation.89
In other words, the remedial provisions of a tribunal may already pro-
vide it with the statutory tools to craft a decision in a responsive, Char-
ter-compliant fashion without the need to avail itself of a Charter or hu-
man rights remedy. Tribunals must act consistently with the Charter
and its values when exercising their statutory functions.90 In the words of
the SCC:
[I]t may well be that the substance of Mr. Conways complaint … can
be fully addressed within the framework of the Boards statutory
mandate and the exercise of its discretion in accordance with Char-
ter values. If that is what the Board ultimately concludes to be the
case, resort to s. 24(1) of the Charter may not add either to the
85 Chaoulli v Quebec (Attorney General), 2005 SCC 35, [2005] 1 SCR 791 [Chaoulli] (hold-
ing that provincial restrictions on private health funding violated the Quebec and Ca-
nadian charters).
86 Ibid at paras 34, 100. For a more general discussion, see generally Lorne Sossin, To-
wards a Two-Tier Constitution? The Poverty of Health Rights in Colleen M Flood,
Kent Roach & Lorne Sossin, eds, Access to Care, Access to Justice: The Legal Debate
Over Private Health Insurance in Canada (Toronto: University of Toronto Press, 2005)
161; Martha Jackman, The Last Line of Defence for [Which?] Citizens: Accountability,
Equality, and the Right to Health in Chaoulli (2006) 44:2 Osgoode Hall LJ 349.
87 Re GJ (23 July 2010), 2010 CanLII 47505, 2010 CarswellOnt 6073 (WL Can) (Ont Con-
sent and Capacity Board) (a delay in scheduling a transfer hearing did not warrant the
board ordering the transfer of the patient).
88 Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625 at 645, 175
DLR (4th) 193.
89 See generally Penetanguishene Mental Health Centre v Ontario (Attorney General),
2004 SCC 20, [2004] 1 SCR 498 [Penetanguishene].
90 Conway, supra note 33 at para 78.
JURISDICTION OF MENTAL HEALTH TRIBUNALS 289
Boards capacity to address the substance of the complaint or to pro-
vide appropriate redress.91
The section below explores some potential areas in which an MHT
may use Charter values to further the right to adequate health care.
A. Ordering, Recommending, or Reviewing Treatment and the Surrounding
Conditions
A tribunals review of the appropriateness of the treatment proposed
to an individual appearing before an MHT may be necessary to their func-
tion of preventing an unjustified deprivation of liberty or physical integri-
ty.92 It can lead health services to rethink their priorities and to reallocate
their resources in order to give effect to these various tribunal orders. The
purposes of the statutory scheme may then be used to advance provision
of the best possible care in the least restrictive environment.93 Neverthe-
less, without careful control, there is a risk that an MHT may overstep its
jurisdiction and be challenged as encroaching on the clinical decision
making of health care workers:94 as discussed before, physicians cannot be
ordered to follow a specific treatment plan in a way that is contrary to
their ethical obligations and professional judgment.95
91 Ibid at para 103. Charter values can be equally applied to a tribunals procedural (as
opposed to substantive) rulings in terms of ensuring fair procedure without the need to
consider Charter jurisdiction. See e.g. R v S(N), 2010 ONCA 670, 102 OR (3d) 161 (a
preliminary inquiry judge must take the Charter into account when deciding whether a
woman must be forced to remove her niqab when testifying). The jurisdiction of prelim-
inary inquiry judges (who had been previously found not to constitute a court of compe-
tent jurisdiction) to consider the Charter did not come from section 24(1), but rather
from the application of Charter values to a question of fair procedure in the courtroom,
over which the preliminary inquiry judge had a statutory power.
92 See Genevra Richardson & David Machin, Doctors on Tribunals: A Confusion of
Roles (2000) 176:2 British Journal of Psychiatry 110. The tribunal has to deter-
mine a legal question, but it is a legal question set in a health-care context and de-
pendent for its interpretation on a clinical opinion. Thus, an examination of the
statutory criteria can lead almost inexorably to a wider discussion of the patients
care and future plans (ibid at 113).
93 Terry Carney, David Tait & Fleur Beaupert, Pushing the Boundaries: Realising
Rights Through Mental Health Tribunal Processes? (2008) 30:2 Sydney L Rev 329
at 331, n 7 (discussing the objects of the Mental Health Act 2007 (NSW)).
94 Ibid at 355.
95 British Columbia (AG) v Astaforoff, [1983] 6 WWR 322, 47 BCLR 217 (SC); Rotaru v
Vancouver General Hospital Intensive Care Unit, 2008 BCSC 318 (available on CanLII).
In the UK context, see Re R (1991), [1992] Fam 11 at 26, [1991] 4 All ER 177 (CA); Re J
(1990), [1991] Fam 33 at 41, [1990] 3 All ER 930 (CA); Re J (1992), [1992] 4 All ER 614
at 622-23, [1992] 3 WLR 507.
290 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Not surprisingly, Canadian MHTs have been granted the power to
make only nonbinding recommendations respecting the treatment or
care of a patient96 or where a violation of a patients rights has been de-
termined.97 Some foreign jurisdictions have given MHTs the authority to
make nonbinding recommendations regarding a course of treatment, in-
cluding the power to order the revision of treatment plans in certain cir-
cumstances98 and to order a psychiatrist to make a CTO or to vary a
CTO.99
While nonbinding recommendations may potentially lead to the recon-
sideration of a course of treatment or to changes in hospital policy, non-
compliance with such recommendations has no legal consequences. Thus,
these examples are quite limited in scope. This is more evident when con-
trasted with the authority to impose binding conditions that review
boards have in Canada. In Mazzei, the SCC recognized that review boards
could issue binding conditions regarding the supervision of a patient (but
could not prescribe or impose treatment) given their supervisory role and
discretion to impose conditions when making orders under section 672.54
of the Criminal Code.100 Although the distinction between making super-
visory orders regarding treatment and making orders prescribing treat-
ment is not always easy to draw, the SCC appears to be taking an ap-
proach that balances the need to allow deference to the opinion of health
professionals with the need to ensure the purposes of the legislation are
met. It could be argued that perhaps some of the purposes of mental
health legislation are similar to the ones pertaining to review boards and
may therefore support a broader role for MHTs.101 Nevertheless, Mazzei
would not apply to MHTs given their different role and their lack of power
to impose conditions, as discussed above. Left with no source of jurisdic-
96 See e.g. Involuntary Psychiatric Treatment Act, SNS 2005, c 42, s 68(2) (providing that
the MHT, in reviewing involuntary admissions, has the authority to make such rec-
ommendations to the [health facilitys] chief executive officer as it sees fit respecting the
treatment or care of a patient).
97 See e.g. Mental Health Care and Treatment Act, SNL 2006, c M-9.1, ss 72(1)(c), 72(2).
98 Mental Health Act 1986 (Vic), s 35A gives the states MHT the power to review pa-
tients treatment plans as part of the conduct of every review of the patients invol-
untary admission. See also section 19A, which gives the MHT the power to order the
revision of treatment plans that fail to meet the statutory requirements or are not
capable of being implemented. The MHT does not have the power to make treat-
ment decisions. Nor can physicians be ordered to follow a specific treatment in a
way that is contrary to their ethical obligations and professional judgment.
99 Ibid, ss 36(4), 36C(3)(a).
100 Mazzei v British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7
at para 31, [2006] 1 SCR 326 [Mazzei].
101 See e.g. HCCA, supra note 23, s 1.
JURISDICTION OF MENTAL HEALTH TRIBUNALS 291
tion to issue binding conditions regarding supervision or to make any type
of recommendation, some MHTs may attempt to scrutinize treatment
through the subtle persuasion of medical practitioners appearing before
MHTs.102
In sum, neither a breach of Charter rights nor discrimination in the
provision of services under the Ontario Code would give an MHT jurisdic-
tion to provide a remedy not contemplated by its statutory authority.
Thus, MHTs are likely to continue to refuse to entertain requests to order
treatment following Conway.103 For example, in Re A. the CCB has held
that it has no jurisdiction to assess the placement of a fifteen-year-old in-
voluntary in a psychiatric intensive care unit.104 The CCB also found it
had no jurisdiction to attach treatment conditions to its decision confirm-
ing a minors involuntary admission where no local adolescent psychiatric
unit was available and where transferring the patient to such a unit out
of town was not in the minors best interests because she would be sepa-
rated from her mother and community supports.105
A more nuanced question is whether an MHT could review the condi-
tions in a CTO that allegedly discriminate against the patient, either un-
der the Charter or under human rights legislation (assuming the tribunal
has jurisdiction to deal with one or both these grounds). Terms included
in CTOs sometimes go beyond what is traditionally deemed to be medical
treatment and may include housing, socializing arrangements, and even
travel restrictions.106
Legislation protecting civil rights in other jurisdictions has been in-
terpreted to allow restrictions on housing or socializing conditions in
102 Carney, Tait & Beaupert, supra note 93.
103 As the SCC commented in the context of review boards, allowing administrative tribu-
nals to interfere with hospitals treatment plans and practices would be inappropriate
(Mazzei, supra note 100 at para 31). In Conway, the Court emphasized that [t]he au-
thority to make treatment decisions lies exclusively within the mandate of provincial
health authorities in charge of the hospital where [a not criminally responsible] patient
is detained (supra note 33 at para 100).
104 (6 April 2005), 2005 CanLII 12686, 2005 CarswellOnt8592 (WL Can) (Ont Consent and
Capacity Board). The CCB noted that this was not a desirable environment for the pa-
tient but that the alternative options (the general psychiatric ward or the pediatric
ward) were equally unsuitable.
105 Re AC (23 February 2005), 2005 CanLII 7115, 2005 CarswellOnt 8616 (WL Can) (Ont
Consent and Capacity Board).
106 Anita Gibbs, John Dawson & Richard Mullen, Community Treatment Orders for Peo-
ple with Serious Mental Illness: A New Zealand Study (2006) 36:7 British Journal of
Social Work 1085 at 1093.
292 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
CTOs.107 In Ontario, the CCB has held that it has no jurisdiction to review
these types of conditions if they can be characterized as treatment. This
principle applied to the terms of a CTO that required the patient to have
any visitors to his residence pre-approved by his landlord or by the
treatment team.108 In another case, the CCB held that it had no jurisdic-
tion to review the terms of a Community Treatment Plan (CTP) drafted
under a CTO because the CTP itself constituted treatment; in the alterna-
tive, the CCB held that the CTPs identification of treatment as all
oral/injectable psychiatric medication was not too vague, but rather en-
sured flexibility for some treatment changes.109 The CCB has also found
housing arrangements contained in CTOs to be in accordance with the
overarching principles of the Charter;110 this ensures that CTOs may func-
tion as comprehensive and effective treatment tools. Such an interpreta-
tion has been found, in turn, to be less of an affront to a persons dignity
and to be closer to the purposes of the governing legislation, as it is less
restrictive than admission to a psychiatric facility.111 The underlying as-
sumption holds that care in the community provides a higher degree of
respect for individual liberty and autonomy than care in an institutional
setting.112
This does not preclude a successful Charter or human rights challenge
to the conditions of a specific CTO. An MHT may find that specific terms
discriminate against the patient, or constitute an unreasonable affront to
the patients dignity or Charter rights, when the terms subject to the chal-
lenge can be separated from the CTO without impairing its overall effec-
tiveness.113 Striking down those terms would support the least restrictive
principle that governs most modern mental health legislation, and would
be in accordance with a Charter analysis.
107 Mary Donnelly, Community-Based Care and Compulsion: What Role for Human
Rights? (2008) 15 Journal of Law and Medicine 782.
108 Re K (6 February 2008), 2008 CanLII 10213, 2008 CarswellOnt 1339 (WL Can) (Ont
Consent and Capacity Board).
109 Re JP (31 August 2010), 2010 CanLII 55559, 2010 CarswellOnt 7302 (WL Can) (Ont
Consent and Capacity Board).
110 Re MBG (7 July 2003), 2003 CanLII 14360, 2003 CarswellOnt 8190 (WL Can) (Ont
Consent and Capacity Board).
111 Ibid.
112 Donnelly, supra note 107.
113 Ibid (discussing potential challenges to arbitrary CTO terms in the context of the Euro-
pean human rights system).
JURISDICTION OF MENTAL HEALTH TRIBUNALS 293
B. Lack of Community Accommodation Leading to Involuntary Admission
Evidence before MHTs sometimes discloses that an involuntary pa-
tient would be able to manage in the community if appropriate accommo-
dation and treatment were available. In other words, the patient would
not need to be committed but for the lack of resources in the communi-
ty;114 committing such a patient conflicts with the least restrictive princi-
ple underlying modern mental health legislation. For example, there has
been some judicial commentary supporting the Ontario MHTs discretion
to decide whether to confirm civil committal, even when the criteria for
involuntary admission are met,115 though the scope and application of this
discretion remain unclear.116 Therefore, an MHT could be faced with a re-
114 See e.g. Re BF (4 March 2008), 2008 CanLII 14522, 2008 CarswellOnt 1870 (WL Can)
(Ont Consent and Capacity Board) (confirming a patients involuntary admission on the
basis of the limited housing options after release from the psychiatric facility, which
would not provide the stability … required to minimize the impact of [the patients]
mental disorder, or to increase the possibility of compliance with medication in the
community); R (H) v Secretary of State for the Home Department, [2003] UKHL 59 at
para 28, [2004] 2 AC 253 (confirming the committal of a patient who had been granted a
conditional discharge but for whom the community agencies did not make the ar-
rangements necessary to meet the conditions of discharge).
115 Capano v Centre for Addiction & Mental Health, 2010 ONSC 1687 at para 37, 4 Admin
LR (5th) 147. For example, in Re SS (22 July 2003), 2003 CanLII 17067, 2003 Car-
swellOnt 8380 (WL Can) (Ont Consent and Capacity Board), an individual had been in-
voluntary detained for three years after a judge placed a conditional sentence on him,
requiring that he live at the facility. At the end of the two-year sentence, he was certi-
fied and remained certified under the OMHA 1990, supra note 22. His attending physi-
cian was unsuccessful in finding an appropriate group home for him. The CCB consid-
ered exercising its discretion not to confirm the certificate based on the absence of any
attempt to relocate [the patient] to a less restrictive setting. Through perhaps puzzling
reasoning, the panel held that it was entitled to consider the lack of community re-
sources as justification for continuing the patients involuntary admission; however, it
held that it was also entitled to consider the lack of discharge planning as justification
for refusing to continue the patients involuntary detention, and it refused to exercise its
discretion.
Likewise, in Re FH (12 March 2010), 2010 CanLII 15626, 2010 CarswellOnt 2059
(WL Can) (Ont Consent and Capacity Board), the CCB indicated that a factor to be con-
sidered in deciding whether to execute discretion … is the likelihood and degree of po-
tential seriousness of the harm if the patient is discharged. The CCB therefore refused
to use its discretion in this case, owing to the likelihood of serious harm should [the pa-
tient] be prematurely discharged.
116 The Ontario MHTs discretion has been criticized in Re JW (18 March 2005), 2005 Can-
LII 7114, 2005 CarswellOnt 8706 (WL Can) (Ont Consent and Capacity Board):
Given the finding, without which the supposed discretion cannot arise,
namely, that all of the prerequisites of the Act are met at the time of the
hearing, what legitimate purposes might the release of such a patient serve?
Is that release meant to punish those responsible for the triggering circum-
stance? Is it to compensate the patient? Is it to protect him or her? Clearly, to
release a patient who is certifiable is not an appropriate method of reproof for
294 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
quest to refuse to confirm the civil committal of a patient in the case
where committal is the result of an allocation of services and facilities
that discriminates against the mentally ill under human rights legislation
or the Charter. It is, however, unlikely that an MHT would exercise its
discretion to release an involuntary patient who is likely to cause harm to
himself or another person.117
C. Transferring Patients
Conway recognized that review boards were able to influence clinical
decision making when ordering a patients transfer to a health facility,
pursuant to their power to impose terms and conditions. Until recently,
MHTs had no statutory power to order transfers of patients, at least not
without the consent of the receiving facility.118 The recent amendments to
Ontarios Mental Health Act, which allow a facility or patient to apply to
the CCB for an order transferring the patient to another psychiatric facili-
ty, revisit the scope of authority given to MHTs in terms of clinical deci-
sion making.119 In effect, Ontarios MHT has been given the authority to
the collateral conduct of others of which a panel happens to disapprove. Sure-
ly, to turn out into the street, contrary to his or her best interests, a person
who is sick and/or dangerous enough to warrant certification can hardly be
viewed as compensatory. If it is suggested that the discretion exists as a
means to protect the patient from abusive conduct, it may be pointed out
that, depending on its nature and severity, such abuse would appear to fall
within the domain of criminal law, or of human rights law, or of civil liability.
As such, it is the business not of the Board, but of the police and/or of the pa-
tient and his or her counsel.
…
For these reasons, we are of the view that the apparent discretion pro-
vided by the use of the word may in s.41.(2) is hollow, and that we have no
true discretion to decide to not confirm.
117 Re EP (26 November 2010), 2010 CanLII 68913, 2010 Carswell Ont 9620 (WL Can)
(Ont Consent and Capacity Board) (declining to exercise discretion to release a patient
who had once been detained against her will for several days without legal justifica-
tion).
118 See e.g. J v V, [1995] ACTSC 66 (available on AustLII) (holding that the Mental Health
Tribunal of the Australian Capital Territory must give prior approval to initiate a peri-
od of compulsory treatment lasting up to six months pursuant to the Mental Health
(Treatment and Care) Act 1994 (ACT), ss 28, 36). Such orders are not location-
specific and may involve treatment in either a hospital or community setting. See
also ibid, ss 32(2), 32(3) (whereby the supervising psychiatrist decides a persons
place of residence once an involuntary treatment order has been made by the tribu-
nal).
119 OMHA 1990, supra note 22, s 39.2(2), as amended by Creating the Foundation for Jobs
and Growth Act, 2010, SO 2010, c 1, Schedule 17, s 4 (providing that a transfer applica-
tion may be made when a fourth certificate of renewal is completed with respect to an
JURISDICTION OF MENTAL HEALTH TRIBUNALS 295
decide the place and level of security under which some patients will be
receiving treatment. This is a significant decision-making power, which
breaks with the traditional role of MHTs as enforcers of negative rights,
in that it not only deals with the fundamental liberty right of the patient
but is inextricably linked to his or her prognosis and reintegration into so-
ciety. In a similar vein to review boards, which have been found to have
the authority to include express terms relating to interim custody and dis-
cretionary privileges pending transfer of a patient detained in a psychiat-
ric facility,120 the power to transfer requires MHTs to share responsibility
for co-managing hospital resources when called on to adjudicate a transfer
request.
Theoretically, patients in a high-security health facility could make a
human rights claim because they cannot be transferred to lower-security
environments because of the underfunding of the latter and because fo-
rensic patients are generally given priority, in effect precluding the invol-
untary patients from access to the cascade system that is otherwise
available. Furthermore, the right to access the patients family and to so-
cialize in general, and the availability (or lack thereof) of cultural, reli-
gious, or language services are arguably factors that the CCB could con-
sider in making a transfer application.121
The power to transfer appears to be a promising tool to further the
right to adequate health care of mentally ill patients appearing before
MHTs. Its potential, however, does not derive from constitutional or qua-
si-constitutional sources of law but from the lawmakers decision to give
such jurisdiction to the tribunal in question.
It is uncertain whether similar transfer provisions will be replicated in
other jurisdictions, and if so, what the extent of the discretion given to the
tribunal to impose any terms and conditions on the transfer will be. How-
ever, it is clear that the power to order a transfer may open the door to
seeking remedies addressing a patients right to adequate mental health
care.
involuntary patient and after the completion of every subsequent fourth certificate of
renewal). But see Mental Health Services Act, SS 1984-85-86, c M-13.1, s 34(2), as
amended by The Mental Health Services Amendment Act, 1996, SS 1996, c 17, s 9, al-
lowing a patient in Saskatchewan to reviewbut not requestan order for the transfer
of an involuntary patient from an in-patient facility to any other in-patient facility.
120 See Penetanguishene, supra note 89. In the context of delays in transferring forensic pa-
tients following Ontario review board dispositions, see Orru v Penetanguishene Mental
Health Centre (2004), 126 CRR (2d) 182, 2004 CanLII 48886 (Ont Sup Ct).
121 Ibid.
296 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Conclusion
The recent SCC jurisprudence appears to judicialize the role of ad-
ministrative tribunals by recognizing their authority to apply constitu-
tional and quasi-constitutional law. However, MHTs are creatures of
statute, and the remedies they can award are limited to their jurisdic-
tion.122 Martin, Tranchemontagne, and Conway underscore the jurisdic-
tional limitations of administrative tribunals. In fact, these cases support
a cautious approach toward expanding the jurisdiction of tribunals.123
The jurisprudence of the SCC also highlights the inherent institution-
al limitations of adjudicative agencies and the unreasonable expectations
placed on them. Adjudicative agencies are institutionally ill-equipped to
deal with constitutional or quasi-constitutional legislation. The expecta-
tion that unrepresented parties before MHTs may raise human rights or
Charter claims is unrealistic, as is the prospect that tribunal members
may do so. This creates legal uncertainties regarding the right of parties
to raise such arguments at an appellate level. There is also concern that
allowing tribunals to raise such issues of their own accord may affect the
fairness of the proceedings.124 To the lack of institutional resources and
expertise one must add the risk of losing sight of the purpose for which
both the tribunal and the applicable legislation were created. Providing a
speedy and accessible forum for adjudication, one of the foundations upon
which most modern mental health legislation and MHTs are established,
is impacted by long, protracted, and complex proceedings. Paradoxically,
this runs contrary to international human rights standards requiring a
speedy review of the decision to restrict the rights of a mentally ill per-
son,125 as was made evident by the dissent in Tranchemontagne:
122 A potential exception can be found in the Australian Capital Territorys Human Rights
Act 2004 (ACT), ss 18(7), 23, which expressly includes, among the recognized human
rights, a right to compensation for unlawful arrest or detention and for wrongful convic-
tion.
123 See British Columbia Maritime Employers Assn and ILWU, 150 CLRBR (2d) 224 at
paras 53-59, [2007] CIRB 397; Jacobs Catalytic Ltd v International Brotherhood of Elec-
trical Workers, Local 353, 2009 ONCA 749 at para 18, 98 OR (3d) 677; Clement v Varga
(16 May 2006), [2006] ORHTD 39 at paras 22-23; Tenants v MF Arnsby Property Man-
agement Ltd (5 June 2006), [2006] ORHTD 60 at para 40; Haig v Ontario (Director,
Ministry of the Environment) (1 October 2008), 2008 CarswellOnt 7655 (WL Can) at pa-
ra 62 (Ont Environmental Review Tribunal).
124 Anand & Edelstein, supra note 67.
125 See UN Mental Health Principles, supra note 76 (providing that an initial review of in-
voluntary admission is to take place as soon as possible at principle 17(2)). See also
Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Novem-
ber 1950, 213 UNTS 221 at 227, art 5(4), Eur TS 5 (providing that persons deprived of
their liberty are entitled to speedy review of the decision to detain them).
JURISDICTION OF MENTAL HEALTH TRIBUNALS 297
Imposing Code compliance hearings on the SBT will similarly
and inevitably impact its ability to assist the disabled community it
was established to benefit in a timely way. It will be difficult to ex-
plain to the thousands of disabled individuals waiting for their ap-
peals to be heardmany without any interim supportthat there is
any public benefit in the SBT hearing a complex, lengthy, and inevi-
tably delaying jurisprudential issue with no precedential value. That
is the real access issue in this case.126
Furthering positive rights or entitlements via the use of the Charter or
human rights legislation before MHTs also raises concerns that adminis-
trative tribunals may become de facto resource-allocation agencies, a role
they were not originally intended to fulfill. It can also result in privileging
the claims for entitlement of certain parties over similar or stronger
claims of other individuals:
For a court to order improved conditions or set specified standards
according to which an institution ought to be run, or for a court to
demand that a state authority establish certain provisions in order
not to infringe the constitutional rights of its citizens for treatment
in least restrictive settings, effectively constitutes a legal arroga-
tion of discretion in choices as to allocation of funds amongst com-
peting priorities.127
These issues highlight the limitations of rights- or entitlement-based
strategies in providing authoritative solutions. The language of rights
lends itself to different and contradictory claims. The prioritization of
each claim is therefore a source of continuing debate, one for which vari-
ous societies have given dissimilar responses at different points in time.
Nevertheless, MHTs are still the most common legal forum available
for the mentally ill to raise constitutional and quasi-constitutional chal-
lenges that may result in advancing a right to adequate health care. Fur-
thering access to justice in this context creates a dilemma that has no
easy resolution. In the context of review boards, the SCC has attempted to
reach a compromise by acknowledging their supervisory role and power to
impose conditions regarding supervision. Barring statutory amendments,
this option is not available for provincial MHTs, which are only left with
the power to interpret legislation in accordance with Charter values and
to make nonbinding recommendations dealing with treatment and other
126 Supra note 49 at para 91.
127 Rose, supra note 77 at 213. See also Terry Carney & David Tait, The Adult Guardi-
anship Experiment: Tribunals and Popular Justice (Sydney: The Federation Press,
1997) at 146, 178-79; David Tait, Terry Carney & Kirsten Deane, A Ticket to Ser-
vices or a Transfer of Rights?: Young People and Guardianship (Hobart: National
Clearinghouse for Youth Studies, 1995); Terry Carney & David Tait, Caught Be-
tween Two Systems? Guardianship and Young People with a Disability (1997) 20:1
Intl J L & Psychiatry 141 at 153, 158.
298 (2011) 57:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
matters, such as hospital policies and CTOs. The latter functions corre-
spond to a model that incorporates both adjudicative functions and the
powers of a commission of inquiry.128 It is a model that can influence the
provision of adequate health care; the model should be carefully delineat-
ed with due regard to the rights and responsibilities of health practition-
ers, to avoid the risk of administrative agencies becoming de facto execu-
tive agencies or losing their authority, or both. The power to order the
transfer of patients given to Ontarios MHT may also become a further
tool to advance claims to adequate health care.
It remains to be seen whether the practices and powers described above
mark a new trend toward a greater and different role for MHTs, or
whether these will remain isolated examples arising from the need to
deal with particular regional concerns or conditions. What is certain is
that legislative action continues to be essential for a comprehensive re-
examination of the role and jurisdiction of MHTs and any reprioritiza-
tion of the rights of the mentally ill.
128 Most Canadian MHTs already give their own members similar powers to the ones given
to commissioners appointed under provincial public inquiries legislation.
