In 2000, the Ontario legislature introduced a series of amendments (Brian's Law) to the Mental Health Act and the Health Care Consent Act, broadening the criteria for civil committal and creating a community treatment order (“CTO”) regime in Ontario. Motivated by the murder of media personality Brian Smith by a man suffering from untreated schizophrenia, the CTO regime is a form of compulsory psychiatric treatment imposed on individuals fulfilling prescribed criteria by their doctors. Patients, usually suffering from schizophrenia or related disorders, are ordered to comply with their treatment plan and face the possibility of involuntary hospitalization if they fail to agree to or to comply with the order.
CTO regimes and other forms of out-patient committal have attracted considerable legislative attention in recent decades. As mental health systems shift away from large-scale institutionalization, community treatment is seen by some as a favorable middle ground that provides people with the assistance they require without subjecting individuals to onerous involuntary detention. Detractors, however, point out that attaching the looming threat of committal to treatment plans risks broadening the scope of forced treatment. The delicate balance that needs to be struck between individual autonomy and enthusiasm for treatment in this type of regime invites constitutional scrutiny.
The application in this case, brought on behalf of Karlene Thompson by the Empowerment Council, challenged the CTO regime as an unjustifiable infringement of various Charter rights, primarily under section 7. The application judge found the scheme constitutional.
The central issues before the Ontario Court of Appeal included whether the applications judge misapplied the principles of fundamental justice, failed to properly consider the purpose of the legislation, or erred in his analysis of ss. 9, 10, 12 and 15 of the Charter.
The Principles of Fundamental Justice
The Court of Appeal affirmed the trial judge's finding that the impugned provisions were not arbitrary, overbroad nor grossly disproportionate. In coming to this conclusion, the Court placed a great deal of emphasis on the fact that the CTO scheme is only applied following a highly specific assessment of a patient's condition and treatment needs, a factor tied to the public health and public safety goals of the legislation. The personalized assessment process was found to minimize any risk that the application of CTOs would be arbitrary, overly broad or grossly disproportionate.
The Court also endorsed the trial judge's refusal to delve too deep into the policy rationale of the scheme in light of contradictory evidence. The Court held that the available evidence reasonably supported legislative action and did not support a finding of arbitrariness, overbreadth or gross disproportionality.
The Legislative Purpose
The appellants submitted that the purpose of Brian's Law was to protect public safety, and as such could not be constitutionally valid since there was no correlation between mental illness and violence. The Court of Appeal rejected this argument on the basis that the public safety purpose cannot be viewed in isolation from the purpose to improve mental health treatment.
The CCLA argued that improved treatment could not be a valid legislative objective because the treatment offered in the form of a CTO is coerced, in the sense that if a patient does not consent they face involuntary committal. The Court found this argument insupportable, distinguishing the effects of forced treatment from the purpose of improved treatment.
Further, they noted that coerced treatment can be a valid legislative objective in some circumstances and that since individuals subject to the CTO will meet the criteria for involuntary committal, the less restrictive CTO scheme does not amount to improperly coerced consent.
Other Sections of the Charter
The appellants' arguments related to ss. 9, 10 and 12 replicated their section 7 arguments and were quickly dismissed by the Court of Appeal.
The Court of Appeal also agreed with the application judge that Brian's Law was not discriminatory against those with mental disabilities for the purpose of s. 15(1). The detailed personal assessment provided for in the CTO scheme was held to be the “antithesis” of discrimination in the sense that nothing about the orders are based on presumed characteristics and the patient's views are given priority in the assessment. The fact that this assessment process itself may be informed by discrimination in its application was rejected for a lack of factual basis.
Thompson provides a strong endorsement of the constitutionality of CTO schemes. The fact that orders are issued further to an individualized assessment, and purport to serve not only the interests of the broader community but also of the patient, appears to have insulated the legislation from constitutional violation. However, CTOs continue to generate controversy across Canada as provincial health systems grapple with whether and how to approach their implementation. Amid a rapidly growing number of CTOs in effect in Ontario, some experts warn against potential abuses. This case may move the discussion around CTOs from the constitutional rights of patients to the design and implementation of the scheme.