Mind Protection: Data Privacy Legislation in the Age of Brain-Machine Interfaces

Contributed by Dr. Anastasia Greenberg

Brain-machine interfaces (BMIs) are a class of devices that allow for direct communication between a human brain and a device such as a computer, a prosthetic limb, or a robot. This technology works by having the user wear an electroencephalography (EEG) cap that extracts brain activity, in the form of brain waves. These waves are then processed and interpreted by advanced software to “decode” the brain’s intended actions. These intended actions are translated into a command sent either to a computer or a mechanical device – the gadget options are seemingly infinite. With the growth of big data analytics and artificial intelligence (read an MJLH article on this issue), the proliferation of BMIs pose a unique legal and ethical risk for personal data privacy and security given the highly intimate nature of the information that BMIs gather.

Recent Advances in BMIs

The major limiting factor of the widespread application of BMIs is the ability to accurately interpret a person’s thoughts from their recorded brain activity. Major headway has been made in the last decade. A highly publicized example includes a quadriplegic patient with an implanted brain chip (instead of a non-invasive EEG cap) who was able to check emails, turn lights on and off, and play video games using his thoughts alone. A newer version of this chip, developed by a company called Braingate, is currently undergoing clinical trials. Similarly, such developments have potentially life-changing heath care implications for locked-in syndrome patients who have lost ability to communicate due to muscle paralysis. BMIs allow locked-in patients to communicate using their thoughts.

BMI1 Brain-machine interfaces allow for control of computers and mechanical objects using thoughts || (Source: Flickr // Ars Electronica )

The applications of BMIs extend beyond health care into the consumer context. A company called Emotiv Lifesciences created a sophisticated driving simulator that allows for thought-controlled navigation through a virtual course. Another company called Muse offers an enhanced meditation experience by providing feedback to allow users to modulate their own brain waves.

BMI technology can also be used for direct brain-to-brain communication. In 2013, researcher Dr. Rajesh Rao sat in his laboratory at the University of Washington wearing an EEG cap and faced a computer screen displaying a simple video game. The object of the game was to fire a canon at a target by pressing a key on a keyboard at the right moment. Rao did not touch the keyboard and instead used his thoughts to imagine moving his right hand to press the key. On the other end of the university campus, Dr. Andrea Stocco sat in his own laboratory with a Magnetoencephalography (MEG) stimulation coil (which is used to activate specific areas of the brain) placed over the part of his motor cortex that controls hand movements. Stocco did not have access to the video game display in front of him. Every time that Rao imagined firing the canon, a command would be sent via the internet to trigger the MEG stimulation over Stocco’s head, forcing his finger to press a keyboard key which would then fire the canon at the target on Rao’s computer screen. Therefore, Rao was able to control Stocco’s movements through the web with his thoughts.

Data Privacy in Canada

In the age of big data, personal information in the form of search engine entries, online shopping activity, and website visits, when aggregated, can reveal highly accurate details about a person’s life. This reality has raised public concerns over data privacy in Canada. As BMIs increasingly enter the market and join the “internet of things”, organizations will for the first time, have access to the most personal information yet – information obtained directly from the brain.

In Canada, the protection of personal data, such as brain data, can be captured by a complex web of privacy legislation. Although the Canadian Charter of Rights and Freedoms does not explicitly mention a right to privacy, it is protected to some degree by sections 7 (liberty) and 8 (unreasonable search and seizure). The Privacy Act governs the handling of personal information by the federal government, while the Personal Information and Electronic Documents Act (PIPEDA) is a federal statute that applies to businesses in Canada that collect, use, and disclose personal data for commercial purposes. PIPEDA was enacted in 2000 in attempt to harmonize data privacy standards across the country and to strike a balance between economic benefits stemming from private data use and respect for individual privacy. To add extra complexity, provinces and territories can enact their own data privacy legislation which supersede PIPEDA if the federal government considers the legislation to be “substantially similar” to PIPEDA.

BMI2.jpg Privacy legislation in Canada and abroad aims to protect personal information, such as health-related data || (Source: Flickr // luckey_sun )

PIPEDA has been criticized heavily since coming into force for its feeble enforcement mechanisms. As a result, in 2015, amendments to PIPEDA introduced a requirement to notify the Privacy Commissioner of any data privacy breach creating significant harm to an individual, including bodily harm, reputational harm, and identity theft. Failure to notify can result in fines up to $100,000. Furthermore, the Office of the Privacy Commissioner provided guidance on section 5(3) of PIPEDA which prohibits inappropriate collection, use, and disclosure of personal data. The so called “No-Go Zones” under section 5(3) prohibit activities such as: the processing of data in a way that would lead to unethical or discriminatory treatment, and data uses that are likely to cause significant harm. Significant harm means, “bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on one’s credit record and damage to or loss of property”. These changes can bolster privacy protection of brain data.

What remains intact following the amendments is an insidious provision that leaves the door ajar for government surveillance. Section 7(3)(c.1) is a blanket provision that mandates private entities to disclose personal information at the request of the government in the name of national security and law enforcement. Given the rich information that brain data contains, it is not evident how the government may decide to use such unfettered access in its activities.

Data Privacy Internationally

Europe is known to have the world’s highest data privacy standards. The European Union Data Protection Directive (Directive 95/46) is interpreted in light of the Charter of Fundamental Rights of the European Union, which specifically recognizes personal data protection as a human right. Article 8(1) of the directive provides that member states adopt prohibitions on processing sensitive data including health-related data, which brain data may indeed fall under. However, much like PIPEDA, the desire to balance organizational interests with privacy protection is reflected in exceptions to this prohibition if consent is obtained from the data subject, if the data processing is in the public interest, or for certain medical and health care purposes.

In May of 2018, the General Data Protection Regulation (GDPR) will officially replace Directive 95/46. One of the prominent changes from Directive 95/46 relates to the widening of jurisdiction, as the GDRP will apply to all companies processing the personal data of individuals located within the EU, irrespective of where a company is located. The effect of this change will likely force non-EU companies, including Canadian companies, to comply with the GDPR to allow for cross-border data transfers. The strategy behind this new approach is to ensure that Europe lays the ground rules for the international data privacy game.

As BMIs increasingly enter the market and join the “internet of things”, organizations will for the first time, have access to the most personal information yet – information obtained directly from the brain.

Other major changes that will be introduced with the GDRP are the inclusion of the “right to access”, in which a data subject will be able to request copies of their personal data, and the “right to be forgotten” in which the data subject can request for their personal data to be permanently erased. Just as BMIs are introducing highly intimate data into the mix, the GDRP may offset some of the increased privacy risks by putting more control in the hands of the data subject and by attempting to coerce international privacy standards.

The Future of Privacy

The promise of brain-machine interfaces is hard to overstate. BMIs can already restore lost abilities such as vision, hearing, movement, and communication.  Beyond restoration, BMIs allow for super-human enhancement in the form of control over virtual environments, manipulation of robots, and even transmitting linguistic messages without vocalizing speech. The effective implementation of BMIs speaks directly to the effectiveness of neural decoding: the technology’s ability to “mind read” – albeit currently in crude form. Organizations that create BMIs and control its software will have access to rich brain data. Governments will desire access to that data. The EEG data in question are as unique as one’s fingerprints, providing biomarkers for the prediction of individual intelligence, and predispositions to neurological disorders such as depression, Alzheimer’s disease, and autism. The ongoing development of data privacy legislation in Canada and abroad will shape future control of the mind’s personal bits.


Anastasia Greenberg is a second-year student in the B.C.L/LL.B. program at McGill University’s Faculty of Law and is the Executive Online Editor of the McGill Journal of Law and Health. Anastasia holds a PhD in Neuroscience from the University of Alberta.

Recap of Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates

On February 3rd 2018, the McGill Journal of Law and Health held its 10th annual colloquium entitled Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates. This year’s edition was particularly topical considering Montreal’s growing presence on the international artificial intelligence (AI) scene. A variety of lawyers, physicians, computer scientists, as well as law and medical students attended the event. The event’s program included two expert panel discussions: one meant to give an overview of the development of artificial intelligence technologies, and one meant to provide an idea of the road towards a regulatory framework on artificial intelligence, particularly in the field of the right to health in Canada.

Panel 1: An Overview of the Development of Artificial Intelligence Technologies

Contributed by Catherine Labasi-Sammartino

The first panel was composed of Dr. Jonathan Kanevsky, a final year resident in Plastic and Reconstructive Surgery at McGill who has developed several medical devices to improve therapy for skin cancer and scaring; Christelle Papineau, a PhD candidate in the international thesis program established between Paris University Panthéon-Sorbonne and the University of Montreal who’s research focuses on the interactions between law and artificial intelligence with a comparative perspective between Europe and North America; and Me. Antoine Guilman, a current lawyer at Fasken and member of the national group of Information and privacy protection who holds a PhD in Information Technology law from the University of Montreal and the Paris University Panthéon-Sorbonne.

Image1 Panel 1 speakers, from left to right: Dr. Jonathan Kanevsky, Christelle Papineau, and Me. Antoine Guilman 

Dr. Kanevsky started the panel off with a discussion on the potential of AI in health care, which he demonstrated by sharing examples of AI excelling in pattern recognition tasks, such as tumour detection in human biopsies. To create advancement in health care, it is important to recognize that some skills, such as pattern recognition, are not only human skills. This shift is similar to the one that took place when the recognition that the human mind could not possibly retain all the required information to treat patients put forward the idea that doctors should be using a data base to keep medical records. Dr. Kanevsky provided his audience with several insights about what AI can do in health care. These included classification (i.e., identify cancer types), prediction (i.e., make predictions based on physical appearance), and diagnosis (i.e., detect cancer cells).

Dr. Kanevsky also addressed the ethical challenges raised by the use of AI. Is AI good or bad? All three speakers jumped in to answer this question. Christelle Papineau brought up current studies on an algorithm’s potential (e.g., the Compass and LSI-R algorithm) to determine the appropriate sentence in criminal offence cases to illustrate AI’s potential role on our legal system and its associated risks. She stressed the value of human involvement in legal decision-making and the social responsibility AI innovators had to not delegate an irresponsible part of the cognitive processing required in legal settings to AI. Dr. Kanevsky echoed these concerns and left the audience with a rhetorical question regarding AI’s role in removing a scientist’s thought process.

Me. Guilman brought up issues surrounding the anonymization of personal information, such as doubts regarding its effectiveness and reliability. Furthermore, he explained the current trend of increasing the amount of data collected, without discriminating according to data type, and how it has created a series of challenges for the lawyers and business owners working according to the current Canadian laws on data protection. These laws are widely recognized as being out of touch with recent technological changes and have left the legal community with a variety of wide interpretations.

Overall, the first panel succeeded in bringing the audience to reflect on what AI to the legal and health care fields, while stressing the need for a continued responsible attitude towards its implementation. For all of the speakers, this responsibility translated itself in always having the possibility to include human interaction in when relying on AI decision-making. The importance of sensitising and sharing information with the general population regarding AI’s growing presence, in events such as the MJLH colloquium, were acknowledged as being effective tools to promote the responsible use of AI.

Panel 2: Road Towards a Regulatory Framework for Artificial Intelligence

Contributed by Handi Xu

Nicole Mardis is a Project Officer for the CIHR Institute of Health Services and Policy Research and a PhD Candidate at McGill University with specializations in medical sociology and industrial relations. Mardis began her talk by explaining that artificial intelligence signifies new patterns of human-computer interaction at the programming level that are expected to: expand the scope of activity that can be augmented by technology, accelerate algorithm development, and generate more independent machines. While traditional programming involves step by step problem-solving based on hard coded rules, AI consists of machines learning from data and examples, which puts less burden on programmers to embed all relevant context and meaning in the instructions that they write for computers.

While the productive potential of AI is still not fully understood, comparisons are often made to the Industrial Revolution. It is important to note that the mechanization and centralization of production that occurred during the Industrial Revolution gave rise to major productivity gains, but these gains were distributed in such a fashion that large segments of the population saw their material well-being and quality of life initially decrease.

Image2 Panel 2 speakers, from left to right: Christelle Papineau (moderator), Nicole Mardis, Dr. Frank Rudzicz, and Me. Marie Hirtle 

The Digital Revolution appears to be following a different pattern: information technology has diffused widely and costs have fallen, but productivity gains are hard to locate. Will the AI Revolution change this? What we do know is that more R&D is needed to make AI mainstream, and we should be particularly mindful of what data/examples are used to drive this activity. Health care providers (e.g., hospitals, clinics, and governments) now house very rich sources of population-based clinical and social data that could be used for AI. In partnership with these entities, research funders such as the Canadian Institutes of Health Research are investing in platforms and services to make this data available to university and hospital-based researchers. Yet, because AI cuts across many different fields of research and is driven in large part by industry, governments and other research funders will have to think more strategically about how public data assets are used to shape the trajectory of AI, as well as how they structure partnerships to maximize social and economic benefits for citizens.

Dr. Frank Rudzicz is a scientist at the Toronto Rehabilitation Institute (University Health Network), an assistant professor of Computer Science at the University of Toronto, co-founder and President of WinterLight Labs Inc., faculty member at the Vector Institute, and President of the international joint ACL/ISCA special interest group on Speech and Language Processing for Assistive Technologies. Dr. Rudzicz talked about the importance of using AI and software tools for medical diagnosis in the health care system in an ethical manner.

Current trends in AI research involve deep neural networks, big (interlinked) data, recurrent neural networks for temporal/dynamic data, reinforcement learning, active learning, telehealth and remote monitoring as well as causal/explainable models. Reinforcement learning consists of systems learning ‘online’ by taking imperfect observations, inferring the unseen state, then taking an action. This type of learning necessitates some exploration, where rewards and costs are usually supplied by humans. Active learning, which involves doctors using AI to determine a person’s disease, is efficient, but also risks putting doctors in a feedback loop and creating a blind reliance on AI. Neural networks learn to associate input features with output categories, but there is no abstract logic or interpretable reasoning to those associations; correlation is not causation, meaning that one usually cannot tell why or how a neural network made a decision, which is problematic when it comes to assigning responsibility.

Humans are notoriously bad with information: patients misread or miscommunicate their symptoms while doctors make diagnostic errors. A study by Bennett and Hauser (2013), which compared patient outcomes between doctors and sequential decision-making algorithms, concluded that AI technology was not only less costly, but also led to 50% better outcomes. Clinical doctors prescribe medication after informing patients of its benefits and side-effects. However, the AI doctor prescribes medication, partially, as an experiment, which allows it to directly and continuously learn from the outcomes, making it difficult to determine which set of ethics apply. Current regulatory frameworks will face ethical challenges, and will certainty need to adapt to the rise of AI, but most importantly, they need to continue to respect individual rights.

Marie Hirtle is a lawyer with a background in ethics and specialization in health issues ranging from community-based health and social services, to tertiary and quaternary care, biomedical research, and public health. She is currently Manager of the Centre for Applied Ethics at the McGill University Health Centre (MUHC), where she leads a team of professional ethicists who provide clinical, organizational, and research ethics services to the MUHC community. Using the example of the artificial pancreas, Face2Gene and Big Data, Me. Hirtle discussed regulatory issues raised by different applications of AI in health care settings. The artificial pancreas uses an insulin pump, a continuous glucose sensor, and a control algorithm to help patients with diabetes, but the dosing algorithm is self-learning, which is difficult to regulate. Face2Gene is an application which collects personal health information, such as photographs of faces of babies, to facilitate the detection of facial dysmorphic features and recognizable patterns of human malformations, while referencing comprehensive and up-to-date genetic information. It uses advanced technologies including computer vision, deep learning, and other AI algorithms to analyze patient symptoms, features, and genomic data. Face2Gene allows labs to interpret genetic information more accurately, thus helping clinicians diagnose rare diseases earlier on.

Me. Hirtle also discussed the legal issues associated with Big Data. Currently, Big Data is being collected, stored, used and disclosed, either when individuals consent or when the law explicitly allows it. Although obtaining individual consent is desirable, it can be impracticable. Individuals often click on “I agree” without reading the terms and conditions, therefore not knowing what they are consenting to. Furthermore, even though the law allows the use of non-identifiable data, the re-identification of these data is technically possible, which could potentially infringe on the right to privacy.

Overall, the second panel of the event drew the audience’s attention to the uncertain future of AI and the need to develop appropriate legal and regulatory frameworks to ensure that the benefits of AI can be harnessed while tempering the risks.

Criminal Liability & Mental Illness: A Clash of Minds, Media, and Parliament

Contributed by Loïc Welch

“In every society there are those who commit criminal acts because of mental illness. The criminal law must find a way to deal with these people fairly, while protecting the public against further harms. The task is not an easy one.” [Justice McLachlin in Winko v B.C.]

Several high-profile Canadian cases (e.g., Allan Schoenborn, Guy Turcotte, Vincent Li) brought much media coverage, societal attention, and community backlash to the Criminal Code’s section 16 liability regime—Not Criminally Responsible on account of Mental Disorder (NCR). The public outcry stemmed from a lack of understanding of mental health, criminal law procedures, and the NCR regime itself, culminating in an amendment in 2014. For an appreciation of these changes, it is important to gain a bit of historical perspective as to the development of the current regime.

The History of the NCR Defence

The NCR defence was introduced following the 1992 amendments to the Criminal Code and replaced the Not Guilty by Reasons of Insanity defence (NGRI), which absolved criminal responsibility. The accused would come under the authority of the State and could be indefinitely detained until otherwise decided by the lieutenant governor. In addition, the NGRI defence could be raised by either party and effectively could be used as a means of involuntary and indefinite imprisonment with no mandatory review imposed on the State. The NGRI regime put the safety of the public above the interests of the accused and offered no procedural protection for the mentally ill. Offenders could not appeal the decision and were left in psychiatric institutional detention to the deference of the lieutenant governor – the only official endowed with power to allow their reintegration into society.

Window Under the old NGRI regime, a person with mental health issues could be detained involuntarily for an indefinite amount of time. || (Source: Flickr // Paul Hudson )

In R v Swain (1991), the Supreme Court of Canada (SCC) found the NGRI regime unconstitutional and pushed Parliament to enact new legislation for mentally ill offenders. Specifically, Chief Justice Lamer writing for the SCC majority, took issue with the NGRI regime’s automatic detention being subjected to the lieutenant governor’s beneficence and enabling potential indefinite detention. The SCC ruled that this violated section 7 (right to life, liberty, and security of the person) and section 9 (right not to be arbitrarily detained) of the Canadian Charter of Rights and Freedoms. The SCC struck down the regime, read down its current application, and asked Parliament to write new legislation within six months. And so, in 1992, Bill C-30 amended the Criminal Code, introducing the Review Board, a provincial/territorial tribunal with authority over mentally ill offenders, which thereafter introduced the new NCR regime via section 16.

Importantly, the new NCR regime introduced new procedural safeguards, stipulating that only the defence may raise issues of mental deficiency (there are some exceptions that are beyond the scope of this article), thus respecting the choice of the accused who may not wish to raise the NCR defence for a variety of reasons. Once raised, mental incapacity for the offence must be proved on a balance of probabilities (i.e., that is it more probable than not that the accused was suffering from a mental disorder at the time of the offence). When an accused is found to not have been in the “right” state of mind to appreciate the nature and quality of their acts, or could not form the requisite intent (i.e., mens rea or guilty mind), due to a “disease of the mind”, the accused will be found NCR. This ruling is not synonymous with an acquittal as the individual is deemed to have committed the offence – actus reus – but was lacking the mens rea component necessary for a guilty verdict.

2013-05-19 - 09.15.00 (Public) The Supreme Court of Canada found the NGRI regime unconstitutional. || (Source: Flickr // Robert Lindsell )

The Role of the Review Boards

Once an accused is found NCR, they fall under the authority of the province (or territory) and will receive treatment until such a time as they no longer pose a threat to society. The ultimate goal is to reintegrate the individual into society, while weighing the safety of the public against the rights of the accused. The provincial authority is embodied by the Review Board whose purpose is to review and modify dispositions to NCR offenders. Review Boards are administrative courts specialized in mental health and criminal law which require the presence of at least one psychiatrist and/or a physician with a different specialization, in addition to a mental health practitioner. The Review Board must set dispositions for the accused on a yearly basis, taking into account public safety, the mental condition of the accused, and the goal of societal reintegration. In Winko v BC, the accused posed a section 15 (equality under the law without discrimination) Charter challenge of section 672.54 of the Criminal Code, claiming that it placed an unfair burden on the accused to disprove dangerousness as failing to do so could lead to indefinite detention – reminiscent of the NGRI’s lieutenant governor’s discretion. The SCC rejected this argument but specified that the Review Board must order the least onerous and restrictive disposition available, unless the accused poses a significant threat to the public. Ultimately, following Winko the SCC stipulated that “[if] the accused is not a significant threat to the safety of the public, by order, direct that the accused be discharged absolutely.”

Shift in NCR Policy

In 2005, however, a shift in policy (Bill C-10) began affecting the NCR regime, where victims’ rights were bolstered at the expense of offenders’ liberty. For instance, Review Boards now had to inquire whether the victim knew about their right to submit an impact statement and could potentially adjourn the hearing if this right had been infringed by not informing them of their right to submit said statement. Importantly, the Review Board could now extend hearings by up to two years for offenders charged with a serious personal injury offence in detention and who were not considered likely to show behavioural improvement. This policy trend found public support following a series of brutal offences (often involving the killing of children) and wide-spread media coverage of the perpetrators’ NCR proceedings. The visceral reaction is understandable given the brutal and shocking nature of the index offences being publicized, however, it is important to consider that these cases are of extremely rare occurrence: approximately 1 in 1000 cases are found NCR and 10% of these are for violent offences.

In response to increased public fear, parliament adopted a tough-on-crime approach such as 2014’s Bill C-14’s introduction of a high-risk accused designation for persons with mental illness who have committed a serious personal injury offence and representing an increased likelihood of future violence. Furthermore, at Review Board hearings, the status of high-risk prevents the accused from obtaining any type of non-medical related leave from the hospital or detention centre. The new legislation increases the permissible interval between review hearings to a maximum of 36 months rather than the usual annual review given for other NCR individuals. Finally, once the Review Board is satisfied that the accused no longer poses a substantial risk, they must refer the case to the Superior Court for review, which is the only court with the power to revoke the high-risk status.

Three years since its introduction, no court has yet given an NCR offender the high-risk status. Most notably, the case of Mr. Schoenborn, who was found NCR in 2010 for the killing of his three children, has set a precedent in the applicability of the new designation. In 2015, the Crown petitioned the Supreme Court of British Columbia to have Mr. Schoenborn designated as a high-risk accused. The Court avoided ruling on this new piece of legislation by claiming that it did not operate retrospectively. However, in 2017, the Crown once again applied to have Mr. Schoenborn found high-risk, and this time, the Court ruled that the dangerousness of the accused must be assessed at the “present” time. Therefore, even if “high-risk” was introduced in 2014, the statute was not applied retrospectively.

In 2005, however, a shift in policy began affecting the NCR regime, where victims’ rights were bolstered at the expense of offenders’ liberty.

There is little doubt, however, that eventually an NCR offender will be labelled high-risk and this is likely to bring forth many of the same Charter challenges as the initial NGRI regime (i.e., s.7, s.9, s.15). In addition, it is fair to assume that an increasing “high-risk” designated population would strain current facilities and associated resources due to their long-term mandatory detention. These changes appear to stem from a change in the past fifty years that witnessed a shift from institutional care (such as psychiatric wards) toward community-based intervention in mental health. However, lack of community resources, and increasingly complex clinical and psycho-social profiles resulted in many individuals in need of institutional care coming instead in contact with the criminal justice system.


Loïc Welch is an Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute on Violence, Abuse, and Trauma in San Diego, California.

Canadian Developments in Alternative Sentencing: Mental Health Courts (Part 2)

Contributed by Souhila Baba

Part two of this two-parts series on the theme of psychology showcases alternative sentencing measures regarding mental health courts in Canada (read part 1 on young adult courts here).

In June 2009, Donald Kushniruk was arrested after taking out a knife in a public park in Alberta. He chose to self-represent at trial, and although a lawyer was appointed to consult with him, neither him nor the lawyer ever applied for bail. He had been diagnosed with bipolar disorder, and possibly suffered from schizophrenia. Due to recurrent delays, Kushniruk spent over two and a half years in jail awaiting trial for an offence for which he would ultimately be sentenced to seven days. A few months after his release, Kushniruk was arrested again after an argument with his parole officer. Two weeks into his incarceration, he committed suicide. Although the problem of over-incarceration of individuals with mental illnesses has led to the implementation of mental health courts across Canada, our conceptions of individual capacity and autonomy suggest that there may be some theoretical and practical barriers to their success . In exploring this sentencing alternative, we will first look at the functioning of these courts across Canada and then zoom-in on Québec as a case study.

The Mental Health Court

Across Canada, mental health courts share similar overarching goals: increasing the well-being of those involved, decreasing recidivism, improving access to services, and enhancing community safety. However, there are variants of the mental health court across provinces: Old City Hall Court in Toronto is a fully independent court, working full-time in parallel to other courts. While in Montreal, the court is integrated into the criminal division of the Municipal court, a program termed PAJ-SM (Programme d’Accompagnement Justice-Santé Mentale).

ForkRoad Mental Health Courts provide an alternative path to traditional criminal trial or guilty plea. || (Source: Flickr // Miwok )

Actors Involved in Mental Health Courts

In general, the mental health court team consists of crown attorneys, judges, defence lawyers, health care providers (i.e., general practitioners and psychiatrists), and justice system actors (i.e., police officers, parole officers, and criminologists). Assistant crown attorneys are most likely to be involved in the creation process of the courts (in Ontario, in 68% of cases), while judges and mental health workers often aide in the process (in Ontario, in 37% of cases).

Diversion Programs

A diversion program is an alternative to traditional criminal trial or guilty plea. A diversion plan, devised by health workers, may implement a variety of conditions based on available resources, including consulting a medical practitioner, complying with medication requirements, refraining from alcohol or any illicit drugs, and attending information or training sessions. Most of the time, these are soft conditions, meaning that contravening them does not necessarily lead to reprimand (although there is the possibility of being removed from the court program).

In Quebec, there are two types of diversion programs offered by PAJ-SM: “Suivi”, which is similar to the Ontario program, or “Liaison” which constitutes a softer approach, where the interventions from the court and health workers are minimal. In both programs, non-compliance with one of the conditions leads to the individual being tried more strictly by law, although the judge may consider mental illness in her decision. Most Quebec mental health courts, in addition, offer support services as part of the diversion program such as crisis and emergency response, safe beds, support for housing, and so forth – again, based on available resources.

Eligibility Criteria

Another difference in the functioning of the mental health courts across Canada is the different eligibility criteria for participating in the program. While almost all courts require the individual to agree to participate in the process (i.e., in Montreal and in most of Ontario), Old City Hall Court in Toronto does not require such willingness. Moreover, in Windsor, the court does not have any eligibility or entry requirements, but rather it relies on the judge to decide on eligibility, based on the general evidence obtained.

Despite growing interest in these alternatives, there are only a few mental health courts in Canada, especially compared to the hundreds in the US. Across the board, major concerns for these courts is the lack of dedicated funding and availability of psychiatrists.

Case Study: Québec

Central to mental health courts is the complicated relationship between supporting individuals with mental health issues and respecting autonomy of the individual. In Québec, this is represented in an ongoing debate between various stakeholders: victims rights groups, families of individuals with mental health concerns, hospitals and health practitioners, human rights advocates, prison officials, the police force, other criminal justice actors, governmental institutions, and society at large. From this debate, three interconnected points are most relevant: first, the stigma of differentiating individuals with mental health problems within the court system, second, inconsistent application of laws related to individuals with mental health issues, and third, links between mental health concerns, homelessness, drug addiction, and the criminal justice system.

The Stigma

Issues of labelling, diagnosis, and stigma are prevalent in any mental health question. For mental health courts, these stem from differentiating a “normal” court from a “specialized” court. Certain stakeholders argue that judicializing mental illness in this way further stigmatizes individuals living with mental illness as they are isolated and segregated from the rest of the process. Furthermore, although the program is voluntary, some argue that there is no true choice between the possibility of going to jail and having a matter be processed through this alternative court. Consequently, individuals who do not think they suffer from any mental illness, or do not wish to be diagnosed, may nevertheless choose to take part in the diversion program. This begs the question: are we looking out for what we believe to be in the individual’s best interest, or their freedom and autonomy to make decisions for themselves?

The Law

In Québec, there is a variety of legislation that includes provisions dealing with mental health issues: the Québec and Canadian charters of human rights and freedoms, the Civil Code of Québec (a.27-31), the Quebec Code of Civil Procedure (a.123; a.391-397), the Act Respecting Health Services and Social Services and, the most controversial: the Act Respecting the Protection of Persons whose Mental State Presents a Danger to Themselves or to Others (la loi P-38). Briefly, P-38 aims to provide a structure for various stakeholders in the confinement of individuals whose mental health issues may be dangerous to themselves or others.

HospitalWard La loi P-38 allows for involuntary confinement of individuals with mental health issues || (Source: Flickr // Vancouver Coastal Health )

The controversy over this law is clear: while the Charters protect the right to freedom, P-38 allows for involuntary confinement, irrespective of criminal behaviour. The legal framework in Québec can lead to some inconsistent results when dealing with individuals with mental health issues. Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set-free.

The Social Context

The vast majority of individuals living with mental illness do not encounter the criminal justice system in their lifetime.  However, the over-incarceration of individuals with mental illnesses reminds us that some still do. For many stakeholders, this is not due to a question of criminality, but rather to lack of access to the services needed, be it treatment, social support, financial resources, housing, and/or others. Moreover, most mental illnesses can occur comorbidly with other mental health issues (e.g., drug or substance abuse, depression, eating disorders, etc.), which may strain individuals further, and lead to criminality. Indeed, a study by Jaimes and collogues supports that most crimes committed by individuals with a mental illness are minor crimes, usually related to homelessness, low-income status, and other social circumstances.

Under P-38, without committing any crime, a person could be confined within a hospital or health care institution. Conversely, within the framework of the mental health court, after committing a crime, a person could be set free.

We arrive then at a circular issue: lack of resources compounded with mental health issues may lead to criminality, which is dealt with through mental health courts, which in turn lack sufficient resources to support individuals. Mental health courts come as a second thought, a reactive measure, while there should be preventive measures in place.

This two-part series on alternative sentencing is aimed at understanding the various intricacies of criminal justice and health law, and the need for creativity and innovation with regard to issues disproportionally affecting certain groups in society. This is in the hope that our deeper understanding of human development, behaviour, and mental health will help to shape our legal frameworks.

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc in Psychology from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections. Souhila is currently interning with the McGill Research Group on Health and Law at the CIUSSS du Centre-Ouest-de-l’Île-de-Montréal under the supervision of Me. Nathalie Lecoq.

Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates

The McGill Journal of Law and Health is pleased to invite you to attend its 10th annual Colloquium: Changing the Face of Health Care through Artificial Intelligence: Emerging Ethical and Legal Debates. The aim of this bilingual and student-based initiative is to foster interdisciplinary dialogue on issues that lie at the intersection of health and law. It is our hope that such dialogue will have a positive influence on health and social policy-making in Canada.

La discussion sera divisée en deux tables rondes. La première table ronde donnera un aperçu du développement des technologies d’intelligence artificielle et discutera des défis éthiques que posent les nouvelles possibilités de soins de santé. La seconde portera plus particulièrement sur le chemin vers un cadre réglementaire de l’intelligence artificielle dans le domaine du droit de la santé au Canada.

*Un dîner et des collations seront servis*

This year’s event will feature some big names in the artificial intelligence field including: Christelle Papineau, Daniel Weinstock, Frank Rudzicz, Nicole Mardis, Antoine Guilmain, and Jonathan Kanevsky.

The event is wheelchair/stroller-accessible and the MJLH is happy to welcome all those with children! If you have any dietary restrictions, or any particular arrangements need to be made, please feel free to contact manager.mjlh@mail.mcgill.ca.

Please RSVP to the event HERE.