Lois en matière de santé mentale au Canada : reconnaître et rectifier une situation problématique

Cet article examine les nombreuses contradictions de la législation en matière de santé mentale au Canada et tente de discerner des moyens de réorienter le politique générale du gouvernement. Dans un premier temps, l’auteur présente un aperçu des traits principaux des lois provinciales et territoriales en santé mentale, qui s’avèrent pour la plupart coercitives. L’article examine ensuite l’échec de la Charte canadienne quant à ses promesses aux personnes atteintes de troubles mentaux. L’auteur soutient que la législation en santé mentale reste ancrée dans le modèle médical, alors que d’autres paradigmes qui font la promotion des droits humains pourraient transformer le programme législatif.This article explores several conundrums and attempts to identify ways of redirecting the Canadian ship of state. It first presents an overview of some of the salient features of the array of mainly coercive provincial and territorial mental health statutes. The failure in the main of the Charter to deliver on its early ostensible promises for people with mental health problems is assessed. Next, the author argues that extant legislation remains anchored in the medical model, when other human rights promoting paradigms transforms the statutory agenda.Este artículo examina las numerosas contradicciones de la legislación en materia de salud mental en Canadá e intenta discernir los medios para reorientar la política general del gobierno. En un primer tiempo, el autor presenta un resumen de los rasgos principales de las leyes provinciales y territoriales en salud mental, que son en su mayoría coercitivas. El artículo examina enseguida el fracaso de la Carta Canadiense de los Derechos y Libertades en cuanto a sus promesas a las personas que sufren de trastornos mentales. El autor sostiene que la legislación en salud mental permanece anclada al modelo médico, mientras que otros paradigmas que promueven los derechos humanos podrían transformar el programa legislativo.Este artigo examina as numerosas contradições da legislação em matéria de saúde mental no Canadá e tenta discernir os meios de reorientar a política geral do governo. Primeiramente, o autor apresenta uma visão geral das principais características das leis provinciais e territoriais em saúde mental, que são, em sua maioria, coercitivas. O artigo examina em seguida, a derrota da Carta canadense quanto a suas promessas às pessoas que sofrem transtornos mentais. O autor afirma que a legislação em saúde mental continua ancorada no modelo médico, enquanto que outros paradigmas, que fazem a promoção dos direitos humanos, poderiam transformar o programa legislativo

Lois en matière de santé mentale au Canada : accélérer la réorientation du navire de l’État

Dans cet article, l’auteur répertorie certaines perspectives prometteuses de l’évolution des lois en matière de santé mentale et présente des façons d’évaluer l’état et les progrès de la législation, s’inspirant des organismes internationaux et des efforts concluants d’autres pays. Il examine des facteurs qui pourraient contribuer à l’évolution de ces lois au Canada et conclut qu’il y a des manières cohérentes de changer de direction, bien que, dans ce domaine législatif piégé, personne ne saurait formuler de prédiction fiable.In this article, some hopeful outlooks on the evolution of the law are identified and ways of assessing the state and progress of legislation are advanced, drawing from international organizations and some inspiring efforts in other countries. Potential contributors to the evolution of Canadian mental health law are surveyed. The author concludes that there are coherent ways of changing tack, although in this fraught legislative field, no one can make confident predictions about the future.En este artículo, el autor cataloga ciertas perspectivas prometedoras de la evolución de las leyes en materia de salud mental y presenta las formas de evaluar el estado y progreso de la legislación, inspirándose de los organismos internacionales y los esfuerzos concluyentes de otros países. Examina los factores que podrían contribuir a la evolución de estas leyes en Canadá y concluye que existen maneras coherentes de cambiar de dirección, aunque, en este campo legislativo complejo, nadie sabría formular una predicción fiable.Neste artigo, o autor repertoria algumas perspectivas promissoras da evolução das leis em matéria de saúde mental e apresenta maneiras de avaliar o estado e o progresso da legislação, inspirando-se em organismos internacionais e em esforços de outros países. Ele examina fatores que poderiam contribuir para a evolução destas leis no Canadá e conclui que existem maneiras coerentes de mudar de direção, apesar de, nesta área legislativa limitada, ninguém poder formular uma previsão exata

Latimer: Something Ominous is Happening in the World of Disabled People

Although the Latimer decision breaks no new substantive ground, it has created a furore over the application of the mandatory minimum sentence for murder. This article maintains that, despite the pre-existing need to examine the complex range of issues in mandatory sentences, the Latimer case provides a wholly inapposite base for revisiting this sanction. The Supreme Court of Canada properly rejected the accused\u27s attempt to invoke the defence of necessity, as well as some procedural contentions. The Court also determined that the mandatory minimum sentence for murder was not cruel and unusual punishment as applied to the accused. The reaction of the accused, as well as others, is discussed as a setback for people with disabilities, exposing the shallowness of equality protections for this disadvantaged group. The accused has been portrayed as the victim, despite his having intentionally and premeditatedly killed his child. This article argues that the voices of people with disabilities should be heard and responded to in a manner that more accurately reflects the nature of this homicide. Protections for people with disabilities, as well as children, should be expanded by creating offences and sentencing principles, recognizing the trust reposed in care-providers and the dependence that characterizes some presumably supportive relationships. This article suggests that using the criminal law to promote equality may help to reverse the threatening tide created by the Latimer case

Latimer: Something Ominous is Happening in the World of Disabled People

Although the Latimer decision breaks no new substantive ground, it has created a furore over the application of the mandatory minimum sentence for murder. This article maintains that, despite the pre-existing need to examine the complex range of issues in mandatory sentences, the Latimer case provides a wholly inapposite base for revisiting this sanction. The Supreme Court of Canada properly rejected the accused\u27s attempt to invoke the defence of necessity, as well as some procedural contentions. The Court also determined that the mandatory minimum sentence for murder was not cruel and unusual punishment as applied to the accused. The reaction of the accused, as well as others, is discussed as a setback for people with disabilities, exposing the shallowness of equality protections for this disadvantaged group. The accused has been portrayed as the victim, despite his having intentionally and premeditatedly killed his child. This article argues that the voices of people with disabilities should be heard and responded to in a manner that more accurately reflects the nature of this homicide. Protections for people with disabilities, as well as children, should be expanded by creating offences and sentencing principles, recognizing the trust reposed in care-providers and the dependence that characterizes some presumably supportive relationships. This article suggests that using the criminal law to promote equality may help to reverse the threatening tide created by the Latimer case

The Aftermath of the Marshall Commission: A Preliminary Opinion

Prolegomena to the Cure or the Beginning of the Epitaph: Look, Doctor, try to see things my way. All the diagnoses have been made and the treatment has been prescribed, but somehow ... I just don\u27t feel quite right. Sometimes I think I\u27ll never get well. Is there something you haven\u27t told me? The Doctor\u27s skeptical but still deferential patient echoes the sentiments of many who have keenly observed the unfolding of the Donald Marshall, Jr. saga. A monstrous injustice was perpetrated and then sustained over a period of fifteen years in the conviction and ongoing persecution of an innocent person. Finally, by October 1986, even a government which had been blind to the need for reform in the criminal justice system could no longer resist the pent up provincial and national demand for a full inquiry into the circumstances of Mr. Marshall\u27s conviction. The Nova Scotia Government also asked the Royal Commission to make recommendations to help such tragedies from happening in the future .\u27 On January 26, 1990, after extensive public hearings, several separate research projects, and a forum on Native rights, racism, and the role of the Attorney General, the Commission published its seven volume study. The report came in one fell swoop with a catastrophic effect. \u2

Involuntary Psychiatry in Nova Scotia: The Review Board Reports (1979-1983) and Recent Proposals for Legislative Change

The Nova Scotia Psychiatric Facilities Review Board, appointed under s. 53 of the Hospitals Act1, fulfils many vital functions affecting the treatment and liberty of the patient involuntarily confined in the psychiatric hospitals of the Province.2 Although its proceedings are held in camera,3 the Board fortunately publishes an Annual Report which is tabled in the House of Assembly.4 Neither lay persons aor lawyers are likely to scrutinize these documents and this Comment is intended in part to redress this regrettable disregard as well as to offer some critical remarks. They contain material which will both hearten and disturb the reader, the character and extent of one\u27s reactions likely varying widely according to such complicated variables as one\u27s outlook on the causation of mental illness and on the primacy of constitutionally enshrined rights and freedoms. None the less, the Reports present an important, if only partial, record of the attention accorded the mentally ill in Nova Scotia by the legal system. The Reports are also worthy of examination in that many of the recommendations contained therein may have a major influence on the future of mental health law in Nova Scotia. As discussed in Part C (infra), current Ministerial proposals closely resemble some of the Board\u27s propositions. As the courts are empowered under the Hospitals Acts or the Charter of Rights and Freedoms or the prerogative writs to review some mental health issues, one might have expected to see cases appearing regularly, but the Board would seem to be the only place of significant legal activity for the civilly committed in the Province outside the Legislature

The Charter of Rights and the Legalization of Politics in Canada

Prospective readers would be forgiven were they to react in a dismissive manner to yet another book about the Charter. For any contribution in this now over-cultivated field, the question must immediately be asked: Has the author brought a new vision, a fresh insight to his or her inquiries? The answer in the case of The Charter of Rights and the Legalization of Politics in Canada is an unhesitant Yes

Too Good To Be True: Second Thoughts on the Proliferation of Mental Health Counts

The last two decades have witnessed the proliferation of mental health courts, proffered by governments as an efficacious and sometimes exclusive response to the complex social dynamics causing the criminalization of persons who live with mental health problems. the ready embrace of this variant of the problem-solving-courts genre has diverted policy-makers and citizens from confronting the root causes of the challenging intersection of mental illness and crime. the new courts have acquired a legitimacy that belies a wide range of doubts about their existence and operation. this commentary will offer a counterpoint to the accelerating momentum of mental health courts. it is intended to discourage their creation and to sharpen the monitoring of functioning courts

A Confluence of Authority and Critique

Reading about murder in the news, seeing it portrayed on the longrunning British television series Inspector Morse, or pondering it as one digests Crime and Punishment are in many ways far preferable to studying, teaching or practising the law of homicide. After a few chapters, and particularly following my re-immersion into the cold substantive law of homicide which commences in chapter 3, one is certainly reminded that this is not a work to read as a pastime in blissful circumstances . It is, nonetheless, a remarkably good book in terms of its breadth, authority and originality in approach and substance. It marks a point of some maturation in Canadian legal scholarship in several senses. It presents a comprehensive discussion of the most serious of crimes, long the subject of the treatise writer, but its looseleaf format permits a regular updating of the law as Parliament and the courts contribute to its evolution in the post-Charter era

The Convention on the Rights of Persons with Disabilities: Beginning to Examine the Implications for Canadian Lawyers\u27 Professional Responsiblities

The United Nations Convention on the Rights of Persons with Disabilities (hereafter the CRPD or the Convention) should herald a new epoch in the way persons with disabilities are treated throughout the world community. The entire panoply of ramifications of this Convention, the purpose of which is “to promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”, (Article 1) is as yet unascertainable. However, States Parties must “take all appropriate measures to eliminate discrimination by any person, organization or private enterprise” (Article 4(1) (e)), among other obligations. For the self-governing legal profession, the primary responsibility for ensuring compliance falls to its individual members, its law societies and its federations. This mission is critical in order to demonstrate that lawyers avoid discriminatory “customs and practices” (Article 4(1)(c)) and it is incumbent upon the profession as it continues to fulfil its essential role as an unwritten pillar of the Canadian constitution in upholding the rule of law. This article provides a small contribution to the extensive self-examination mandated by the Convention for the bar. It offers a brief overview of the CRPD in order to introduce its rich array of novel measures. The paper spotlights principles of professional ethics which are implicated by the Convention and identifies other areas of governance and policy wherein lawyers should consider its effects. The article then endeavours to articulate features of the moral dimension of legal professionalism which must be reconfigured in the wake of the Convention. The exhortations of the CRPD for lawyers seem daunting, but the prescribed reforms are both socially responsible and long overdue. The concentration herein will be on persons with long-term “mental” or “intellectual” impairments (Article 1), who experience discrimination and stigma most acutely, as exemplified by the readiness of society and the legal system to intrude upon their autonomy, remove their capacity for decision-making, permit forcible interventions and confine them to “live in conditions of poverty” (Preamble (t)). However, most of the following comments would apply to other persons with disabilities who have “physical” or “sensory impairments” (Article 1)