III. Canadian Charter of Rights and Freedoms

The fundamental rights and freedoms of older adults in Canada are protected by the Canadian Charter of Rights and Freedoms. Unlike the principles and values discussed above, the Charter is law in Canada.

A. Section 1: Limiting Charter Rights

Charter rights are not absolute: section 1 states that the rights guaranteed by the Charter of Rights and Freedoms are “subject only to such limits as can be demonstrably justified in a free and democratic society.” The question of whether a law constitutes a reasonable limit on a Charter right requires the following considerations, or steps:[19]

· Are the objectives of the impugned law sufficiently important to warrant the limitation of the right?

· When the objective of the law is balanced against the nature of the right, is the degree to which the limitation furthers other rights or policies of importance in a free and democratic society proportionate to the extent of the limitation of the right?

· Is there a rational connection between the limitation of the right and the objective of the law?

Applying this analysis, discrimination on the basis of age (mandatory retirement policy) has been found to be justified under section 1 (see discussion below, “Section 15”). The appropriate balance between individual rights and social objectives under section 1 may shift, however, as the social context of attitudes, beliefs and values changes and develops. For this reason and in this way more recent case law has found that mandatory retirement is no longer “saved” by section 1, for example.

B. Section 32: Scope of Application

The Charter is also limited in scope of application, applying to the decisions and actions of government and government entities only.[20] The Charter does not apply to the actions of private entities (to which provincial human rights legislation applies).

The distinction between private and public entities is not always self-evident. A hospital, for example, may be a public or government entity with regards to certain kinds of decisions and actions, and a private actor with regards to other kinds of decisions or actions. Public actions and decisions must comply with the rights guaranteed by the Charter. Private actions and decisions are not subject to Charter review.

Two decisions of the Supreme Court of Canada concerning the equality rights guaranteed by section 15 illustrate this distinction. The issue in Stoffman v. Vancouver General Hospital[21] was whether Vancouver General Hospital’s mandatory retirement policy violated the equality rights guaranteed by section 15 (discussed below) by discriminating on the basis of age. The Court concluded that the hospital’s retirement policy could not be subjected to a Charter review as the hospital was not a government entity. In the subsequent case of Eldridge v. British Columbia[22] (also discussed below) the Supreme Court concluded that a hospital’s provision and delivery of medically necessary services was subject to Charter review. The issue in that case was whether the failure to provide interpretation services to deaf patients violated the patients’ equality rights guaranteed by section 15. Publicly provided health services were a “comprehensive social program” provided by the government;[23] the government had chosen to implement that program through the hospitals. When hospitals exercised their authority (conferred by legislation) to make decisions about service provision, they were acting as vehicles for implementation of that government program. The hospital’s retirement policy was, in contrast, an internal and “private” (as opposed to public) management matter.

Legislation must always be consistent with the Charter. In McKinney v University of Guelph[24] (discussed below) for example, the Supreme Court of Canada considered the question of whether Ontario’s Human Rights Act discriminated on the basis of age (in violation of section 15) by excluding persons over 65 in its provisions regarding employment discrimination. That case concerned a university’s mandatory retirement policy; the Court concluded that the university was a private entity and so the Charter did not apply, although it went on to consider the section 15 issue regardless. The human rights legislation under consideration was discriminatory and therefore violated section 15 , but was “saved” (see discussion below) by section 1 (that legislation has since been amended, and age is no longer excluded).

Even where a public body is not involved, as in cases concerning private nursing homes or care facilities, practices should be consistent with Charter values, on the basis that the Charter enshrines fundamental social values and generalised ideas of justice and fairness.

C. Section 33: The Notwithstanding Clause

Both Parliament and provincial legislatures have a limited power under section 33 to pass laws that are exempt from certain Charter provisions – those concerning fundamental freedoms and legal and equality rights. This section is sometimes referred to as the "notwithstanding clause".

In order to rely on this section, Parliament or a legislature must state specifically that a particular law is exempt from the Charter. It must also state which sections of the Charter do not apply. An exemption from the Charter lasts a maximum of five years. After that, if Parliament or the legislature concerned wishes it to continue to be exempt from the Charter, it must make a new declaration under this section.

The purpose of this section is to require a government that wishes to limit Charter rights to say clearly what it is doing and accept the political consequences of doing so.

It also ensures that Parliament and the legislatures, not the courts, have the final say on important matters of public policy. If, at a certain point, the rights in the Charter no longer reflect Canadian values, then democratically elected bodies like Parliament and the legislatures can make laws that are not bound by the Charter.

To date, provincial legislatures have used this section rarely. It has never been used by the federal Parliament.

D. Charter Protected Rights and Freedoms

The Charter provisions regarding equality (section 15), liberty and security of the person (section 7), and arbitrary detention (sections 10 and 12) are especially relevant to substitute decision making and responses to elder abuse and exploitation, the focus subject areas in this Report.

1. Section 15

The equality rights guaranteed by section 15 will be of obvious relevance to the development of anti-ageist legislation. It is important to note that discrimination is permitted where justified under section 1, and also where it is used as a factor in designing programs, activities or laws that are intended to ameliorate disadvantage (under subsection 2) as where benefits are conferred on individuals over the age of 65, for example.

Section 15 guarantees equal protection and benefit of the law without discrimination:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The grounds listed in section 15 are known as the “enumerated grounds.” The section has been interpreted as prohibiting (subject to section 1) discrimination on the basis of characteristics analogous to the enumerated grounds, in addition to the enumerated grounds themselves.

Age is an enumerated ground, but the Supreme Court of Canada has described age as different, in significant ways, from other enumerated grounds:

[U]nlike race, religion, or gender, age is not strongly associated with discrimination and arbitrary denial of privilege. This does not mean that examples of age discrimination do not exist. But age-based distinctions are a common and necessary way of ordering our society. They do not automatically evoke a context of pre-existing disadvantage suggesting discrimination and marginalization under this first contextual factor, in the way that other enumerated or analogous grounds might…. The fact that ‘[e]ach individual of any age has personally experienced all earlier ages and expects to experience the later ages’ (P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 52-54) operates against the arbitrary marginalization of people in a particular age group. Again, this does not mean that age is a “lesser” ground for s. 15 purposes. However, pre-existing disadvantage and historic patterns of discrimination against a particular group do form part of the contextual evaluation of whether a distinction is discriminatory. [25]

a) Discrimination

Differential treatment on the basis of one of the enumerated or analogous grounds will not, in every instance, be discriminatory. The nature of discrimination was explained by the Supreme Court of Canada in the case of Law v. Canada (Minister of Employment and Immigration):[26]

[T]he purpose of section 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect, and consideration…. Human dignity … is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment based upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity… concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?[27]

Law involved a claim by a 35 year old widow that she had been discriminated against because she did not qualify for Canada Pension Plan survivor benefits available to persons 45 years or older. The Supreme Court held that this age based distinction was not discriminatory, and so did not violate section 15. Discrimination on the basis of age, where it existed, is most likely to affect “people of advanced age who are presumed to lack abilities that they may in fact possess.”[28]

b) Substantive equality

The equality rights guaranteed by section 15 have been interpreted as substantive, rather than formal rights. This means that a law applying in a uniform way which, in implementation, has a disproportionately negative effect on “enumerated” classes of persons will be in violation of section 15. As explained by McIntyre J. in Andrews v. Law Society of British Columbia,[29] “accommodation of differences . . . is the true essence of equality”.

In Eldridge v. British Columbia,[30] for example, a group of deaf patients asserted that their equality rights were infringed by the failure of the BC Medicare system to ensure that sign language interpreters would be available during hospital visits and medical appointments. The policy was, on its face, an example of formal equality: everyone was treated in the same way, with the same access to medical services. However, by treating the hearing impaired as if they were “the same as everyone else” and did not have particular requirements this formal equality had the effect of infringing the substantive equality of deaf patients; if a deaf patient is unable to communicate with a medical service provider, he or she does not have equal access to medical care.

c) Discrimination on the basis of age

Discrimination on the basis of age was considered by the Supreme Court of Canada in a number of decisions issued in 1990: McKinney v. University of Guelph;[31] Stoffman v. Vancouver General Hospital;[32] Harrison v. University of British Columbia;[33] Douglas/ Kwantlen Faculty Assn v. Douglas College.[34] All concerned mandatory retirement policies. Although the Court concluded in each case that the entity in question was private, it went on to consider the section 15 issue. The most complete discussion can be found in McKinney.

Giving the majority decision in that case, Justice LaForest concluded that, while discrimination on the basis of age was clearly prohibited by section 15, age was qualitatively different from the other enumerated grounds:

…there is nothing inherent in most of the specified grounds of discrimination, e.g. race, colour, religion, national or ethnic origin, or sex that supports any general correlation between those characteristics and ability. But that is not the case with age. There is a general relationship between advancing age and declining ability… Racial and religious discrimination and the like are generally based on feelings of hostility or intolerance. The truth is, that while we must guard against laws having an unnecessary deleterious impact on the aged based on inaccurate assumptions about the effects of age on ability, there are often solid grounds for importing benefits on one age group over another in the development of broad social schemes and in allocating benefits.

Justice Wilson took a different approach to the question of discrimination. The mere fact of an age-based distinction did not establish prejudice but “compelled” the following questions:

Was there prejudice? Did the mandatory retirement policy reflect the stereotype of old age? Was an element of human dignity at issue? Were academics required to retire at age 65 on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity? The answer was clearly yes and section 15 was therefore infringed… Declining intellectual ability is a coat of many colours - what abilities, and for which tasks? The discrepancies between physical and intellectual abilities amongst different age groups may be more than compensated for by increased experience, wisdom, and skills.. Many an athlete is “washed up” by the age of 35… [h]owever many remain competitive well into their forties, while some younger athletes continue to strive for, but never attain, professional status.

The majority found that, although the policy was clearly discriminatory the limitation was “demonstrably justified in a free and democratic society” and therefore “saved” by section 1. Mandatory retirement was justified by its connection to the university system of employment generally and the tenure system in particular. Individuals working within that system had agreed to mandatory retirement as part of the employment bargain, getting return the significant advantages associated with an enriched working environment. Society generally also benefited from the system, which ensured both academic freedom and ensured that research remained fresh and “cutting edge” by regularly replacing older academics with younger ones (the other cases decided on this issue found the discrimination was justified under section 1 for similar reasons).

The majority also found that the exclusion of workers over the age of 65 from the protection of the Human Rights Code was, while discriminatory in effect (if not purpose), “saved” by section 1. Mandatory retirement was permitted, not required, by the legislation and served an important organizational function in the workplace

Mandatory retirement and section 15 were revisited by the Ontario Supreme Court in 2008 in Association of Justices of the Peace in Ontario v. Ontario (Attorney General).[35] Crucially, the social context, including consciousness of ageism and its effects, had changed dramatically in the intervening years:

[I]n the sixteen years since the Supreme Court of Canada’s decision in McKinney, there has been a sea change in the attitude to mandatory retirement in Ontario, led by the efforts of the [Human Rights] Commission…. Ageism has been recognised by the Commission as an “insidious kind of discrimination having an impact on policies, programs, and legislation affecting large segments of society”.[36]

Judicial interpretation of section 15 had also evolved during this period, and the threshold question of discrimination now had to be answered with reference to the analysis in Law v. Canada (Minister of Employment and Immigration),[37] which explained discrimination as involving the violation of human dignity and freedom. Considering these factors in Association of Justices of the Peace in Ontario v. Ontario (Attorney General), the court concluded that the distinction in this case (age-based retirement):

· Reinforced pre-existing ageist stereotypes;

· Was inconsistent with the actual needs, capacities and circumstances of the Applicants;

· That the ameliorative purpose of the impugned law did not make it any less discriminatory; and

· That the interest affected was profound - the Applicant’s fundamental dignity.

There is clearly a stereotypical application of preconceptions about age - that, without regard to their individual capabilities and needs, justices of the peace over 70 no longer have the mental acuity or the physical stamina to engage in their challenging work… mandatory retirement of justices of the peace, like mandatory retirement of university professors in McKinney and physicians in Stoffman, is based on the stereotypical application of presumed group characteristics that serves to perpetuate the view that they are less deserving of respect in Canadian society.”[38]

The infringement of section 15 could no longer be “saved” by section 1. Society’s “appreciation of the insidious effects of age discrimination ha[d] expanded… improvements in medicine, physical and mental fitness and changed social attitudes have allowed people to make useful contributions to society well beyond the age that was once considered to be the time of retirement. The benefits to society can hardly be doubted.”[39]

d) Section 15(2)

Section 15(2) provides that a law, program or activity with the objective of ameliorating disadvantages facing members of an enumerated or analogous group will not be discriminatory under section 15. Section 15(2) was explained by the Supreme Court of Canada in Lovelace v. Ontario as “confirmatory” of and supplementary to subsection 1, rather than providing a “defence or exemption”; laws or programs intended to ameliorate disadvantage would not negatively affect the “human dignity” of the affected group and so would not violate the rights guaranteed by section 15.[40] The Court did not rule out the possibility that s. 15(2) could be considered independently in a future case and, indeed, the interpretation of s. 15(2) was revisited by the Court in R. v. Kapp.[41] The issue in that case was whether the federal government’s Aboriginal Fisheries Strategy was discriminatory under section 15 and, if so, the impact of section 15(2). Referring to the “exemptive” and “interpretative” approaches to section 15(2) described in Lovelace, the Court identified a “third option”:

if the government can demonstrate that an impugned program meets the criteria of s. 15(2), it may be unnecessary to conduct a s. 15(1) analysis at all. As discussed at the outset of this analysis, s. 15(1) and s. 15(2) should be read as working together to promote substantive equality. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other. Section 15(2) supports a full expression of equality, rather than derogating from it. ‘Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it’: P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 2, at p. 55-53.[42]

2. Section 7

Section 7 guarantees the right to life, liberty and security of the person:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

“The analysis of s. 7 of the Charter involves two steps. To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that that deprivation is contrary to the principles of fundamental justice.”[43]

a) “right to life, liberty and security of the person”

Autonomy

The right to liberty includes the right to make fundamental personal decisions in addition to freedom from physical constraint and interference with physical freedom. Liberty includes the right to an irreducible sphere of personal autonomy regarding matters that “can properly be characterized as fundamentally or inherently personal such that, by their very nature, they might implicate basic choices going to the core of what it means to enjoy individual dignity and independence.”[44] Within that sphere, individual choices must be free from state interference. The Supreme Court of Canada has also held that the “security of the person” protected by section 7 includes an individual’s “psychological integrity”[45] where the interference is sufficiently serious.

The security rights protected by section 7 include the right to make decisions regarding one’s own medical treatment. [46] Where a person is no longer capable of making his or her own wishes known, previously expressed wishes (while capable) must be taken into account in order to preserve, in so far as possible, this autonomous sphere.[47] Both the Substitute Decisions Act and the Health Care and Consent Act in Ontario seek to maximise personal autonomy for persons who are currently incapable by allowing for prior expressed wishes, values and beliefs to guide substitute decision as follows:

· a substitute decision for an incapable person must take into account prior expressed wishes applicable in the circumstances when making a decision on behalf of the incapable person;[48] and

· where there is no prior expressed wish applicable in the circumstances the substitute decision maker must make a decision in the best interests of the incapable person, which will include considering prior expressed wishes generally (that do not apply directly to the decision in question), the values and beliefs of the incapable person, the general benefit of the treatment to the proposed person and whether any less intrusive alternative is available.[49]

Section 7 will also be relevant in the context of legislation applying to elder abuse and exploitation. Inquiries into a potentially abusive situation may be interpreted as an intrusion into the individual’s sphere of autonomous decision making and independence, and so an infringement of the personal security protected by section 7. Unless an adult person is mentally incapable they are considered responsible for reporting and accessing help regarding any abuse (outside of a criminal offence) that they may be experiencing[50] in the absence of mandatory reporting laws. Orders restricting a respondent’s rights made pursuant to adult protection or domestic violence legislation (emergency protection orders for example) may also be considered to infringe the respondent’s section 7 rights, although the infringement may be considered to be justified under section 1.[51]

Dignity

Section 7 has been interpreted as not including “a generalized right to dignity”, although “respect for the inherent dignity of persons is… an essential value in our free and democratic society which must guide the courts in interpreting the Charter.”[52] Dignity will be an important conisderation in the determination of best interests, where a person is no longer capable and where no prior expressed wishes are directly appliable in the situation. This situation is “more complex” than a situation in which known prior wishes directly apply; it is unknowable whether the person would have consented to the particular treatment “[y]et, respect for the dignity and welfare of an incapable person may require that person to be treated.”[53] The Ontario Consent and Capacity Board considered the significance of dignity in Re E.J.G., [54] finding “guidance” in the following passage from the decision of the House of Lords in Airedale NHS Trust v. Bland.[55]

The medical and nursing treatment of individuals in extremis and suffering from these conditions (persistent vegetative state) entails the constant and extensive handling and manipulation of the body. At some point, such a course of treatment upon the insensate patient is bound to touch the sensibilities of even the most detached observer. Eventually, pervasive bodily intrusions, even for the best motives, will arouse feelings akin to humiliation and mortification for the helpless patient. When cherished values of human dignity and personal privacy, which belong to every person living or dying, are sufficiently transgressed by what is being done to the individual, we should be ready to say: enough.[56]

The substitute decision maker does not “stand in the shoes” of the incapable person, and respecting the incapable person’s decision making rights under section 7 does not require deference to the substitute decision maker with regards to best wishes; “[t]he S.D.M. is important but only as part of a statutory regime which, by its terms, tries to respect an incapable person’s well-being and dignity where that person’s consent or refusal to treatment cannot be established.”[57] Where there is a conflict between the substitute decision maker and the treating physician regarding a person’s best interests in the medical context, the Review Board will hear submissions from all parties and make a decision that will be consistent with the person’s rights to autonomy and with his or her dignity and well being. [58]

b) “the right not to be deprived thereof except in accordance with the principles of fundamental justice”

Section 7 provides that an individual can be deprived of his or her right to “life, liberty and security of the person” but only where this is done in accordance with the “principles of fundamental justice.” This allows the state to incarcerate individuals of criminal offences, for example, but only where that incarceration follows procedures that are consistent with the “principles of fundamental justice.”

The “principles of fundamental justice” have been given some definition and explanations by the courts. They are the “basic tenets of our legal system,” with both procedural and substantive dimensions,[59] and must meet the following criteria:

The principle must be a legal principle.
The principle must be vital or fundamental to societal notions of justice.
The principle must be capable of being identified with some precision.[60]
The principles of fundamental justice have both a procedural and a substantive aspect. Procedural principles include the right to full and proper disclosure[61] and the right to silence.[62] Substantive principles include the subjective mens rea or “guilty mind” requirement for a conviction of murder.

This aspect of section 7 will be relevant in all situations involving a potential loss of liberty and security rights, including capacity assessments generally (which may result in a loss of personal decision making authority) and capacity assessments preceding care facility admission in particular. In Saunders v. Bridgeport Hospital, for example, the court found that a person should be informed that a capacity assessment, for the purposes of determining admission to a care facility, is going to be undertaken (and the significance of that assessment) as a matter of procedural fairness.[63]

Section 7 rights must be realistically realisable in situations where the individuals who are in fact most likely to be at risk, with regards to their section 7 rights, are less likely (vis a vis “mainstream society”) to be able to independently protect and enforce those rights. In the substitute decision making context, discussed below, and, in particular, substitute decision making relating to care facility admittance, a robust system, for independent review of decisions, including both an independent review body and accessible independent advocacy, is essential to this objective.

3. Section 9

Section 9 protects the right of an individual not to be arbitrarily detained or imprisoned. Although section 9 is considered most frequently in the criminal law context, as opposed to the civil, it has been considered in the context of mental health and (unsuccessfully) with regards to child protection proceedings. Section 9 will have obvious relevance to a substitute decision to place an individual in a care facility or nursing home, where the legislative criteria on which that decision is made can be shown to be arbitrary.

a) Detention

Detention under both section 9 and section 10 of the Charter was defined by the Supreme Court of Canada in R. v. Grant as a “suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.”[64]

The question of whether section 9 could apply to “detention” under child welfare legislation was considered in the recent (2006) case of C.H.S. v. Alberta (Director of Child Welfare).[65] No authority was provided for the point, and the court determined that being apprehended by child welfare was neither a punishment nor a detention, and the section 9 argument was not permitted on the basis that it could have no prospect of success.

b) Arbitrary

Detention is defined as “not arbitrary where there are “standards that are rationally related to the purpose of the power of detention.”[66] The rights protected by section 9 are a particular manifestation of the general principle articulated in section 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice.[67] Section 9 serves to protect individual liberty against unlawful state interference. “A lawful detention is not arbitrary within the meaning of s. 9 unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9.” [68]

Section 9 may be applicable where a person is “involuntarily committed” to a care facility or nursing home and where the criteria for committal is found to be vague and overly broad. The applicability of section 9 in the context of involuntary committal and mental health legislation was considered in Thwaites v. Health Sciences Centre Psychiatric Facility, with the court ruling that the criteria for involuntary committal contained in the legislation was vague and overly broad, and therefore arbitrary. [69] The criteria at the time required that a medical practitioner, having examined the patient, state his or her opinion that the “person should be confined as a patient of a psychiatric facility.” Manitoba’s Mental Health Act[70] was amended following Thwaites, and the criteria for involuntary admission are now stated as follows, to require that a person:

a) is suffering from a mental disorder;

b) because of the mental disorder,

(i) is likely to cause serious harm to himself or herself or to another person, or to suffer substantial mental or physical deterioration if not detained in a facility, and

(ii) needs continuing treatment that can reasonably be provided only in a facility; and

c) cannot be admitted as a voluntary patient because he or she refuses or is not mentally competent to consent to a voluntary admission.

The provision survived a subsequent constitutional challenge, with the court finding that the amended “test” answered the concerns raised in Thwaites regarding the “arbitrariness” of the procedure prior to amendment.[71] A similar provision pertaining to involuntary commitment under British Columbia’s Mental Health Act also withstood a section 9 challenge in McCorkell v. Riverview Hospital Review Panel.[72] The decision in that case emphasised the importance of a contextual analysis of Charter protected rights, taking into account the particular purpose and objectives of mental health legislation which were distinct from those in the criminal law context (the context in which the rights protected by section 9 would most often be interpreted). In this context, standards for committal must “strike a reasonable balance between the rights of the individual to be free from restraint by the state and society’s obligation to help and protect the mentally ill… [u]nlike incarceration in the criminal justice system, involuntary committal is primarily directed to the benefit of the individual”.[73]

4. Section 10

Section 10 protects the right, on arrest or detention to be:

· Informed promptly of the reasons therefore

· Retain and instruct counsel without delay and to be informed of that right

· To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Violation of rights protected under section 10, 12 and 15 of the Charter were raised in Saunders v. Bridgepoint Hospital,[74] concerning committal to a care facility following a finding that the plaintiff was not capable of making the decision. The court declined to consider the Charter violations in that case, but noted that the plaintiff’s “non-consensual detention” in a care facility “enforced by threat and intimidation” was “relevant” to the Court’s decision that Mr. Saunders was capable of consenting to admission to a care facility.

5. Section 12

Section 12 guarantees the individual’s right not to be subjected to cruel and unusual treatment or punishment. The extent or degree to which “cruel and unusual treatment or punishment” will apply in a non-penal/non-quasi-penal context was considered in Rodriguez,[75] specifically, the definition of “treatment” at the hands of the state for the purposes of section 12. The Court observed that section 12 had been considered in cases involving deportation,[76] and medical care imposed without consent on mentally ill patients,[77] both non-criminal contexts, while noting the decision in Re McTavish and Director, Child Welfare Act,[78] in which it was held that s. 12 “was not intended to extend to medical treatment and may even be restricted to penal or quasi-penal matters". For the purposes of the challenge in Rodriguez, the Court concluded that “a mere prohibition by the state on certain action, without more, cannot constitute "treatment" under s. 12,” while “assuming” for the purposes of the analysis, that “‘treatment’ within the meaning of s. 12 may include that imposed by the state in contexts other than that of a penal or quasi-penal nature.” Beyond this, the scope of treatment in section 12 has not been definitely determined. Once “treatment” or “punishment” has been established, the standard for “cruel and unusual” is that the treatment or punishment be "so excessive as to outrage standards of decency."[79]

E. Summary

Consistent with the post-McKinney, post- Law approach to age discrimination and section 15 (as described in Association of Justices of the Peace in Ontario v. Ontario (Attorney General) the evaluation of age-distinction in law or policy for consistency with section 15, involves the following questions:[80]

Is there prejudice?
Does the policy or legislation in question reflect the stereotype of old age?
Is an element of human dignity at issue?
Is the policy or legislation based on the unarticulated premise that with age comes increasing incompetence and decreasing intellectual capacity?

Where substitute decision making and/or protective legislation specifies (old) age as a factor, these questions will be relevant.

Section 7 requires that legislation relating to substitute decision making and to protection from abuse and exploitation must be structured to ensure that independence and autonomous decision making are respected and enabled while physical integrity and dignity are also adequately protected.

Sections 9, 10 and 12 may apply in the nursing home/care facility context, depending on the applicable legislation and interpretation of both “treatment” and “outraging the standards of decency” in this context. It is important to note that care facilities, and care facility residence, are not considered “health care” for the purposes of either universal medical care insurance coverage or the Canada Health Act,[81] and this status will be relevant to any analysis of these sections in the care facility context.

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