Endnotes2017-03-03T18:35:37+00:00

[1] This paper was prepared by Michael Bach, Executive Vice-President of the Canadian Association for Community Living and Lana Kerzner, Barrister and Solicitor, who is a disability law lawyer in Ontario. The paper has been prepared for the Law Commission of Ontario, and we express our gratitude for their generous financial contribution for undertaking the research and preparation of this paper.  We are also grateful for the financial contribution for student and background research made through the Community-University Research Alliance Project, titled ‘Disabling Poverty/Enabling Citizenship: Examining Exclusions and Identifying Opportunities for the Full Participation of Canadians with Disabilities’ and funded by the Social Sciences and Humanities Research Council.  We express our sincerest appreciation to Justin Gould, law student, for his excellent research assistance.  In writing this paper, we drew on two earlier papers we wrote:  Lana Kerzner, “Embracing Supported Decision-Making: Foundations for a New Beginning” (March, 2009), written for the Canadian Association for Community Living and Michael Bach “The Right to Legal Capacity under the UN Convention on the Rights of Persons with Disabilities: Key Concepts and Directions for Law Reform” in Agustina Palacios and Francisco Bariffi, eds., Legal Capacity, Disability and Human Rights: a review in the light of the UN Convention on the Rights of Persons with Disabilities [published in Spanish] (Mexico:  Liberia de Porrua, 2010).  We also express our sincere appreciation to Jeremiah Bach who provided helpful suggestions on earlier drafts of this paper.

[2] These terms are defined in Part One, Section I.

[3] For example see Paul Longmore, “Medical Decision Making and People with Disabilities: A Clash of Cultures” (March 1995) 23:1 The Journal of Law, Medicine and Ethics at 82-87.

[4] See, for example, Deborah Stienstra & Aileen Wight-Felske, eds., Making Equality: History of Advocacy and

Persons with Disabilities in Canada (Toronto: Captus Press, 2003); Alison Pedlar & Peggy Hutchinson, “Restructuring Human Services in Canada” (2000) 15:4 Disability & Society 637-651; A. Turnbull & R. Turnbull, “Self-Determination: Is a Rose by Any Other Name Still a Rose?” (2006) 31:1 Research and Practice for Persons with Severe Disabilities at 1-6.

[5] Alan Borovoy, “Guardianship and Civil Liberties” (1982) 3 Health L.  Can. at 51- 57,  cited in Orville Endicott & Kenneth Pike, “Developing Legal Approaches That Reinforce Rather Than Disregard The Capacity Of Persons With Mental Disabilities To Make Choices”  [(1995)unpublished,  archived at   Ontario Association for Community Living].

[6] See for example, Michael Bach, Jane Anweiler & Cameron Crawford, Coming Home — Staying Home, Legal Research: Supported Decision Making and the Restriction of Guardianship (Toronto: The Roeher Institute, 1994).

[7] Timothy Stainton, Autonomy and Social Policy (Brookfield, Vt.: Ashegate, 1994); Roeher Institute, Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities (Toronto:  Roeher Institute, 1995); Steven Edwards, “The Moral Status of Intellectually Disabled Individuals” (1997) 22:1 Journal of Medicine and Philosophy at 29-42.

[8] The Mental Disability Advocacy Centre, “Guardianship and Human Rights in Bulgaria” (August 2007) at 5-6 online: The Mental Disability Advocacy Centre <www.mdac.info/reports> (last accessed 20 October 2010).  Other country reports on guardianship and human rights are available at this site as well.

[9] Oliver Lewis, “The Expressive, Educational and Proactive Roles of Human Rights: An Analysis of the United Nations Convention on the Rights of Persons with Disabilities” in Bernadette McSherry and Penelope Weller eds., Rethinking Rights-Based Mental Health Laws (Oxford: Hart, 2010) 97 at 98.

[10] Gerard Quinn, “Personhood & Legal Capacity:  Perspectives on the Paradigm Shift of Article 12 CRPD” (Paper presented at Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, Boston, 20 February 2010) at 3-5 online: Inclusion Ireland <www.inclusionireland.ie/documents/HarvardLegalCapacitygqdraft2.doc> (last accessed: 20 October 2010).

[11] Gerard Quinn, “Personhood & Legal Capacity:  Perspectives on the Paradigm Shift of Article 12 CRPD” (Paper presented at Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, Boston, 20 February 2010) at 10 online: Inclusion Ireland <www.inclusionireland.ie/documents/HarvardLegalCapacitygqdraft2.doc> (last accessed: 20 October 2010).

[12] It is estimated that between 4% and 10% of those aged 65 and older have experienced abuse – financial, psychological, physical, sexual, etc.   Canada, National Seniors Council, Report of the National Seniors Council on Elder Abuse (Ottawa: National Seniors Council, 2007) at 5 (Chair: Jean-Guy Souliere).

[13] Health Canada, A Report on Mental Illnesses in Canada (Ottawa: 2002).

[14] Canadian Mental Health Association, Ontario, Mental Health and Addictions Issues for Older Adults: Opening the Doors to a Strategic Framework (Toronto: Canadian Mental Health Association, 2010).

[15] The Roeher Institute, Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities (Toronto: Author, 1995).

[16] See Ontario, Legislative Assembly, Select Committee on Mental Health and Addictions,

Final report, Navigating the Journey to Wellness: The Comprehensive Mental Health and

Addictions Action Plan for Ontarians (August 2010) at 15, online:  Ontario, Legislative Assembly <http://www.ontla.on.ca/committee-proceedings/committee-reports/files_pdf/Select%20Report%20ENG.pdf> (last accessed:  5 October 2010).  The Committee recommended a wide range of legislative, policy and service delivery reforms to address the needs of Ontarians affected by mental health and addictions, including a more integrated and comprehensive system of community-based services and supports and particular measures to re-direct those needing services from the criminal justice system to the community supports system.

[17] See The Roeher Institute, Social Well-Being (Toronto: Author, 1993).

[18] Michael Stein & Janet Lord, “Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities” in Oddný Mjöll Arnardóttir and Gerard Quinn, eds., The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden: Martinus Nijhof, 2009) 17 at 25.

[19] Daniel Mont, “Measuring Disability Prevalence,” (March 2007) at 2-3, online: World Bank <http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf> (last accessed: 7 October 2010).  The social model of disability has been written about extensively.  For an overview of its formulation, see C. Barnes and G. Mercer, eds., Exploring the Divide: Illness and Disability (Leeds, UK: The Disability Press, University of Leeds, 1996).

[20] Lana Kerzner, “Providing Legal Services to People with Disabilities,” (April 2009) at 4, online: ARCH Disability Law Centre <http://www.archdisabilitylaw.ca/publications/archPapers.asp> (last accessed: 7 October 2010).   

[21] Article 15 provides as follows:  “States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity.  In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.”

[22] Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. Doc A/Res/61/106 [adopted by consensus at the UN on Dec. 13, 2006] [CRPD]. Canada signed the CRPD on March 30, 2007 and ratified it on March 11, 2010. The CRPD came into force on May 3, 2008, Article 12, online: UN Enable <http://www.un.org/disabilities/CRPD/CRPDfull.shtml> (last accessed: 7 October 2010).

[23] Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. Doc A/Res/61/106 [adopted by consensus at the UN on Dec. 13, 2006] [CRPD], Article 12, online: UN Enable http://www.un.org/disabilities/CRPD/CRPDfull.shtml (last accessed: 7 October 2010).

[24] International Disability Alliance, “Legal Opinion on Article 12 of the CRPD” (21 June 2008) at 1,

online: International Disability Alliance <http://www.internationaldisabilityalliance.org/representation/legal-capacity-working-group/> (last accessed 7 October 2010).

[25] International Disability Alliance, “Legal Opinion on Article 12 of the CRPD” (21 June 2008) at 1,

online: <http://www.internationaldisabilityalliance.org/representation/legal-capacity-working-group/> (last accessed 7 October 2010).

[26] Health Care Consent Act, 1996, S.O. 1996, c. 2, s. 4(1); Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6, 45; The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, s. 2(c). 

[27] Law Society of Upper Canada, “Rules of Professional Conduct,” Commentary to Rule 2.02(6) (April 2010) at 12, online: Law Society of Upper Canada  <http://www.lsuc.on.ca/with.aspx?id=671> (last accessed: 7 October 2010).

[28] Human Rights Code, R.S.O. 1990, c. H19, s.3.

[29] Capacity Assessment Office, “Guidelines for Conducting Assessments of Capacity” (May 2005) at I.1, online: Ministry of the Attorney General of Ontario <http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-05/guide-0505.pdf> (last accessed: 7 October 2010).

[30]International Disability Alliance, “Legal Opinion on Article 12 of the CRPD” (21 June 2008) at 2,

online: International Disability Alliance  <http://www.internationaldisabilityalliance.org/representation/legal-capacity-working-group/> (last accessed: 7 October 2010).

[31] Capacity Assessment Office, “Guidelines for Conducting Assessments of Capacity” (May 2005) at II.1, online: Ministry of the Attorney General of Ontario <http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-05/guide-0505.pdf> (last accessed: 7 October 2010).

[32] Amita Dhanda, “Legal Capacity in the Disability Rights CRPD: Stranglehold of the Past or Lodestar for the Future?” (2007) 34:2 Syracuse J. Int’l L. & Com. 429 at 431.

[33] Amita Dhanda, “Legal Capacity in the Disability Rights CRPD: Stranglehold of the Past or Lodestar for the Future?” (2007) 34:2 Syracuse J. Int’l L. & Com. 429 at 431.

[34] Amicus Brief, Written Comments by the European Group of National Human Rights Institutions in the European Court of Human Rights, D.D. v. Lithuania, Application No. 13469/06 (22 April 2008) at 2, online: <http://www.interights.org/app/webroot/userimages/file/DD%20Amicus%20Human%20rights%20institutions.pdf> (last accessed: 13 October 2010).

[35] See International Disability Alliance, “IDA on Functional Capacity,” Correspondence from the International Disability Alliance to Professor Ronald McCallum, UN Committee on the Rights of Persons with Disabilities (July 2010) online:  <www.chrusp.org/home/resources> (last accessed 9 November 2010).

 

[36] The concept of capabilities and its relationship to substantive equality is developed in a number of published works by Amartya Sen including “Equality of what?” in S. McMurrin, ed., The Tanner Lectures on Human Values, (Salt Lake City: University of Utah Press, 1980); Amartya Sen, “Rights and Capabilities” in Resources, Values and Development (Cambridge, Mass.: Harvard University Press, 1984); and Commodities and Capabilities (Amsterdam: North Holland, 1985).

[37] Starson v. Swayze, 2003 SCC 32, [2003] S.C.J. No. 33 [Starson].

[38] Health Care Consent Act, 1996, S.O. 1996 c. 2 Sch. A [HCCA].

[39] Monique Dull, “Starson v. Swayze, 2003-2008:  Appreciating the Judicial Consequences” (2009) 17 Health L. J. 51-79.

[40] Monique Dull, “Starson v. Swayze, 2003-2008:  Appreciating the Judicial Consequences” (2009) 17 Health L. J. at 53.

[41] Arlene S. Kanter, “The Promise and Challenge of the United Nations CRPD on the Rights of Persons with Disabilities” (2006) 34 Syracuse J. Int’l L. & Com. 287 at 288.          

[42]Ad Hoc Committee on a Comprehensive and Integral International CRPD,  Final Report on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Art. 1, Delivered to the General Assembly, U.N. Doc. A/61/611 (6 December2006).

[43] CRPD, Article 5.

[44] These are only some of the rights articulated in the CRPD.  Reference should be made to the text of the CRPD relating to its scope and coverage.  See also: 34 Syracuse J. Int’l L. & Com. 287 (2006-2007). This special issue of the Syracuse Law Journal contains articles discussing the significance of the CRPD and its implications.

[45] Arlene S. Kanter, “The Promise and Challenge of the United Nations CRPD on the Rights of Persons with Disabilities” (2006) 34 Syracuse J. Int’l L. & Com. 287 at 289.

[46] CRPD, Article 4.  

[47] Online: United Nations Enable  http://www.un.org/disabilities/default.asp?id=475 (last accessed: 7 October 2010).

[48] Interview of Gábor Gombos and Gerard Quinn by Jarlath Clifford on behalf of ERT, in “Promoting a Paradigm Shift – ERT talks with Gábor Gombos and Gerard Quinn about the UN CRPD on the Rights of Persons with Disabilities and its Optional Protocol” (2008) 2 The Equal Rights Trust, The Equal Rights Review at 85, online: The Equal Rights Trust <http://www.equalrightstrust.org/ertdocumentbank/err_issue02%20reduced.pdf> (last accessed: 7 October 2010).

[49] Interview of Gábor Gombos and Gerard Quinn by Jarlath Clifford on behalf of ERT, in “Promoting a Paradigm Shift – ERT talks with Gábor Gombos and Gerard Quinn about the UN CRPD on the Rights of Persons with Disabilities and its Optional Protocol” (2008) 2 The Equal Rights Trust, The Equal Rights Review at 83, 85, online: The Equal Rights Trust <http://www.equalrightstrust.org/ertdocumentbank/err_issue02%20reduced.pdf> (last accessed: 7 October 2010).  

[50] Amita Dhanda, “Legal Capacity in the Disability Rights CRPD: Stranglehold of the Past or Lodestar for the Future?” (2007) 34:2 Syracuse J. Int’l L. & Com. 429 at 455-456.

[51] Amita Dhanda, “Legal Capacity in the Disability Rights CRPD: Stranglehold of the Past or Lodestar for the Future?” (2007) 34:2 Syracuse J. Int’l L. & Com. 429 at 460-461.

[52] Amita Dhanda, “Legal Capacity in the Disability Rights CRPD: Stranglehold of the Past or Lodestar for the Future?” (2007) 34:2 Syracuse J. Int’l L. & Com. 429 at 455-456.

[53] David Webb, “A New Era in Disability Rights: A New Human Rights Charter Plus a New UN CRPD” in Gyorgy Konczei & Gabor Gombos, eds., Knowledge Base for Dissemination of Advocacy, Policy and Scholarly Resources on the CRPD (2008) at 6, online: Disability Knowledge <http://moodle.disabilityknowledge.org/mod/resource/view.php?id=407> (last accessed: 12 October 2010). 

[54] Tina Minkowitz, “The United Nations CRPD on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions” (2007) 34:2 Syracuse J. Int’l L. & Com. 405 at 408.

[55] Michael Bach, “Advancing Self-Determination of Persons with Intellectual Disabilities: Overview of the Supported Decision-Making Model and Legal Provisions in Canada,” Inclusion Europe Include (2007) at 11, online: Inclusion Europe <http://www.inclusion-Europe.org/documents/INCL1_WEB_mini.pdf> (last accessed: 8 October 2010). 

[56] Inclusion Europe is a non-profit organization that campaigns for the rights and interests of people with intellectual disabilities and their families throughout Europe.

[57] Michael Bach, “Advancing Self-Determination of Persons with Intellectual Disabilities: Overview of the Supported Decision-Making Model and Legal Provisions in Canada,” Inclusion Europe Include (2007) at 1, online: Inclusion Europe < http://www.inclusion-europe.org/documents/INCL1_WEB_mini.pdf> (last accessed: 8 October 2010).

[58] Interview of Gábor Gombos and Gerard Quinn by Jarlath Clifford on behalf of ERT, in “Promoting a Paradigm Shift – ERT talks with Gábor Gombos and Gerard Quinn about the UN CRPD on the Rights of Persons with Disabilities and its Optional Protocol” (2008) 2 The Equal Rights Trust, The Equal Rights Review at 90, online: The Equal Rights Trust <http://www.equalrightstrust.org/ertdocumentbank/err_issue02%20reduced.pdf> (last accessed: 8 October 2010).

[59] Amita Dhanda, “Legal Capacity in the Disability Rights CRPD: Stranglehold of the Past or Lodestar for the Future?” (2007) 34:2 Syracuse J. Int’l L. & Com. 429 at 461.

[60]CRPD, Article 25.

[61] CRPD, Article 23.

[62] CRPD, Article 29.

[63] CRPD, Article 1. International Disability Alliance, “Legal Opinion on Article 12 of the CRPD” (21 June 2008) at 2,

online: International Disability Alliance  <http://www.internationaldisabilityalliance.org/representation/legal-capacity-working-group/> (last accessed 8 October 2010).

[64] Starson v. Swayze, 2003 SCC 32, [2003] 1 S.C.R. 722.

[65] Starson v. Swayze, 2005 SCC 12, [2003] 1 S.C.R. 722 at 759.

[66] Michael Bach, “Advancing Self-Determination of Persons with Intellectual Disabilities: Overview of the Supported Decision-Making Model and Legal Provisions in Canada,” Inclusion Europe Include (2007) at 3, online: Inclusion Europe < http://www.inclusion-europe.org/documents/INCL1_WEB_mini.pdf > (last accessed: 8 October 2010).

[67] Canadian Association for Community Living, Report of the CACL Task Force on Alternatives to Guardianship, (Toronto: Canadian Association for Community Living, 1992).

[68] Orville Endicott & Kenneth Pike, “Developing Legal Approaches That Reinforce Rather Than Disregard The Capacity Of Persons With Mental Disabilities To Make Choices” (1995) [unpublished, Ontario Association for Community Living].

[69] Representation Agreement Act, R.S.B.C. 1996, c. 405.

[70] Gray v. Ontario [2006] O.J. No.266 (Ont. Sup. Ct.) [Gray].

[71] See Inclusion International, “Position Paper – Key Elements of a System for Supported Decision-Making” (November 2008), online: Inclusion International  <http://www.inclusion-international.org/wp-content/uploads/Position_Paper-Supported_Decision_Making1.pdf> (last accessed 16 October 2010).

[72] Starson v. Swayze, 2003 SCC 32,  [2003] 1 S.C.R. 722; Monique Dull, “Starson v. Swayze, 2003-2008:  Appreciating the Judicial Consequences” (2009) 17 Health L. J. 51 at para 1.

[73] Monique Dull, “Starson v. Swayze, 2003-2008:  Appreciating the Judicial Consequences” (2009) 17 Health L. J. 51 at para 31.

[74] See Tina Minkowitz, World Network of Users and Survivors of Psychiatry (September 2009), “Submission to the Committee on the Rights of Persons with Disabilities Day of General Discussion on CRPD Article 12” (September 2009), online: United Nations Human Rights <http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGD21102009.aspx> (last accessed: 16 October 2010).

[75] Psychiatric Patient Advocate Office, “Community Treatment Orders,” in Infoguide, Psychiatric Patient Advocate Office (August 2010) online at: Psychiatric Patient Advocate Office <http://www.ppao.gov.on.ca/inf-com.html> (last accessed: 11 October 2010).  Mental Health Act, R.S.O. 1990, Chapter M.7, s.33. 1.

[76] Canadian Centre for Elder Law Studies and British Columbia Law Institute, “A Comparative Analysis of Adult Guardianship Laws in B.C., New Zealand and Ontario,” Canadian Centre for Elder Law Studies, Report No. 4, British Columbia Law Institute, Report No. 46, October, 2006 at 11, online: British Columbia Law Institute  http://www.bcli.org/sites/default/files/Comparative_Analysis_of_Adult_Guardianship_Laws-1.pdf British Columbia Law Institute (last accessed: 11 October 2010).

[77] We are grateful to Krista James, Staff Lawyer, Canadian Centre for Elder Law, British Columbia Law Institute and Laura Watts, National Director, Canadian Center for Elder Law, for sharing their knowledge and ideas with us regarding the experiences and perspectives of older adults in relation to capacity issues.

[78] United Nations, Human Rights Council Advisory Committee, “The necessity of a human rights approach and effective United Nations mechanism for the human rights of the older person, Working paper prepared by Ms. Chinsung Chung, member of the Human Rights Council Advisory Committee,” (December 2009) online: http://www2.ohchr.org/english/bodies/hrcouncil/advisorycommittee/session4/docs/A-HRC-AC-4%20CRP-1.doc (last accessed: 16 October 2010).

[79] Isaiah Berlin, Four essays on Liberty (London: Oxford University Press, 1969).

[80] Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, submitted to the Minister of Health, Minister of Community and Social Services, Minister Responsible for the Office for Senior Citizens’ Affairs and the Attorney General for

Ontario (Toronto, 1988) (Chair: Stephen Fram).

[81] Michael Silberfeld & Arthur Fish, When the Mind Fails:  A Guide to Dealing with Incompetency (Toronto:  University of Toronto Press, 1994) at 4.

[82] Ruth Faden & Tom Beauchamp, A History and Theory of Informed Consent (New York: Oxford University Press, 1986).

[83] Martha Fineman, The Autonomy Myth (New York: New Press, 2004) at 9.

[84] Catriona MacKenzie & Natalie Stoljar, “Introduction: Autonomy

Reconfigured” in Catriona MacKenzie & Natalie Stoljar, eds., Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (New York: Oxford University Press) at 4.

[85] Isaiah Berlin, Four Essays on Liberty (London: Oxford University Press, 1969).

[86] Gerard Quinn, “Personhood & Legal Capacity:  Perspectives on the Paradigm Shift of Article 12 CRPD” (paper presented at Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, Boston, 20 February 2010) at 10 online: Inclusion Ireland  www.inclusionireland.ie/documents/HarvardLegalCapacitygqdraft2.doc (last accessed: 20 October 2010).

[87] Amita Dhanda, “Legal Capacity in the Disability Rights CRPD: Stranglehold of the Past or Lodestar for the Future?” (2007) 34:2 Syracuse J. Int’l L. & Com. 429 at 446.

[88] Israel Doron, “From Lunacy to Incapacity and Beyond – Guardianship of the Elderly and the Ontario Experience in Defining ‘Legal Incompetence’” (1998) 19:4 Health L.J. at 100; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, at para. 72; David N. Weisstub, Enquiry on Mental Competency: Final Report (Toronto: Queen’s Printer for Ontario, 1990) at 51.

[89] Israel Doron, “From Lunacy to Incapacity and Beyond – Guardianship of the Elderly and the Ontario Experience in Defining ‘Legal Incompetence’” (1998) 19:4 Health L.J. at 102.

[90] This can include both court-ordered and statutory guardianship.

[91] G.H.L. Fridman, The Law of Contract, 5th ed. (Toronto: Carswell, 2006) at 158; The Canadian Encyclopedic Digest, 4th ed., vol. 12 (Toronto: Carswell, 2010) at 727, para. 175.

[92] Brydon v. Malamas, [2008] B.C.J. No. 1179, 2008 BCSC 749 at paras. 47-50.

[93] Business Corporations Act, R.S.O. 1990, c. B.16, s. 118(1).

[94] Evidence Act, R.S.O. 1990, c. E.23, s.18.

[95] Canada Pension Plan Regulations, C.R.C., c. 385, s. 55.

[96] Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[97] Banton v. Banton, (1998) 164 D.L.R. (4th) 176 (Ont. Gen. Div.) at 189.

[98] Banton v. Banton, (1998) 164 D.L.R. (4th) 176 (Ont. Gen. Div.).

[99] Calvert (Litigation Guardian of) v. Calvert, (1997) 32 O.R. (3d) 281 (Ont. Sup.Ct.) at 294.

[100] Calvert (Litigation Guardian of) v. Calvert, (1997), 32 O.R. (3d) 281 (Ont. Sup.Ct.) at 294.

[101] It has been stated that “[t]o be ‘mentally capable’ means that a person must have the ability to understand information relevant to making a decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”  G.T. Monticone, ed., Long-Term Care Facilities in Ontario: The Advocate’s Manual, 3d ed. (Toronto: Advocacy Centre for the Elderly, 2004) at 7.7.  This definition is simply guidance for understanding the concept of capacity.  In many contexts the definition of capacity differs, may be more or less extensive and may be less clear.  Reference to the law that relates specifically to the relevant situation must always be made.

[102] Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6, 45.

[103] Health Care Consent Act, 1996, S.O. 1996, c. 2, s. 4(1).

[104] The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, s. 2(c).

[105] The Vulnerable Persons Living with a Mental Disability Act, C.C.S.M. c. V90, ss. 46, 81.

[106] See e.g. Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 8(2).

[107] Koch (Re) (1997), 33 O.R. (3d) 485 (Gen. Div.) at 512.

[108] Koch (Re) (1997), 33 O.R. (3d) 485 (Gen. Div.) at 521.

[109] Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 8(1), 47(1).

[110] Khan v. St. Thomas Psychiatric Hospital, [1992] 7 O.R. (3d) 303.  The assertion of presumption of capacity was made in relation to competence to consent to psychiatric treatment.

[111] Substitute Decisions Act, 1992, S.O. 1992, c. 30 s. 2(1).

[112] Substitute Decisions Act, 1992, S.O. 1992, c. 30 s. 2(2).

[113] Health Care Consent Act, 1996, S.O. 1996, c. 2 s. 4(2).

[114] See e.g. Civil Code of Quebec, Arts. 153, 154.

[115] Gerard Quinn & Stefan Barriga, “The Right to Legal Capacity in the CRPD: A Catalyst for Law Reform,” (2008) 57:1 International Rehabilitation Review at 15.

[116] David N. Weisstub, Enquiry on Mental Competency: Final Report (Toronto: Queen’s Printer for Ontario, 1990).

[117] Stephen  Fram (1987), Final Report of the Advisory Committee on Substitute Decision-Making for Mentally Incapable Persons (Toronto: Advisory Committee on Substitute Decision-Making for Mentally Incapable Persons) at 41.

[118] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 53.

[119] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 53.

[120] Starson v. Swayze, 2003 SCC 32 at 759, [2003] 1 S.C.R. 722.

[121] Nova Scotia (Minister of Health) v. J.J., 2005 SCC 12, [2005] 1 S.C.R. 177.

[122] Clark v. Clark, (1983) 40 O.R. (2d) 383.

[123] Clark v. Clark, (1983) 40 O.R. (2d) 383.

[124] Koch (Re), (1997) 33 O.R. (3d) 485 (Gen. Div.).

[125] Koch (Re), (1997) 33 O.R. (3d) 485 (Gen. Div.) at 521.

[126] Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, File No. 2008-00381-I.

[127] Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, File No. 2008-00381-I at para. 22.

[128] Michael Bach, “Supported Decision-Making under Article 12 of the UN CRPD on the Rights of Persons with Disabilities: Elements of a Model” (November 2007) [unpublished].

[129] Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 7(1).

[130] Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 7(1).

[131] Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 8(2)(d).

[132] See The Vulnerable Persons Living with a Mental Disability Act, C.C.S.M. c. V90; The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3; Adult Guardianship and Trusteeship Act, S.A. 2008, c. A-4.2.  For a more detailed discussion of the Manitoba, Yukon and Alberta legislation, see Lana kerzner, “Embracing Supported Decision-Making: Foundations for a New Beginning” (March 2009) [unpublished] at 25-28, 33-36. 

[133] Substitute Decisions Act, 1992, S.O. 1992, c. 30.

[134] The language is substantially the same for both court appointed guardians of the person and court appointed guardians of property.  See Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 22(3), 55(2).

[135] Gray v. Ontario, [2006] O.J. No. 266.

[136] Gray v. Ontario, [2006] O.J. No. 266 at para. 33.

[137] Gray v. Ontario, [2006] O.J. No. 266 at para. 47.

[138] Gray v. Ontario, [2006] O.J. No. 266 at para. 47.

[139] These requirements exist in relation to guardians and attorneys for property as well as guardians and attorneys for personal care.  See Substitute Decisions Act, 1992, S.O. 1992, c. 30 ss. 32(4), 32(5), 66(6), 66(7).

[140] The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3.

[141] Civil Code of Quebec (C.C.Q.), S.Q. 1991, c. 64, Art. 291.  Article 291 of the states that the court appoints an adviser for a person of full age “…who, although generally and habitually capable of caring for himself and of administering his property, requires, for certain acts or for a certain time, to be assisted or advised in the administration of his property.”  See also Alberta’s Adult Guardianship and Trusteeship Act, S.A. 2008, c. A-4.2.

[142] Gerard Quinn, “Added Value of the UN CRPD on the Rights of Persons with Disabilities” (Paper presented to the ECCL Seminar, Drammen, Norway, 12 September 2008), online: National University of Ireland <http://www.nuigalway.ie/cdlp/documents/publications/GQ-120908.pdf> (last accessed: 12 October 2010).

[143] Gerard Quinn, “An Ideas Paper” (Paper presented to the European Foundation Centre Consortium on Human Rights and Disability, Seminar on Legal Capacity, Brussels, 4 June 2009) at 14, online: National University of Ireland <http://www.inclusionireland.ie/documents/AnIdeasPaperbyGerardQuinnJune2009.pdf>

(last accessed: 12 October 2010).

[144] Gerard Quinn, “Personhood & Legal Capacity:  Perspectives on the Paradigm Shift of Article 12 CRPD” (Paper presented at Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, Boston, 20 February 2010) at 6 online: Inclusion Ireland <www.inclusionireland.ie/documents/HarvardLegalCapacitygqdraft2.doc> (last accessed: 20 October 2010).

[145] Jean-Paul Sarte, at 614.

[146] Steven Carnaby, “People with Profound and Multiple Learning Disabilities:  A Review of Research About their Lives” (December 2004) online: MENCAP  <www.mencap.org.uk/displaypagedoc.asp?id=2362> (last accessed: 8 November 2010).

[147] See, for example, Joel Feinberg, Doing and Deserving (Princeton: Princeton University Press, 1970); Donald Davidson, Essays on Actions and Events (New York: Oxford University Press, 1982); and H.L.A. Hart & Tony Honoré, Causation in the Law, 2d ed. (Oxford: Clarendon, 1985).

[148] Personal communication with Audrey Cole, 15 October 2010.

[149] See, for example, Paul Ricoeur, Oneself as Another, trans. by Kathleen Blamey (Chicago: University of Chicago Press, 1992); Seyla Benhabib, Situating the Self: Gender, Community and Postmodernism in Contemporary Ethics (Cambridge: Polity Press, 1992); Alasdair MacIntyre, After Virtue: A Study in Moral Theory 2d ed. (Notre Dame Ind.: University of Notre Dame Press, 1984).

[150] Paul Ricoeur, Oneself as Another, trans. by Kathleen Blamey (Chicago: University of Chicago Press, 1992).

[151] Amartya Sen, Development as Freedom, (New York: Alfred A. Knopf, 1999).

[152] Amartya Sen, “The Standard of Living,” in Geoffrey Hawthorn, ed., The Standard of Living (Cambridge: Cambridge University Press, 1987) at 36.

[153] Amartya Sen, Commodities and Capabilities, (Oxford: Elsevier Science, 1985) at 10.

[154] Martha Nussbaum, Frontiers of Justice:  Disability, Nationality, Species Membership (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2006).

[155] Martha Nussbaum, Frontiers of Justice:  Disability, Nationality, Species Membership (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2006) at 76-77.

[156] Martha Nussbaum, Frontiers of Justice:  Disability, Nationality, Species Membership (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2006) at 192-193.

[157] John Lord & Peggy Hutchinson, “Individualized Funding in Ontario: Report of a Provincial Study” (2008) 14:2 Journal of Developmental Disabilities at 44-53; John Lord & Peggy Hutchinson, “Individualised Support and Funding: Building Blocks for Capacity Building and Inclusion” (2003), 18:1 Disability & Society at 93-108.

[158] See Ernie S. Lightman & Uri Aviram, “Too Much, Too Late: the Advocacy Act in Ontario” (January 2000) 22:1 Law & Pol’y 25 at 25-28; as well as Ontario Ministry of the Attorney General, “You’ve Got a Friend: A Review of Advocacy in Ontario,” Review of Advocacy for Vulnerable Adults (1987) at 3-4 for an explanation of the concept of “social advocacy”.

[159] Frances Cortese, “The Evolution of Psychiatric Advocacy Services, 1972 – 1995,” (1996)  [unpublished] at 85.   

[160] Ernie S. Lightman & Uri Aviram, “Too Much, Too Late: the Advocacy Act in Ontario” (January 2000) 22:1 Law & Pol’y 25 at 25-28.

[161] Ontario Ministry of the Attorney General, “You’ve Got a Friend: A Review of Advocacy in Ontario,” Review of Advocacy for Vulnerable Adults (1987) at 79.

[162] Ernie S. Lightman & Uri Aviram, “Too Much, Too Late: the Advocacy Act in Ontario” (January 2000) 22:1 Law and Pol’y 25 at 25-32.

[163] Provincial Advocate for Children and Youth Act, 2007, S.O. 2007, c. 9.

[164] Advocacy Act, S.O. 1992, c. 26, This Act was repealed on March 29,1996.

[165] One view is that the cause of the demise of the Advocacy Act was not related to the subject-matter in the Act per se.  Rather it was the result of the government’s approach to much of the health, education and social service systems in Ontario at the time.  See Ernie S. Lightman & Uri Aviram, “Too Much, Too Late: the Advocacy Act in Ontario” (January 2000) 22:1 Law & Pol’y 25 at 25-26.

[166] Ontario Ministry of the Attorney General, “You’ve Got a Friend: A Review of Advocacy in Ontario,” Review of Advocacy for Vulnerable Adults (1987). 

[167] The Vulnerable Persons Living with a Mental Disability Act, C.C.S.M. c. V90.

[168] The Vulnerable Persons Living with a Mental Disability Act, C.C.S.M. c. V90, s. 6(1).

[169] This formulation is similar to the definition of capacity in the Northwest Territories’ Guardianship and Trusteeship Act, S.N.W.T., 1994, c. 29, s. 12(1).

[170] See Canadian Association for Community Living, “Policy Statement on Legal Capacity,” (Toronto:  Canadian Association for Community Living, March 2010).

[171] There is precedent for de facto arrangements of this nature in relation to substitute decision making.  See Citizenship and Immigration Canada, “CP 7 Waivers” Citizenship Policy Manual (July 27, 2006), online: Citizenship and Immigration Canada <http://www.cic.gc.ca/english/resources/manuals/cp/cp07-eng.pdf> (last accessed: 20 October 2010).

[172]Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, ss. 21(1), (2); Substitute Decisions Act, 1992, S.O. 1992, c. 30., ss. 66(3), (4).

[173] For example, compare Substitute Decisions Act, 1992, S.O. 1992, c. 30, s. 66(3)1 with s. 66(4b).

[174] Gerard Quinn, “Resisting the “Temptation of Elegance’: Can the Convention on the Rights of Persons with Disabilities Socialise States to Right Behaviour?” in Oddný Mjöll Arnardóttir & Gerard Quinn, eds., The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden, Martinus Nijhof, 2009) 214 at 216.

[175] We are indebted to Diane Richler for her suggestion of the term ‘facilitated’ to describe this decision-making status.

[176] ‘Ulysses Agreements’ are planning documents sometimes used by people with psychosocial disabilities to indicate and instruct what actions and treatments should be taken by designated others when the person has an episodic recurrence of a condition related to their disability, and wishes others to make specific responses.

[177] Health Care Consent Act, 1996, S.O. 1996, c. 2, Schedule A, s. 21(2); Substitute Decisions Act, 1992, S.O. 1992, c. 30., s. 66(4).

[178] Interview of Gábor Gombos and Gerard Quinn by Jarlath Clifford on behalf of ERT, in “Promoting a Paradigm Shift – ERT talks with Gábor Gombos and Gerard Quinn about the UN CRPD on the Rights of Persons with Disabilities and its Optional Protocol” (2008) 2 The Equal Rights Trust, The Equal Rights Review at 85, online: The Equal Rights Trust <http://www.equalrightstrust.org/ertdocumentbank/err_issue02%20reduced.pdf> (last accessed: 7 October 2010).

[179]British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para 22.

[180] New Brunswick Human Rights Commission, “Guidelines on Accommodating Students with a Disability” (15 October 2007) at 9, online: New Brunswick Human Rights Commission <http://www.gnb.ca/hrc-cdp/e/g/Guideline-Accommodating-Students-Disability-New-Brunswick.pdf> (last accessed: 12 October 2010).

[181]Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650.

[182] Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 at para. 121, [2007] 1 S.C.R. 650.

[183]Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504, 2003 SCC 54.

[184] Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54 at para. 81, [2003] 2 S.C.R. 504.

[185] Ontario Human Rights Commission, “Policy and Guidelines on Disability and the Duty to Accommodate” (2000 as revised in 2009) at 18, online:  Ontario Human Rights Commission <http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2/pdf> (last accessed: 12 October 2010).

[186] British Columbia (Ministry of Education) v. Moore, 2010 BCCA 478 at para. 40,  Rowles J.A., dissenting.  Madam Justice Rowles’ dissenting judgment engages in a careful analysis of the approaches to discrimination in human rights statutes as well as the Charter and how these intersect.

[187] Raj Anand & Tiffany Tsun, “The Role of Human Rights Statutes in Advancing Equality” (2009) 25 N.J.C.L. 161.

[188] S. 32(1) of the Canadian Charter of Rights and Freedoms provides that the Charter applies to “the Parliament and government of Canada” and to “the legislature and government of each province.” 

[189] R. Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 387.

[190] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 79; Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed. (Toronto: Irwin Law, 2009) at 346.

[191] Ena Chadha & C. Tess Sheldon, “Promoting Equality: Economic and Social Rights for Persons with Disabilities under Section 15” (2004) 16 N.J.C.L. 27.

[192] Ena Chadha & C. Tess Sheldon, “Promoting Equality: Economic and Social Rights for Persons with Disabilities under Section 15” (2004) 16 N.J.C.L. 27; Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 4th ed. (Toronto: Irwin Law, 2009) at 348. 

[193]Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 169. 

[194] Ena Chadha & C. Tess Sheldon, “Promoting Equality: Economic and Social Rights for Persons with Disabilities under Section 15” (2004) 16 N.J.C.L. 27.

[195]Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 at para. 39, [2000] 1 S.C.R. 703.

[196] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.

[197] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at paras. 80, 94.

[198] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 73.

[199] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 73.

[200] Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657..

[201] Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 at para. 27, [2004] 3 S.C.R. 657.

[202] Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 at para. 47, [2004] 3 S.C.R. 657.

[203]Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para.78.  

[204] Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 23.

[205] Representation Agreement Act, R.S.B.C. 1996, c. 405, ss.12, 20 and 21.

[206] Online: Nidus Personal Planning <http://www.nidus.ca/> (last accessed: 13 October 2010). 

[207] It may be that a Tribunal may only do so in the context of a statutory framework that mandates provision of needed accommodations and supports, and eligibility criteria for this purpose.  For example, the Ontario Social Benefits Tribunal/Social Assistance Review Board hears appeals and makes determinations for those for whom benefits under the provincial Ontario Disability Support Program or Ontario Works Program are refused, denied, canceled or reduced.  In this case benefits and eligibility criteria and the role of the Tribunal are clearly laid out in related statutes.

[208] Tess Sheldon & Ivana Petricone, “Addressing the Capacity of Parties before Ontario’s Administrative Tribunals: Promoting Autonomy and Preserving Fairness”(December, 2009) at  31-32, online: ARCH Disability Law Centre <http://www.archdisabilitylaw.ca/sites/all/files/FINAL%20REPORT%20Capacity%20%20Admin%20-%20November%202009.pdf> (last accessed: 13 October 2010); “Making Ontario’s Courts Fully Accessible to Persons with Disabilities [Report of Courts Disabilities Committee] (December 2006), online: Ontario Courts <http://www.ontariocourts.on.ca/en/accessiblecourts.htm> (last accessed: 13 October 2010). 

[209] See e.g. Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795, File No. 2008-00381-I.

[210] We draw this formulation of the duty of the Tribunal to consider all possible support options prior to making a determination that the person should be placed in a facilitated status from the Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 22(3),  55(2).

[211] Koch (Re), (1997) 33 O.R. (3d) 485 (Gen. Div.).

[212] In Koch (Re), (1997) 33 O.R. (3d) 485 (Gen. Div.) Mr. Justice Quinn said that this requirement is so important that even though a similar requirement does not appear in the Health Care Consent Act, a similar warning must be given under that act.

[213]See e.g. Capacity Assessment Office, Guidelines for Conducting Assessments of Capacity (Toronto: Ministry of the Attorney General of Ontario, 2005) at I.1, online: Ministry of the Attorney General of Ontario <http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-05/guide-0505.pdf> (last accessed: 12 October 2010).

[214] See Claudia Cooper, Amber Selwood & Gill Livingston, “The Prevalence of Elder Abuse and Neglect: A Systematic Review” (2008) 37:2 Age and Aging at 151-160.  The Roeher Institute, Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities (Toronto: Roeher Institute, 1995).

[215] H. Archibald Kaiser, “Canadian Mental Health Law:  The Slow Process of Redirecting the Ship of State” (2009) 17 Health L. J. 139 at para. 28.

[216] Substitute Decisions Act, 1992, S.O. 1992, c. 30.,  s. 27(1).

[217]Substitute Decisions Act, 1992, S.O. 1992, c. 30., s. 62(1).

[218] Mental Health Act, R.S.O. 1990, c. M7, s.15(1).

[219] For the purposes of our proposed definition we do not include the provision in s. 15(1)(c) of Ontario’s Mental Health Act, related to showing “lack of competence to care for himself or herself” as this seems covered by the definition in the Substitute Decisions Act regarding “failure to provide necessities of life”.  As well, we do not include the provisions of ss. 15(1)(c),(d), or (e) as these relate to presumed consequences of having a “mental disorder” and as such the formulation incorporates a starting point that appears discriminatory on the basis of mental disability.

[220] R. Gordon & S. Verdun-Jones, Adult Guardianship Law in Canada (Toronto: Carswell, 1995) at 2-1. 

[221] R. Gordon, “Adult protection legislation in Canada:  Models, issues and problems” (2001) 24 Int’l J.  L. & Psychiatry 117 at 118.

[222] Nova Scotia (Minister of Health) v. J.J., 2005 SCC 12 at para. 23, [2005] 1 S.C.R. 177.

[223] The first of this type of legislation was the Newfoundland Neglected Adults Welfare Act, R.S.N.L. 1990, c. N-3.  British Columbia Law Institute, Canadian Centre for Elder Law Studies, “Law Reform Report on Abuse and Neglect and Capacity Issues in Canada: Canadian Legislation and Juristic Literature” (April 2007) at 1, online: British Columbia Law Institute, Canadian Centre for Elder Law Studies <http://www.bcli.org/sites/default/files/Law_Reform_Report_on_Abuse_and_Neglect_and_Capacity_Issues_in_Canada.pdf> (last accessed: 13 October 2010).

[224] Nova Scotia’s Adult Protection Act, R.S., c. 2.

[225] Yukon’s Decision-Making Support and Protection to Adults Act has been described as “…abuse and neglect legislation which supports an adult’s right to live at risk while capable,”  British Columbia Law Institute, Canadian Centre for Elder Law Studies, “Law Reform Report on Abuse and Neglect and Capacity Issues in Canada: Canadian Legislation and Juristic Literature” (April 2007) at 4, online: British Columbia Law Institute, Canadian Centre for Elder Law Studies <http://www.bcli.org/sites/default/files/Law_Reform_Report_on_Abuse_and_Neglect_and_Capacity_Issues_in_Canada.pdf> (last accessed: 13 October 2010).

[226] British Columbia Law Institute, Canadian Centre for Elder Law Studies, “Law Reform Report on Abuse and Neglect and Capacity Issues in Canada: Canadian Legislation and Juristic Literature” (April 2007) at 7-13, online: British Columbia Law Institute, Canadian Centre for Elder Law Studies <http://www.bcli.org/sites/default/files/Law_Reform_Report_on_Abuse_and_Neglect_and_Capacity_Issues_in_Canada.pdf> (last accessed: 13 October 2010).

[227] British Columbia Law Institute, Canadian Centre for Elder Law Studies, “Law Reform Report on Abuse and Neglect and Capacity Issues in Canada: Canadian Legislation and Juristic Literature” (April 2007) at 11, online: British Columbia Law Institute, Canadian Centre for Elder Law Studies <http://www.bcli.org/sites/default/files/Law_Reform_Report_on_Abuse_and_Neglect_and_Capacity_Issues_in_Canada.pdf> (last accessed: 13 October 2010).

[228] Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 27, 62.

[229] R. Gordon, “Adult Protection Legislation in Canada:  Models, Issues and Problems” (2001) 24 Int’l J. L. & Psychiatry 117 at 127.

[230] Mental Health Act, R.S.O. 1990, c. M.7.

[231] ‘Mental disorder’ is the term used in the Mental Health Act.  It is defined in s. 1(1) as “any disease or disability of the mind” and is used in the involuntary hospitalization sections (ss.15, 20).

[232] Mental Health Act, R.S.O. 1990, c. M.7, ss.15, 20.

[233] These have been referred to as the ‘danger standard’ and the ‘welfare standard’ and have been described as the legal system’s tools to involuntarily commit people who have psychosocial disabilities.  See Katherine Brown & Erin Murphy, “Falling Through the Cracks: The Quebec Mental Health System” (2000) 45 McGill L.J. 1037 at 1037.

[234] Michael Bay, “The Evolution of Mental Health Law in Ontario,” in Mental Health and Patients’ Rights in Ontario: Yesterday, Today and Tomorrow, 20th Anniversary Special Report, Psychiatric Patient Advocate Office (May 2003) 14 at 14.

[235] Michael Bay, “The Evolution of Mental Health Law in Ontario,” in Mental Health and Patients’ Rights in Ontario: Yesterday, Today and Tomorrow, 20th Anniversary Special Report, Psychiatric Patient Advocate Office (May 2003) 14 at 15. 

[236] H. Archibald Kaiser, “Canadian Mental Health Law:  The Slow Process of Redirecting the Ship of State” (2009) 17 Health L. J. 139 at paras. 34-35.

[237] World Network of Users and Survivors of Psychiatry, “Implementation Manual for the United Nations CRPD on the Rights of Persons with Disabilities” (February 2008), online:  World Network of Users and Survivors of Psychiatry <http://wnusp.rafus.dk/documents/WNUSP_CRPD_Manual.pdf> (last accessed: 13 October 2010).

[238] See H. Archibald Kaiser, “Canadian Mental Health Law:  The Slow Process of Redirecting the Ship of State” (2009) 17 Health L. J. 139 at paras. 34-35; where he discusses mental health laws in the context of Articles 3, 8, 12, 14, 17, 19 and 28 of the CRPD.

[239] Peter Bartlett, “Mental Health Law after the CRPD,” in Honouring the Past, Shaping the Future: 25 Years of Progress in Mental Health Advocacy and Rights Protection, 25th Anniversary Report, Psychiatric Patient Advocate Office (May 2008) 217 at 220.

[240] Peter Bartlett, “Mental Health Law after the CRPD,” in Honouring the Past, Shaping the Future: 25 Years of Progress in Mental Health Advocacy and Rights Protection, 25th Anniversary Report, Psychiatric Patient Advocate Office (May 2008) 217 at 220.

[241] World Network of Users and Survivors of Psychiatry, “Implementation Manual for the United Nations CRPD on the Rights of Persons with Disabilities” (February 2008) at 3, online:  World Network of Users and Survivors of Psychiatry <http://wnusp.rafus.dk/documents/WNUSP_CRPD_Manual.pdf>  (last accessed: 13 October 2010).

[242]John Dawson & George Szmukler, “Fusion of Mental Health and Incapacity Legislation” (2006) 188 British Journal of Psychiatry 504; Katherine Brown & Erin Murphy, “Falling Through the Cracks: The Quebec Mental Health System,” 45 McGill L.J. 1037; Peter Bartlett, “Mental Health Law after the CRPD,” in Honouring the Past, Shaping the Future: 25 Years of Progress in Mental Health Advocacy and Rights Protection, 25th Anniversary Report, Psychiatric Patient Advocate Office (May 2008) 217 at 220.

[243] H. Archibald Kaiser, “Canadian Mental Health Law:  The Slow Process of Redirecting the Ship of State” (2009) 17 Health L. J. 139; Peter Carver, “Mental Health Law in Canada” in Jocelyn Downie, Timothy Caulfield & Colleen Flood, eds., Canadian Health Law and Policy, 3d ed. (Markham, On: Lexis Nexis, 2007) 399.

[244] Authority for this inquiry would be similar in some respects to the current powers of the Ontario Public Guardian and Trustee (OPGT) to investigate allegations of serious adverse effects where there are claims that a person is “mentally incapable.” However, the current powers of the OPGT focus on making a determination of mental incapacity.  While such powers may be based on a presumption of capacity, they do not provide for consideration of what decision-making supports a person may require in order to exercise legal capacity – either independently or via a supported decision-making status.

[245] While there may be rationale to first determine whether or not the individual is acting legally independently, on the basis that the investigation into serious adverse effects may violate privacy and autonomy rights of legally independent persons, the two inquiries are fundamentally inter-related.  The Office cannot inquire into whether a person is legally independent with respect to a particular situation – that is, he/she meets the understand and appreciate test – without some knowledge of what it is in the situation that is to be understood and appreciated.

[246] The interface between independent authorities like the proposed Legal Capacity and Support Office and the Administrative Tribunal, and criminal law, requires further investigation in the Canadian context.  There do appear to be precedents in other jurisdictions.  For example, an administrative body, the ‘Settlement Agents Supervisory Board’ of Western Australia, responsible for regulating the activities of licensed settlement agents or conveyancers has powers to consider referring matters to the police for investigation when it has evidence of criminal conduct of settlement agents.  A fuller review would examine this and other examples in Canadian and international jurisdictions.  See Government of Western Australia, A guide to investigations and disciplinary proceedings under the Settlement Agents Act 1981 (Perth: Settlement Agents Supervisory Board).

[247] We draw this formulation of the duty of the Tribunal to consider all possible support options prior to making a determination that the person should be placed in a facilitated status from the Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 22(3), 55(2).

[248] Koch (Re), (1997) 33 O.R. (3d) 485 (Gen. Div.).

[249] In Koch (Re), (1997) 33 O.R. (3d) 485 (Gen. Div.) Mr. Justice Quinn said that this requirement is so important that even though a similar requirement does not appear in the Health Care Consent Act, a similar warning must be given under that act.

[250] See e.g. Capacity Assessment Office, Guidelines for Conducting Assessments of Capacity (Toronto: Ministry of the Attorney General of Ontario, 2005) at I.1, online: Ministry of the Attorney General of Ontario <http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-05/guide-0505.pdf> (last accessed: 12 October 2010).

 

 

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