There has been a long-standing dichotomy of opinions in relation to legal capacity laws which pit paternalism against autonomy.  The debate continues and was reflected in the recent international deliberations relating to the article on legal capacity in the CRPD.[87]  

The tradition of legal capacity-related laws that restricts people’s right to autonomy was founded on the attitude that there is a need to act for the protection of those who are believed not to be able to care for themselves.  It was to be exercised in a manner said to promote the “best interest” of the protected person.[88]  The underlying assumption being that the individual’s personal and economic affairs could be better managed by others.[89]  However, Canadian laws have progressed substantially in the direction of promoting autonomy.  There has been increasing recognition by the Supreme Court of Canada and legal writers that respect should be given to the human rights and autonomy interests of people with disabilities.

In this section we outline the trajectory from traditional capacity laws in Canada which define an ‘all or nothing’ legally capable/incapable boundary, to more recent legislation and jurisprudence which articulates an expanded range of decision-making statuses through which people can exercise their legal capacity.  

While our laws encourage autonomous decision-making, for the most part they create a wall around a group of people whose rights to decide for themselves are removed.  This is so because Canadian laws have generally required, as a precondition of engaging in most activities, that an individual possess a requisite level of mental capacity or decision-making ability.  When the required level of decision-making ability is absent, the law requires that a substitute decision-maker make decisions in his/her stead.


A.        Substitute Decision-making Laws

Legislation in Canada which addresses legal capacity most directly covers guardianship,[90]  planning documents such as powers of attorney, consent to health care and admission to care facilities, and adult protection.  These laws require that people be [mentally] ‘capable’ to make decisions about their property and personal care, including health care and long-term care residency.  Overlaying these are more specific laws: for example, entering into a contract,[91] making a will,[92] acting as a director of a corporation[93] and giving evidence in court[94] each require a person to have a requisite level of mental capacity to do so.  There are several additional laws in which legal capacity is addressed but is not the primary subject-matter of the legislation.  Rather, provisions are included in laws to cover off situations in which a person’s assessed [mental] incapacity would expose a gap in the legal framework or otherwise affect its functioning.  For example, the Canada Pension Plan (CPP) contains a provision allowing for payments to be made to another person or agency when the Minister is satisfied that the CPP recipient is “[mentally] incapable of managing his own affairs”.[95]

Substitute decision-making laws most directly govern situations where people are found [mentally] incapable.  These laws are common to all jurisdictions in Canada.  For example, Ontario’s Substitute Decisions[96] Act focuses on substitute decision-making, which involves decisions being made by one person on behalf of another, who is usually determined to be [mentally] incapable of making his/her own decisions.  It usually takes one of two forms:  guardianship, in which an order (usually by a court) is made appointing a substitute decision-maker, and planning documents, in which a person chooses, in advance of [mental] incapacity, who he/she wishes to make decisions on his/her behalf.  

Taken together, it is hard to envision any significant area of life that one can engage in freely without potential interference on the basis of so-called [mental] ‘incapacity’.  Some of these restrictions may seem reasonable, while others raise questions.  But that civil, political and equality rights can be sweepingly restricted in so many fundamental aspects of people’s lives speaks volumes about the status and recognition of people with intellectual, cognitive and psychosocial disabilities in Canadian society.


B.       Test of Mental Capacity as a Basis for Legal Capacity:  The ‘Understand and Appreciate’ Test 

The way in which the law defines mental capacity shapes the nature and extent of its interference with people’s lives, as it is the ascription of mental (in)capacity that determines one’s right to make decisions.  It is thus essential to explore the meaning our laws attribute to legal capacity.

There is no single, uniform test or definition for legal capacity in Canadian law.[97]  Yet, laws recognize some fundamental realities.  The test for legal capacity is described as a cognitive one;[98] hence the focus on mental capacity as a condition for exercising legal capacity.   [Mental] capacity is not considered from a global standpoint in that it is recognized that people may have abilities to make some types of decisions on their own and not others.  For example, an individual may be able to understand medical information enough to decide to take a medicine for his/her cold, but not be able to understand information to decide whether to have a transplant.  Additionally, an individual’s level of decision-making ability may fluctuate over time.  Someone who has dementia may have days when he/she is thinking particularly clearly and other days when he/she has a difficult time understanding even basic concepts.

As the test for [mental] capacity or decision-making ability differs depending on the relevant transaction, so too does the required level of [mental] capacity or ability:   “[a] person can be [mentally] capable of making a basic decision and not [mentally] capable of making a complex decision.”[99]    In Calvert (Litigation Guardian of) v. Calvert,[100] Mr. Justice Benotto concluded that while Mrs. Calvert “…may have lacked the ability to instruct counsel, that did not mean that she could not make the basic personal decision to separate and divorce.”  Thus, a person with an intellectual disability may be able to know that she is unhappy where she lives and know that she wants to move to the residence where her friends live and which is near her family.  She likely has the decision-making ability to make this decision independently.  At the same time, she may not understand information in relation to a decision to purchase a house and may need support and certain accommodations to do so.

Despite the different tests for [mental] capacity, there are similarities between many of them in that they incorporate two basic requirements: the ability to understand relevant information and the ability to appreciate reasonably foreseeable consequences.[101]   This test is incorporated in several pieces of legislation in Canada, including Ontario’s Substitute Decisions Act[102] and Health Care Consent Act,[103] Saskatchewan’s Adult Guardianship and Co-decision-making Act[104]  and Manitoba’s The Vulnerable Persons Living with a Mental Disability Act.[105]   Nonetheless, while this definition is common, it is not the only one that exists in Canada.[106]  

Courts emphasize that an assessment of [mental] capacity is based not on the content of the decision ultimately made, but rather on the process for arriving at that decision.  The fact that an individual makes a decision that others perceive as foolish, socially deviant  or risky does not indicate that the decision was incompetently made.  As Mr. Justice Quinn stated: “The right to be foolish is an incident of living in a free and democratic society.”[107]   He added that “[t]he right knowingly to be foolish is not unimportant; the right to voluntarily assume risks is to be respected.  The State has no business meddling with either.  The dignity of the individual is at stake.”[108]  

Assessing an individual’s understanding is not an assessment of that person’s prior knowledge.  The question is the extent to which the person can retain, interpret and manipulate information once it is provided to him or her.  For example, in Ontario, in order to make a power of attorney, there is a requirement that the person understand what a power of attorney is.[109]   Many people, including but certainly not limited to people with intellectual disabilities, at the outset do not know what a power of attorney is.  In order to assess a person’s [mental] capacity to make a power of attorney, he/she must first be given all relevant information about the nature and effect of such powers.  There is an important role to play for supports at this stage of the assessment.  For example, people in an individual’s support network likely are much more effective at communicating with that person than anyone else.  Not only are they able to understand that person’s method of communication, but they know how to communicate with that person in words and style that he/she understands.  It is likely that involving support people will enhance a person’s ability to exercise their legal capacity by giving them the best chance possible to learn the information they need to know to satisfy the legal test of [mental] capacity.


C.       Legal Recognition of Autonomy Interests, Interdependence and a Range of Decision-making Statuses

Presuming all people to be mentally or ‘decisionally’ capable is a crucial feature in the promotion of autonomy.  Over 15 years ago Ontario’s Court of Appeal articulated a common law presumption of [mental] capacity requisite to exercise legal capacity.[110]  Additionally, there are presumptions of requisite [mental] capacity in Ontario legislation which relate to specific interactions, such as legal capacity to enter a contract,[111] legal capacity to give or refuse consent in relation to personal care[112] and legal capacity with respect to treatment.[113]  Laws in other Canadian provinces also contain presumptions of [mental] capacity.[114]   These provisions are consistent with trends in modern legislation around the world “… to enshrine a powerful presumption of [mental] capacity.”[115]

While capacity-related law has focused on protecting autonomy by defining and managing criteria of incapacity and incompetency, the political and legal discourse of women’s and disability rights increasingly focuses on defining how to maximize autonomy, often through what we characterize as an approach that recognizes and foregrounds relationships and inte