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 interdependence with others.  Increasingly, the question is:  how are the principles of autonomy and legal independence to be realized in legal and institutional terms in order to enable and support people to guide their own lives, make their own decisions, and challenge others who would diminish or remove their autonomy?

There has also been a growing recognition by the Supreme Court of Canada and legal writers shifting the focus from diminishing decision-making rights to maximizing autonomy.  The emergence of the human rights movement following World War II and the enactment of the Canadian Charter of Rights and Freedoms (“Charter”) in 1982 raised the importance of the values of liberty, autonomy and freedom from unnecessary intervention.

Weisstub’s 1990 report on mental competency urges that priority be given to Charter rights.[116]  The Fram report, which was delivered over 20 years ago by the Advisory Committee on Substitute Decision-Making for Mentally Incapable Persons, too emphasized this by stating that “[t]he Canadian Charter of Rights and Freedoms, as a constitutional document, is part of the fundamental law of Canada.  As a result, consideration of the values given expression in the Charter must inform any review of the law relating to substitute decision making.”[117]

Personal autonomy to make inherently private choices goes to the very core of the liberty interest protected under section 7 of the Charter.  Further, section 15, the equality provision, mandates the promotion of a society in which all persons enjoy equal recognition at law.  In this context, the Supreme Court of Canada has stated that “[h]uman dignity … is enhanced when laws recognize the full place of all individuals and groups within Canadian society.”[118]  The Court stated that the Charter’s guarantee of equality “… is concerned with the realization of personal autonomy and self-determination.  Human dignity means that an individual or group feels self-respect and self-worth.”[119]   

In relation to legal capacity, the Supreme Court of Canada has clearly and explicitly recognized the autonomy interest of people with disabilities in its statement that “[u]nwarranted findings of incapacity severely infringe upon a person’s right to self-determination”.[120]  The Court also recently advanced the value to be placed in autonomous decision-making in relation to incapable people in Nova Scotia (Minister of Health) v. J.J.[121]

Early legal recognition of interdependent decision-making and supports is apparent in the following two significant cases:

·     In the 1983 decision of Clark v. Clark[122] Mr. Justice Matheson concluded that Justin Clark was “mentally competent” and that, notwithstanding his inability to speak and his intellectual disability, he was effectively able to communicate his wishes through the use of Blissymbols.[123]

·     Mr. Justice Quinn in Re Koch[124] also recognized the role of supports when he said that “[i]t is to be remembered that mental capacity exists if the appellant is able to carry out her decisions with the help of others.”[125]

A recent decision of the Human Rights Tribunal of Ontario[126] also acknowledged the role of supports.  The case dealt with a labour strike in a group home which provides support services for people with intellectual disabilities.  Employees who worked at the group home engaged in a legal strike and picketed the home.  Ms. Kacan alleged that the picketing discriminated against her on the basis of disability.  The issue in this interim decision focused solely on issues surrounding the [mental] capacity of Ms. Kacan in relation to bringing the human rights application.  The decision confirmed that a friend could assist a person with a disability to launch a human rights complaint.   The Tribunal’s decision affirmed the significance of promoting the autonomy and dignity of people with disabilities, even where supports were required to exercise such autonomy.[127]

According needed support to make decisions is at the heart of exercising one’s right to autonomy, and the right to be recognized by law as citizens with rights to fully participate in society.[128]  Recent legislative developments have incorporated such approaches which are more consistent with maximizing autonomy interests.  These can be classified into two forms:  supported decision-making and co-decision-making.

As we referenced in the introduction and discuss in more detail below, ‘supported decision-making’ enables a person to make his/her own decisions with the help of others.  British Columbia’s Representation Agreement Act has been hailed by the disability community as highly successful legislative recognition of supported decision-making.  It allows for the creation of personal planning tools which enable adults to appoint someone “to help the adult make decisions or to make decisions on behalf of the adult.”[129]  These planning tools, known as representation agreements, are progressive in that, unlike most personal planning tools, they allow for the appointment of individual(s) to help an adult make decisions.[130] The British Columbia model is also notable for its more flexible approach to defining incapability.  It recognizes shades of grey and establishes four factors to be taken into account, one of which recognizes the defining feature of support relationships, being one of trust. [131] 

Other Canadian jurisdictions, too, specifically recognize supported decision-making in their legislation.  Manitoba, the Yukon Territories and Alberta legislation, with differences, recognize supported decision-making.[132] 

Ontario’s Substitute Decisions Act does not specifically recognize supported decision-making per se, but does provide for consideration of the role of supports.  One provision of the Substitute Decisions Act[133] relating to court-ordered guardianship is designed to promote autonomy.  The language (in ss. 22(3) and 55(2)) is as follows:

The court shall not appoint a guardian if it is satisfied that the need for decisions to be made will be met by an alternative course of action that,

            (a)        does not require the court to find the person to be incapable


            (b)        is less restrictive of the person’s decision-making rights than the appointment of a guardian.[134]

In Gray v. Ontario,[135] a case that addressed closures of institutions for people with “developmental disabilities” in Ontario, an issue arose as to whether there was a requirement to obtain consent of the resident or “his or her next of kin or substitute decision maker” to the community placement selected for him/her.  Mr. Justice Hackland of the Ontario Divisional Court concluded what appeared to be obvious:  the consent of the person with the disability or his/her substitute decision-maker is required to any choice of community residential placement.[136]   In addressing this issue, he highlighted the above provision as being particularly significant in that the section contemplates that where alternatives to appointing a guardian (which requires a finding of incapacity) will allow for decisions to be made, this is preferred to a guardianship order.[137]   He went on to interpret the above provision in relation to supported decision-making as follows:

The Ministry’s current process has not required the appointment of a guardian in support of the “supported decision making” process, which in many cases will be consistent with the words and the intention of section 55(2) of the Act.  As argued by counsel for the Intervenor, Community Living Ontario, a process short of full or partial guardianship is preferable in many cases, as it best recognizes the autonomy and dignity of the individual and the inclusiveness of the decision-making process.[138]  

There are additional provisions in the Substitute Decisions Act that recognize a role for “supportive family members and friends.”  Guardians and attorneys (named in a power of attorney) are required to foster regular personal contact and consult with supportive family members and friends.[139]  However, decisions are still made by the guardian or attorney, as the case may be.  Thus, while these provisions encourage involvement of family members and friends, the involvement specified by the legislation does not promote the individual’s ability to make his/her own decisions.  This is so despite s. 66(8) which requires guardians and attorneys of the person to foster the person’s independence as far as possible.

Co-decision-making is similar to supported decision-making in that an individual is legally recognized to assist someone with capacity issues to make his/her own decisions.  The fundamental difference between these two approaches in current legislation is the manner in which the supporter is created.  With co-decision-making the supporter is not chosen by the person whose capacity is in issue.  Rather, the supporter is appointed by a court, and it is the court that decides that a supporter is necessary to assist with decision-making.  While it is a less intrusive alternative to substitute decision-making, full choice is not respected: supports are not chosen, but imposed by courts.  It is less desirable than supported decision-making because it does not as fully respect autonomy.

Saskatchewan’s Adult Guardianship and Co-decision-making Act[140] incorporates the co-decision-making mechanism.  It sets out procedures for the court appointment of either guardians for people who are incapable, or co-decision-makers for adults who need assistance in making decisions, but who do not require guardians.  It is the court’s determination as to whether a guardian or co-decision-maker is appointed.  The court, too, decides who will be appointed to play these roles.  A form of co-decision-making is also recognized in Quebec and Alberta.[141]

While supported decision-making and co-decision-making are each given some status in Canadian laws, substitute decision-making regimes, both in the form of guardianship and planning documents, have been most widely used and developed across all jurisdictions in Canada.  Supported and co-decision-making have been introduced only relatively recently and are limited in their application.  For example, Manitoba’s recognition of supported decision-making in the Vulnerable Persons Living with a Mental Disability Act applies only to people with intellectual disabilities, British Columbia’s Representation Agreement Act only allows for supported decision-making arrangements with respect to some aspects of property management, and Alberta’s Adult Guardianship and Trusteeship Act’s provisions for supported and co decision-making apply only to personal and not property decisions.

These legislative developments are welcome in that they mark the beginning of a shift in the conceptualization of the state’s legitimate role and positive obligation in decision-making interventions.  Rather than understanding the primary role of state intervention as managing the boundary between those deemed legally capable and incapable and providing procedures for removing an individual’s right to make decisions for themselves, the state’s primary role should be viewed as supporting an individual’s capacity to make his/her own decisions. [142]  This approach is consistent with a more inclusive understanding of autonomy and dignity than an exclusively negative approach to liberty would allow.[143]  Even in jurisdictions which do not provide a legislative mandate for supports in decision making, the clear direction from Canadian courts provides a substantial foundation for the recognition of supports to exercise legal capacity.  In what follows in Part Two of this paper, we lay out framework for fully recognizing the place of supports and accommodations in this regard.

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