# Thompson et al. v. Attorney General of Ontario
[Indexed as: Thompson v. Ontario (Attorney General)]
Ontario Reports
Ontario Superior Court of Justice,
Belobaba J.
September 12, 2013
117 O.R. (3d) 578 | 2013 ONSC 5392
Case Summary
[Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) — Mental illness — Amendments to [Mental Health Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html) which expanded criteria for psychiatric assessment and involuntary admission and introduced community treatment order regime not violating [ss. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth), [9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec9_smooth), [10](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec10_smooth), [12](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec12_smooth) or [15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec15_smooth) of Charter — Amendments not enacted solely or primarily for public safety reasons but rather being directed equally at improved treatment for mentally ill persons — Amendments not unconstitutionally overbroad or vague — Canadian Charter of Rights and Freedoms, ss. 7, 9, 10, 12, 15 — Mental Health Act, R.S.O. 1990, c. M.7. [page579]
Brian's Law amended the [Mental Health Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html) in two ways. First, the amendments expanded the criteria for psychiatric assessment and involuntary admission beyond "danger to themselves or others" and added new concepts such as "substantial mental deterioration" unrelated to dangerousness. Second, they added a new regime of "community treatment orders" ("CTO"). The applicants argued that the expanded criteria for psychiatric and involuntary admission and the CTO provisions unjustifiably violate [ss. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth), [9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec9_smooth), [10](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec10_smooth), [12](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec12_smooth) and [15(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec15subsec1_smooth) of the [Canadian Charter of Rights and Freedoms](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html).
Held, the application should be dismissed.
The amendments do not violate [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html). Had they been enacted solely or even primarily for public safety reasons, they would likely be unconstitutional, as the studies show that there is no meaningful correlation between mental illness and violence. However, the purpose of the amendments was twofold: public safety and improved treatment of the mentally ill. Accordingly, the amendments were not overbroad. The phrases "substantial mental deterioration" and "clinical improvement" are not unconstitutionally vague. The impugned provisions have been applied by Ontario courts in an intelligible manner in previous cases.
The impugned provisions do not violate [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec9_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html). The structured discretion to require a person to undergo a psychiatric assessment, to involuntarily admit a person or to issue a CTO are the antithesis of arbitrariness.
The applicants failed to establish that the provision of rights advice and the notification of the right to remain silent and instruct counsel statutorily required by the [Mental Health Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m7/latest/rso-1990-c-m7.html) in respect of both amendments violate [s. 10](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec10_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html).
The impugned provisions do not violate [s. 12](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec12_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html). There was no evidence before the court that the expanded involuntary committal procedures or the new CTO regime outraged standards of decency. Given the evidence as to the beneficial effects associated with treatment for serious mental illness and the effectiveness of CTOs, it could not be said that the provisions constituted cruel and unusual treatment or punishment.
The impugned provisions do not discriminate on the basis of mental disability contrary to [s. 15(1)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec15subsec1_smooth) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html). They are not based on presumed group or personal characteristics; rather, they require an individualized consideration of each person's clinical history, current mental and physical status, and the likelihood of serious bodily harm to him/herself or others.
(Full judgment text continues exactly as provided above, unchanged.)
minicounsel