Forced Treatment And The Charter

 

A government can detain someone for mental health reasons, but can it also force treatment without first asking a harder question: are they actually capable of deciding for themselves? We walk through a major British Columbia decision on involuntary treatment under the Mental Health Act, where the court finds a section 7 Charter breach because director-approved treatment can override a patient’s wishes without a meaningful capacity process. Along the way, we unpack why consent, bodily autonomy, and dignity are not optional extras in Canadian health law, even when the patient is involuntarily hospitalized.

We also dig into what changed midstream, including the repeal of “deemed consent”, and why that still didn’t fix the underlying problem. BC stands out compared with other provinces that use capacity assessments, advance directives, representation agreements, or substitute decision-makers to navigate informed consent and psychiatric care. The court suspends its ruling for six months, putting pressure on the province to amend the legislation or consider an appeal, while leaving the policy design to elected lawmakers.

Then we pivot to a Supreme Court of Canada ruling with national impact: Parliament cannot legislatively prevent judicial review of administrative decisions. Using the WE Charity conflict of interest complaint and Democracy Watch’s challenge as the backdrop, we explain how the rule of law and section 96 of the Constitution Act protect the superior courts’ core role in reviewing whether government power is exercised lawfully and reasonably. If you care about mental health rights, government accountability, and the real meaning of the rule of law in Canada, this one connects the dots. Subscribe, share the episode, and leave a review, then tell us: where should courts draw the line on state power?

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 12:30 p.m. It’s also available on Apple Podcasts or wherever you get your podcasts.

 

Legally Speaking Aug 6 2026

Adam Stirling [00:00:00] Time for our regular segment. Joined as always by Barrister and Solicitor with Mulligan Defence Lawyers, it’s Legally Speaking on CFaAX1070 with Michael Mulligan. Afternoon Michael, how are we doing?

Michael T. Mulligan [00:00:10] , good afternoon. I’m doing great, always good to be here.

Adam Stirling [00:00:12] Interesting topics on the agenda for this week, including you and I have talked about at great length involuntary mental health care and a recent court decision that impacts what rights a person who is being subjected to involuntary care does and does not have in terms of determining the course of their treatment.

Michael T. Mulligan [00:00:31] Yeah, this is a very interesting and significant decision and it comes from a challenge brought by a group called the Council for Canadians with Disabilities and it was a constitutional challenge to the process we have in British Columbia to make treatment decisions about administering treatment to somebody who is an involuntary patient under the Mental Health Act. And the particular challenge was brought on the basis of an alleged breach of Section 7, which is the right to life, liberty, and security of the person. And of interest, the challenge brought was not a challenge to the process whereby a person can become an involuntary patient in a mental health facility. And broadly speaking, as we’ve talked about before, there’s authority under the Mental Health Act to have somebody involuntarily admitted and to become a patient if they’re a person with a mental disorder and this is simplifying it a bit, but are a danger to themselves or others, right? There’s a bit more flowery language around that, but that’s really what it amounts to. And there’s a process in the Mental Health Act that involves various sorts of assessments and reviews to determine whether you are that sort of a person who can be involuntarily admitted. Now, that was not Challenged in this piece of litigation. What was challenged was the process that’s in place to then impose involuntary treatment on somebody who has been involuntarily admitted. And that’s what was challenged. And as the judge pointed out, and this is quite a decision, It’s hundreds of pages. It is the case that the idea that a person has autonomy over their own body and is able to freely determine whether they wish medical treatment is something that is pretty deeply rooted in our common law. And that’s true, right? I think most people would sort of instinctively realize that so, your ability to say, yeah, I want that treatment surgery or whatever it might be. And your ability to see, I don’t want that or stop treating me is pretty integral to a person’s autonomy and dignity and so on. and so that’s the starting point that the judge applied when analyzing the constitutionality of how that system worked in BC. When this legislation started and right up to just before the submissions were being done in this very long complicated trial.

Adam Stirling [00:03:09] mm hmm.

Michael T. Mulligan [00:03:10] There was a change in the legislation, which is really interesting the way it worked all the way up to right at the end of this trial, and you have to wonder whether the change might have been perhaps prompted by the trial itself. That’s not an unknown state of affairs. is that when a person became an involuntary patient, The, through that process of determining that there are risks to themselves or others. The legislation then essentially deemed them to have consented to whatever medical treatment the doctors were wanting to impose. Now that’s pretty broad and some of the treatment that can be imposed on somebody under the Mental Health Act can have pretty significant implications, like you know medications that have side effects we even do things like you know shock treatments are.

Adam Stirling [00:04:02] Yeah.

Michael T. Mulligan [00:04:03] Administered to some patients you know they can have impacts on a person’s you know memory and all kinds of things right and so. Those are pretty intrusive treatments sometimes that are imposed. Now, there are some cases where you would have a person who would be incapable of determining whether they can consent or not, but the fact that you have a mental disorder and indeed the fact that for example there’s a determination that you might be a risk to yourself, doesn’t necessarily mean that you are incapable of making decisions about the treatment you’re going to receive. You know, a person could, you know, have a mental health condition, which is coming and going for example.

Adam Stirling [00:04:44] mm hmm.

Michael T. Mulligan [00:04:44] And they could be at some point in the position where they might be able to make a rational choice about, hey, I don’t want that medication. It has these terrible side effects, or I don’t want the shock treatment or, you know I want to have this medication or that medication or whatever. And the way this legislation worked is they, it was just too bad. They just do what they want to you once you’re admitted as an involuntary patient. That provision the government repealed right as this thing was being argued, section 31 of the Mental Health Act, they repealed it in the last days of the trial. And so you might think, well, surely that’s it then. Where does that leave us? But that’s not the end of it because there’s another section of the act that remains and it’s the section that’s being relied upon now. And it’s a section that allows a director to authorize treatments that the person doesn’t want. And you know there’s, there’s a scheme those people are to consider when determining whether to approve something but that doesn’t involve the person it involves sort of You know decision made by  another individual.

Adam Stirling [00:05:54] Yeah.

Michael T. Mulligan [00:05:55] Now That part of the challenge continued and it succeeded and it succeeded on the basis that first of all, they found that this was a breach of section 7, allowing, you know, this director to approve treatments, you know, contrary to a patient’s wishes without any meaningful process to determine whether they are somebody who’s capable of making those decisions themselves, or you can have other circumstances. Like, for example, a person could in advance, you know, when they’re in a position where they could do those things, express their issues. That’s, that’s not uncommon, right? A person can express the desire for, you know, medical treatment at a point in time in their life when they’re competent and capable of making those decisions, you don’t turn to what they do and do not want. Or for example, you could designate somebody else, like a family member or a friend or somebody else, to make those decisions for you. And the scheme of having this director make the decisions just bypassed all of that. And of interest, as the judge pointed out, BC is an outlier. Every other jurisdiction in Canada has a process in place whereby there would be a separate determination about whether the person is competent or capable of making treatment decisions and whatever variety of different approaches in terms of those other kinds of things like the advance direction or family member deciding those things trusted person for you. And BC had none of that. And so the judge found and I should say the government argued. That, yes, if this is a breach, it’s justified under Section 1 of the Charter. That’s that one about, you know, reasonable limits and so on.

Adam Stirling [00:07:31] mm hmm.

Michael T. Mulligan [00:07:31] But when analyzing a Section 1 argument, saying, hey, if we breach this, this was sort of an acceptable limit in a free and democratic society, one of the parts of that test is whether it’s kind of like the least intrusive way you could do that, right.

Adam Stirling [00:07:43] Yeah.

Michael T. Mulligan [00:07:44] And so even though the judge agreed that, yeah, there’s a pressing and substantial need to provide treatment to people who may not, you may be a danger to themselves for others. May or may not be in a position to determine those things themselves, that the approach of just saying, sorry, the director is going to decide, isn’t the minimally intrusive way to do that. And so the judge found that Section 1 was not sufficient to save these provisions in British Columbia, and so found that those, the remaining provisions, the impugned regions of Section 8 have been found to be unconstitutional. And of no force in effect. Now, the judge has given the province six months to decide what to do with that, has suspended the implementation of this decision for that period of time. And as the judge correctly pointed out, it’s not the court’s task to try to make some of those nuanced public policy decisions about what’s the best or most effective or most just appropriate way of determining how involuntary medical treatment ought to be provided. There are lots of likely constitutionally permissible ways you could accomplish that. You know, do you want to have some process that the person could appeal at or some process to determine capacity or, you know, the government might choose to have process whereby, you know if there is something like the representation agreement in place already or prior authorization for some treatment but not others that those things ought to take into account or that’s how it should be sorted out. And so even though this is a very detailed assessment of what was going on and whether the current scheme of just allowing the director to decide these things, that’s been found to be unconstitutional. But the judge thinks quite properly, didn’t try to figure out what should replace it other than to say it’s got to be replaced. You can’t just have a blanket process, even though they got rid of that deemed consent to everything. That isn’t, that doesn’t answer what would be permissible. And so it’s now over to the government to decide what to do with that. And so, it will be very interesting to see what comes of this. One approach the government could take is to say, take this all to heart, say, yeah, okay, we’ve had this 34-day trial with 14 experts and 22 expert reports and hundreds of pages of analysis of it. And yeah, you’re right, we should probably get this thing into this century. That could be an approach. Or another approach could be that they choose to appeal it and then that may happen as well as the judge pointed out there is sort of pretty sort of extreme claims made by Counsel in terms of how the wheels would come off the bus if this was found to be unconstitutional, although apparently every other province has figured out a way to make it work in a constitutionally compliant fashion.

Adam Stirling [00:10:42] hmm.

Michael T. Mulligan [00:10:42] But the other approach could be an appeal of it. And so we’ll have to wait and see. They’ve got the order of 30 days to appeal the decision, and the judge has given them six months. And so what will happen now is the province will need to figure out, are they going to amend the legislation to address those concerns and come up with a meaningful process to separately determine capacity to make the treatment decisions separate from should you be admitted. It doesn’t get you out of the hospital it just means you know they can’t force the shock treatment on you without some process in place to determine whether you’re competent to decide whether that’s something you want done to yourself or some other process in place like the ones we talked about. Family member you know, prior indication of what treatment is you wish. Or whether they wish to challenge this and try to maintain a system where a government person, a director, could authorize treatment despite the patient’s wishes and despite any of those other things that the person might do to have somebody make that decision for them. And so that’s latest out of the BC Court of Appeal on how we’re going to deal with involuntary treatment of people who are admitted for mental health issues into hospitals in British Columbia.

Adam Stirling [00:12:00] Michael Mulligan with Mulligan Defence Lawyers. Legally Speaking, we’ll continue right after this.

[00:12:05] COMMERCIAL.

Adam Stirling [00:12:05] Michael, up next on our agenda, Supreme Court of Canada says fines that the government cannot legislatively prevent judicial review on administrative decisions. What happened?

Michael T. Mulligan [00:12:15] It’s an important decision, I should say. And the origin of this thing came out of the, some keen, keen listeners may recall a number of years ago now, there was an issue about then Prime Minister Trudeau involving himself in funding decisions for a charity that he was involved in called the WE Charity. W-E are both capitalized presumably. The WE Charity and there was a review of his participation in these funding decisions given his involvement with the charity itself. Under the Conflict of Interest Act, and that act provides for a commissioner to do an assessment as to whether there was a conflict of interest in a decision like that. And the conflict of interest’ commissioner determined that it was fine. There wasn’t a conflict. That was the conclusion. That conclusion was challenged by a group called Democracy Watch. And they were given public interest standing and they challenged That finding of the commissioner. Now the government interestingly relied on a section of that Conflict of Interest Act, which limits the capacity to  have a judicial review of factual and legal findings under that Legislation section 66, purported to do that. Relying upon that section of the Conflict of Interest Act, the Court and then the Federal Court of Appeal found that they didn’t have jurisdiction to conduct a judicial review into the decision of the Commissioner about whether the Prime Minister was in a conflict. And they suggested that the political process would be a potentially satisfactory way for the public to respond to their views of his involvement in making that decision. And so that’s the factual matrix that went off to the Supreme Court of Canada. And as the Supreme Court of Canada pointed out right at the outset of their decision, appropriately. Is that the rule of law is a fundamental part of our constitutional structure. And one of the components of the rule of law, is to ensure that when public power is being exercised, it needs to be possible to determine whether it’s being done legally. Otherwise, what does the rule of law really mean, right? And if you could just insert into a piece of legislation, a provision that says, you can’t challenge this by way of judicial review. You would then live in a topsy-turvy world where you could have government officials making decisions about things and there would be no way to go to court and determine whether what they were doing was legal or not. And so the way the court approached this is under is a consideration of section 96 of the Constitution Act. And section 96, when you just read it, you say, well, what does this say? It says this, Section 96. “The governor general shall appoint the judges of the superior district and county courts of each province, except those in the court of probate in Nova Scotia, New Brunswick.” What does that mean? It’s kind of gobbledygook, but it talks about the appointment process. And then there’s another section that deals with the protections for those kinds of judges. Like they can’t just be fired. The government doesn’t like them. There’s a process. We’ve got to have a resolution of the House of Commons and Senate to remove a judge for cause.

Adam Stirling [00:15:46] Yeah.

Michael T. Mulligan [00:15:47] And that section, those sections would be pretty meaningless if you could just take away all the powers of Superior Court judges or assign all the powers to the, you know, Prime Minister’s aid or something to make those decisions. And so courts over the years found that those sections to be meaningful, and they are meaningful because you have a Superior Court with judges that can’t just be fired when the government doesn’t like what they’re doing, for example. And you also can’t have a circumstance where the government could just transfer all the powers to somebody else and then have none of those people. For example, that would also be a way to circumvent having an independent judiciary. And so the courts have over the years interpreted those sections to say, well, you can’t take away the fundamental powers of those judges. Otherwise, the section is meaningless if you could then just have a bunch of, you know, political appointees deciding all the things that the Supreme Court judges used to decide. And so, what the Supreme Court of Canada was dealing with here is that whether that jurisdiction to conduct judicial reviews, which are to assess whether, for example, a decision made by the government is whether there’s jurisdiction for it, right, you know, is this properly federal or provincial, or did the legislation allow this kind of a decision or was that a reasonable one. that is an authority of a superior court which cannot be taken away by the government or just transferred to somebody else. And it’s not satisfactory to say, well, I guess there’ll be some political implication if you decide to pass some legislation or have government officials making decisions that are unreasonable or may or may not be in accordance with the legislation. It’s not sufficient to say yeah, there might be a political consequence to those kinds of actions. That section, section 96 of the Constitution Act guarantees things, including the power of superior court judges to conduct judicial reviews, and a judicial review is not just on jurisdiction. It cannot be the case that the government can just legislatively, like section 66 would have provided to say, well, you just cannot review  the facts found or the law, determining whether, for example, a decision was reasonable. You’re just not allowed to take that away by just inserting that provision into a piece of legislation. And so it’s important, I guess I would say that this decision, and it goes well beyond the narrow facts of the case. It just makes clear that there is a constitutional right to judicial review bound up, in that concept of the rule of law. And you cannot substitute the fact that there could be a political consequence, and you’re not allowed to just insert some legislative provision that says you can’t challenge this. I must say sometimes you see those sort of things in legislation you’re sort of like really did you really think that’s how this was going to work out? Did you really think you could just insert a provision that said this can’t be challenged effectively? Did you think that was going to carry the day? We now have clear authority from the Supreme Court of Canada defining what the scope of judicial review is and the fact that that is one of the core functions of a superior court judge. And by necessary implication, Section 96 of the Constitution Act doesn’t allow the government to limit or prevent that. And so with the benefit of that finding the case has now been sent back so that there can be an assessment of whether the decision made by the Conflict of Interest Commissioner was lawful and the court will have clear authority to do that. So that’s the latest from the Supreme Court of Canada, the case brought by Democracy Watch in the decision that will have bigger implications in terms of how government can be held to ensure that their decisions are lawful, reasonable, and within their jurisdiction.

Adam Stirling [00:19:55] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday. Thanks so much for the time. Pleasure as always.

Michael T. Mulligan [00:20:03] Thanks . Always great to be here.

Automatically Transcribed on September 9, 2026 – MULLIGAN DEFENCE LAWYERS