Jan 21, 2013
Mental Disorder in Canadian Law
- Cognitive impairment: inability to perceive accurately/reason correctly about the outside world
- Volitional impairment: inability to exert adequate controls on one’s behaviour
- Law defines mental disorder as any impairment of psych. Functioning that is internal, stable and
involuntary in nature.
- Some mental disorders recognized in DSM-IV-TR not meet legal definition of mental disorder in
- Mental health professionals only act as consultants to triers of fact, providing expert
observations and opinions. (valued little, maybe disregarded entirely)
The Canadian Legal system
- General, law = set of rules and procedures designed to regulate the behaviour of ppl.
Fundamental goal to resolve conflicts among people
- 3 primary sources of law in Canada: constitutional, statutory, common law.
- Canada has a constitutional monarchy (head of state: Queen)
- Rights and responsibilities of monarch, parliamentary executives, and citizenry set out in
- Canada’s Charter of Rights and Freedoms unique b/c it guarantees rights and freedoms of
ordinary citizens are the same for people suffering from a mental disorder.
o Section 15(1) of the charter
- Section 15(1) minimize harm that may stem from stereotypical attitudes (e.g. violence and
- Infringement of rights requires demonstration of a functional link (causal nexus) b/w mental
disorder and legally relevant impairment of cognitive/volitional impairment capacity. (strict
- Statutes written and enacted by gov’t with support and approval of monarch.
- Statutes continually revised and updated (acct. for changes in world and opinions/desires of
citizens) but must be consistent w/ constitution.
- Two types of statutory law:
Civil mental health law
o Diff. across provinces and territories (same person treated diff. depending …)
o Balance b/w right of ppl suffering from mental disorder to choose to get treatment/not
and responsibility of gov’t to protect citizens from harm. Jan 21, 2013
Criminal law (federal gov’t has primary authority)
o Provisions for people (mental disorder) not criminally responsible and/or unfit to stand
o Criminal code (18+); Youth Criminal Justice Act (incl. 12-17)
More rehabilitative philosophy for special status and needs of young people
- Constitutional and statutory written laws have limitations:
o Impossible to anticipate every conflict b/w citizens
o Impossible to write perfectly clear and unambiguous laws (all-existing laws interpreted
and reinterpreted continually)
- Courts, tribunal, and review boards write down in legal journals the decisions they reach in
o Later reviewed by courts at a higher level and may also become common law
- Under parens patriae the “core” offered by the monarch/state to people, with serious mental
disorder can include involuntary definition in a hospital/ asylum.
- Quebec relies on civil code instead of common law.
o Based on Napoleonic code; reflects ties to France
- Both civil a