The implications of the Canadian charter of rights and freedoms for the law relating to guardianship and trusteeship

International Journal of Law and Psychiatry. Printed I” the U.S A All rtghts reserved,

Vol. 10, 21-34.

1987 CopyrIght

0160.2527/87 $3.00 + .OO ~1 1987 Pergamon Journals Ltd.

The Implications of the Canadian Charter of Rights and Freedoms for the Law Relating to Guardianship and Trusteeship Robert M. Gordon* and Simon N. Verdun-Jones**

Introduction When a man assumes public property.

a public trust,

he should

consider

Thomas

himself

Jefferson

as

(1807).

Since 1982, a number of commentators have addressed the issue of the potential implications of the Canadian Charter of Rights and Freedom’ for the field of Canadian mental health law;2 however, no attempt has yet been made to apply such an analysis to the twin areas of

*Instructor, School of Criminology, Simon Fraser University, Burnaby, B.C., VSA lS6, Canada. **Professor and Director, School of Criminology, Simon Fraser University, Burnaby, B.C., V5A lS6, Canada. The authors gratefully wish to acknowledge that their research has been supported by a grant from the Social Sciences and Humanities Research Council of Canada. ‘See Constitution Act, 1982, as enacted by the Canada Acr, 1982 (U.K.) c. 11, proclaimed in force April 17, 1982. ‘Department of Justice, Saskatchewan, (1984). Compliance of Saskafchewan laws with (he Canadiun Charrer of rights andfreedoms, Saskatoon, Department of Justice: Keyserlingk, “Consent to Treatment: the Principles, the Provincial Statutes and the Charter of Rights and Freedoms”, Canada’s Mental Heal/h, Volume 33, 7-l 1 (1985); Newman, “Charter Implications for Procedures under the Ontario Mental Health Act”, Health Law in Canada. Volume 5, 60-64 (1985); Reichenfeld, “Elderly Psychiatric Patients in lnstitutions - Implications of the Canadian Charter of Rights and Freedoms”, Health Law in Canada, Volume 5, 83-88 (1985). 21

R. M. GORDON and S. N. VERDUN-JONES

22

dangerous offenders3 and lieutenant-governor’s warrants,J there has been a marked dearth of Charter cases concerning non-criminal issues in the field of mental health law.‘ As yet, it is still too early to discern any clear trend in judicial approaches to Charter issues in this field. However, as a consequence of early judicial incursions into this area, there is some cause for optimism that Charter remedies will be granted to mental health patients in cases of marked injustice.” Ironically, one of the recent mental health law cases, in which Charter issues were raised, did involve guardianship and trusteeship matters;: however, these Charter issues were dealt with somewhat summarily and, therefore, the case is of little direct assistance in prognosticating the future course of Charter challenges in this area. Despite the difficulty of predicting a highly uncertain future in the courts, an attempt will nevertheless be made to raise some critical issues concerning the impact of the Charter upon the laws governing the vitally important institutions of guardianship and trusteeship. General Issues Concerning

the Charter

It may be expected that certain legislative adjustments will be made in response to the need for all provincial legislation to conform with the provisions of the Charter. The recent enactment of Saskatchewan’s Mental Health Services Act, 1985” provides an excellent illustration of a provincial legislature attempting to refine its mental health law in light of the perceived requirements of the Charfer. Of course, it is permissible for a legislature to avoid meeting such a requirement where it expressly declares that its legislation shall operate “notwithstanding” certain provisions of the Charter.’ However, to date, only one provincial statute, related to the field of guardianship and trusteeship, namely Quebec’s Public Curatorship Act, I”contains such a declaration. It remains to be seen whether other provinces will follow suit in the future. It is most important to bear in mind that the guarantees enshrined in the Charter are by no means absolute. Indeed, Section 1 of the Charter provides that these guarantees are subject to “such reasonable limits prescribed by law as can be demonsrrably justified in a free and democratic society”. However, the courts have held that the government bears the onus of establishing that an ‘K.

1’. G~rcrcr~~so~~(1982).

(Ont.C..A.);

I C.C.C.

H. 1.. f.e~cis (1984),

(3d)

12 C.C.C.

370

(B.C.S.C.);

(3d) 353 (Onr.

R. I’. Longew C. A.);

R. I’. Lyons

(1984),

11 C.C.C.

(1984),

15 C.C.C.

(3d)

336

(3d) 129

(N.S.C..A.); Re ‘Ifrrclwll urfd r/w Queen (1983). 6 C.C.C. (3d) 193 (0nt.H ct.); Re ,!4oore crnd rhe Quern (IYW. IO C.C.C. (3d) 306 (Onr. H.C..I.); R. 1’. Si,r?on /.Vo.3) (1982). 69 C.C.C. (2d) 557 (N.W.T.); R. I’. Itrr~r/c/le(Oc~. 31. 198-t). Ii \I’.C.B. 173 (B.C.C.A.). ‘R. 1’. Gor(/rr:1~(1984). II C.C.C. (3d) 233 (hlan. CA.); R. v. Kir/ing(.4pril 21, 1983), 9 1Y.C.B. 471 (Ont. C’o.Cr.): Re Rrhicorrcl /he Queetr (19X), 20 C.C.(‘. (3d) 196 (B.C.S.C.); R. 13.Swain (1986), 24 C.C.C. (3d) 3x5 (Oni.

CA.).

‘;Zmong

rhe SW repor-trd cast‘\ of a non-crirnlnal

fbr- .Alhrrra i’f c/l. (1983),

5 D.I..R.

(1981). .i D.1 .K. (4th) 577 (P.E.I.S.C., P~~,c./~iitr~ic,Sr~~,i~e.~(19&l), 5 C.H.R.R. ‘sx.

for r\ampte,

Llrsu.

5,s..

I’)%-xi,

in banco); D/2203

(hlan.

.wprc, n .i.

-C/ark I’. c‘lurk (1982). 30 O.K.

naturr

are Re En’~110~71onJourrwl

(4th) 230 (Alta C.A. ); Refemce

(Id) 383 (Co.Cr.).

c. \I-13.1.

“StxTlorl33( I ). ’ K.S.Q.. 1977.i‘. C-80(at amended).

Lust; O.B.).

und Arrorrwy-Gerlerul

Re Proced~rres cmd [he Mental Hdrh Act 1’. fhe Heal/h Science Cmtre ut?d Direcror of

GUARDIANSHIP

AND TRUSTEESHIP

23

infringement of a right, otherwise guaranteed by the Charter, is covered by this provision and that this onus is a very “substantial” one.” It should also be noted that Section 24(l) of the Charter provides that an individual, whose rights or freedoms under the Charter have been infringed or denied, may apply to a court “to obtain such remedy as the court considers appropriate and just in the circumstances”. In commenting on this broad provision for Charter remedies, Gibson has noted that the intent of Parliament appears to have been to “embrace at least all appropriate forms of relief that are within the regular power of the particular court to grant”.‘* Indeed, in the view of this analyst, the wording of Section 24(l) would “clearly include damages, where suitable, as well as both prohibitory and mandatory injunctions, declarations, the invalidation of laws, contractual provisions and administrative arrangements that offend the Charter, prerogative remedies such as Habeas corpus, mandamus, prohibition, quo warrant0 and certiorari, and the quashing of criminal prosecutions in appropriate cases”.‘) A number of these remedies may well be sought by an individual who is under a personal guardianship or whose property is under a form of trusteeship and who claims that his or her constitutional rights have been violated. Before embarking upon an analysis of the likely impact of the Charter upon the specific areas of guardianship and trusteeship, it should also be pointed out that certain provisions of the Charter will have an important impact upon the status of those under guardianship or trusteeship vis-a-vis many other areas of the law. Most particularly, Section 15 protects the elderly and mentally and/or physically handicapped from unjustifiable discrimination on the basis of their age or handicapped status. Furthermore, Section 15(2) makes specific provision for preserving the constitutionality of so-called “affirmative action” provisions that are oriented towards improving the lot of these groups of citizens.14 It can no doubt be argued in the future that Section 15 protects a person from being deprived of any right or privilege, enjoyed by his/her fellow citizens, solely by reason of such a person having been placed under trusteeship or guardianship. Therefore, such an individual could not be unreasonably denied access to such resources as accommodation, services or employment. Since Section 15 only came into effect in April 1985, it remains to be seen quite how “Regina v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.). See also Re Ontario Film and Video Appreciation Society and the Ontario Board of Censors (1983), 147 D.L.R. (3d) 58 (Ont. Div. Ct.); Public Service Alliance ofCanada v. The Queen in right of Canadaet al. (1984), 11 D.L.R. (4th) 337 (F.C.T.D.), affirmed 11D.L.R. (4th) 387. See Marx, H. Ch. 4, (1984). In W. S. Tarnopolsky, and G.-A. Beaudoin (eds.), The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell. “See Gibson, D. Ch. 16, (1982). In W. S. Tarnopolsky and G.-A. Beaudoin (eds.), The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell. At p. 502. ‘j/bid, at pp. 502-503. Exemplary or punitive damages are apparently available as a Charter remedy: see Crossman v. the Queen (1984), 12 C.C.C. (3d) 547 (F.C.T.D.). In an important case, the Ontario Court of Appeal has ruled that s. 24(l) was not intended to grant a court the power to “amend legislation or introduce new legislation at its discretion”; Regina v. Varga (1985). 18 C.C.C. (3d) 281. In a subsequent case, the Ontario High Court of Justice ruled, however, that it was still open to a court to declare a statutory provision inoperative to the extent that it was inconsistent with the Charter; Regina v. Cecchini (1985), 22 C.C.C. (3d) 323. 14See Shewchuk v. Ricard and A.-G. B.C (May 9, 1986, B.C.C.A.); Rights Commission (1985), 23 D.L.R. (4th) 277 (Man. Q.B.).

Re Apsit et al. and Manitoba

Human

24

R. M. GORDON and S. N. VERDUN-JONES

the appellate courts are prepared to use this significant provision tion of disadvantaged groups such as those mentioned above. The Legal Framework of Trusteeship and Guardianship

in the protec-

in Canada

In Canada, there are presently two different legal procedures that are concerned with the appointment of guardians of the person and trustees of the estate; namely, the judicial hearing and the medical or psychiatric certification procedures. The judicial hearing procedure, the origins of which can be traced back to the English Lunacy Laws of the mid-nineteenth century, is the least used of the two, despite the fact that it is the most protective of an adult’s fundamental rights and freedoms. The process, which is both time-consuming and expensive, may be initiated by an individual applying to the Superior Court of a province for an order declaring an adult to be incompetent and appointing a ‘committee’ with the power and authority both to assume total responsibility for the adult and to take total or partial control of his/her estate. Before an order may be made, however, the application (which is usually supported by the written opinions of two medical practitioners) is reviewed by a judge and, if the application is opposed, a full hearing of the matter may take place. Generally, such applications are dealt with according to the rules and procedures affecting any form of civil litigation.” There are two important exceptions to the nature of this judicial hearing procedure. In Quebec, the procedure is known as “judicial interdiction” and, while the appointment of a curator with full control over the person and partial control over the property of a disordered individual is ultimately a matter for the court to decide, both the need for interdiction and the choice of the curator will first be determined by a meeting of the individual’s family. The family council forwards its recommendations to a judge and these will normally meet with the latter’s approval.lh Since the proclamation of The Dependent Adults Act in 1978, the appointment of guardians in Alberta has also followed a somewhat different path. Applications are dealt with by the Surrogate Court and every guardianship application may be contested. Before an order may be made, the Court must be satisfied that it is in the “best interests” of, and likely to result in substantial benefit to, the person who is the subject of the application. Every order must be “tailor-made” to suit the specific needs of the adult concerned and the powers and authority of guardians are determined by an evaluation of the adult’s total life-situation; the impact of such an order will be limited to those areas of functional disability that are identified in the assessment.” The alternative to the judicial hearing procedure emerged during the wave of mental health law reform which affected most provinces during the 1960s. Indeed, the “medical or psychiatric certification procedure” is the method most ‘See Gordon, R. M., Verdun-Jones, S. N. and MacDougall, D. (1986). Sfanding in Their Shoes: Guardianship, Trusteeship and the Elderly in Canada, Unpublished Report to the Social Sciences and Humanities Research Council of Canada, Simon Fraser University. The specific procedure is set out in provincial incompetency legislation. See, for example, Mental Incompetency Acl, R.S.O. 1980, c.264; Infirm Persons Act, R.S.N.B. 1973, I-8; Patients Property Act, R.S.B.C., 1979, c.313; and Mentally Disordered Persons Act, R.S.S. 1978, c. M-14. In Manitoba and Prince Edward Island, the procedure is incorporated within omnibus mental health statutes. ‘“Gordon, Verdun-Jones and MacDougall, supra, n.1’. ‘See The Dependenf Adults Act, R.S.A., 1980, c. D-32, as amended by S.A., 1985, c.21

GUARDIANSHIP

AND TRUSTEESHIP

25

commonly employed for the imposition of control over the estate of a mentally disabled adult. Any individual who falls within the purview of a provincial mental health system may be examined by one or two medical practitioners for the purpose of assessing his or her competency to manage an estate. Upon admission to a mental health facility (in some provinces, even as an out-patient), a person may be examined and certified as incompetent, whereupon the provincial public trustee service assumes total control of the estate until such time as the person is certified as having recovered his or her competence. This outcome will not occur if the adult already has a judicially appointed “committee” and, if a “committee” is subsequently appointed by the Court, then the public trustee service will relinquish contro1.‘8 In some provinces, patients have a right to appeal the issuance of a medical or psychiatric certificate of incompetency to a mental health review board or panel, which may conduct a hearing into the matter. However, in practice, such applications for review are rare and review board hearings occur infrequently.19 Generally, the medical or psychiatric certification procedure manifests the advantages of simplicity and speed, and no financial outlay is required. However, the affected adults must first endure the experience of being processed by a mental health system. The procedure only permits the imposition of control over an adult’s property and financial affairs, except in Manitoba and Quebec where the public trustee service may assume guardianship of the juridical, but not the physical, person (in other words, guardianship of a person’s rights). This procedure totally lacks any judicial involvement and an individual may lose control of his or her estate without the benefit of a hearing to test the need for such a drastic course of action. The Impact of the Charter Upon Guardianship

and Trusteeship

It may be contended that many of the provisions of the Charter will have potentially major implications for two specific areas of the law relating to guardianship and trusteeship: namely, (i) the procedures established by statute for the imposition of guardianship or trusteeship and (ii) the conduct of those who assume control over another person’s person and/or property.

(i) Impact of the Charter Upon Statutory Procedures for the Imposition of Guardianship or Trusteeship Section 7 of the Charter enshrines the right to “life, liberty and security of the person” and the right “not to be deprived thereof except in accordance with the principles of fundamental justice”. The Supreme Court of Canada’s recent decision in Reference Re Section 94.(2) of the Motor tihicle Act*O will, no doubt, have a profound impact upon the judicial interpretation of Section 7 of ‘#In Ontario, the public trustee service will not assume control of an estate if a valid, enduring power of attorney has been assigned by the person while he/she was competent. “See Gordon, Verdun-Jones and MacDougall, supra nr5. The medical or psychiatric certification procedure is usually set out in the applicable provincial mental health legislation. See, for example, Menfal Health Act, R.S.O., 1980, c. 262; MentalHealthAct, R.S.N.B., 1973, c. M-10; HospitalsAct, C.S.N.S. 1979, c. H19; MentalHealth Act, R.S.M., 1970, c. 110. *0(1985), 23 C.C.C. (3d) 289.

26

R. M. GORDON and S. N. VERDUN-JONES

the Charter. In particular, the case establishes that the words “principles of fundamental justice” are not limited to merely procedural matters. Lamer, J. said,” (t)he task of the court is not to choose between substantive or procedural content per se but to secure for persons “the full benefit of the Charter’s protection” . . . . . . . under Section 7, while “avoiding adjudication of the merits of public policy.“?’ The Court also held that the term “fundamental justice” was not the same as that of “natural justice”. Lamer, J. asserted that . . . .the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.”

The Court’s broad interpretation of Section 7 of the Charter could well have the effect of expanding the nature of judicial inquiry into the substance of, as well as the procedures contained in, legislation such as that establishing the devices of guardianship and trusteeship. It remains to be seen whether litigation will be launched in this area with a view of taking advantage of the apparently more expansive judicial approach, manifested in the Supreme Court’s decision. For the present, it is clear that Section 7 entitles the citizen (at the very least) to “procedural fairness” and, therefore, has particular relevance to the legal process by means of which an individual is declared to be incompetent to look after his/her own person and/or to manage his/her own affairs. There can be little doubt that the appointment of a personal guardian necessarily results in a severe deprivation of the liberty of the person. A guardian assumes control of another person’s life and may actually have custody of that person. This situation may even impinge upon the person’s right to life insofar as a guardian may be empowered to give substitute consent to surgical operations or medical treatment that may involve a serious risk to the person’s life. Similarly, a guardian may give substitute consent to less hazardous medical treatments or even experimental treatments, thereby infringing upon an individual’s right to security of the person. Consequently, the protections guaranteed by Section 7 of the Charter must necessarily assume considerable importance. The affected person has a clear right to “procedural fairness” before being subjected to guardianship and any guardianship hearing should be conducted in a manner that is consistent with this right. Insofar as a judicial hearing is mandated before a personal guardian can be appointed, the current situation in every province is generally consistent with the requirements of the Charter. However, the right to procedural fairness probably dictates that the existing protections, contained in current statutory procedures and practices, be enhanced. Most notably, it could be contended that an individual is entitled to the following, specific rights: l l l l

the the the the

right right right right

?‘ld. at p. 299. ?zlr/, at p. 302.

to to to to

be notified of a hearing. be treated impartially. a formal and adversarial be heard.

hearing.

GUARDIANSHIP

l l l l l l

the the the the the the

right right right right right right

to to to to to to

27

AND TRUSTEESHIP

examine and cross-examine witnesses. legal representation. review any documents which are submitted to the court. secure an adjournment of the proceedings. be informed of the outcome and the reasons for the decision. appeal the decision of the court.

It might well be argued that, where provincial legislation dealing with personal guardianship does not protect these procedural rights, then it is inconsistent with the provisions of Section 7 of the Charter.23 The issue of trusteeship of a person’s property raises a number of complex problems insofar as the potential impact of the Charter is concerned. While the imposition of a guardianship of the person clearly affects the “right to life, liberty and security of the person,” it is by no means certain that this is the case with trusteeship of a person’s estate. It is beyond question that “property rights” were deliberately excluded from the protection of the Charter.24 In one sense, the effect of the imposition of trusteeship is confined to the enjoyment of property.25 Therefore, it could well be argued that the procedural protections afforded by Section 7 do not cover trusteeship proceedings. On the other hand, it might be contended that, given the profound impact of loss of control over one’s property and assets, the imposition of a trusteeship does infringe upon an individual’s “liberty” if this term is interpreted broadly and is not limited to liberty of the physical person. The key question, therefore, is whether or not the word “liberty,” in Section 7 of the Charter, can be construed broadly. Given the social and economic structure of Canadian society, it seems invalid to argue that loss of control over material assets does not involve a loss of liberty. Indeed, the very idea of protective intervention is premised, in part, on the assumption that assets have to be protected so that an individual can be at liberty to function effectively in society once he or she is restored to a competent status. If the assets are lost or misappropriated, the individual will be unable to continue to exercise his or her ‘3Illustrative of the courts’ concern with procedural rights. is Clark v. Clark, supra, n.‘, in which the Court ruled that the subject of the competency proceedings was entitled to the benefit of the common law presumption of competency and that the burden of proof (to the civil standard) was upon the party alleging incompetency. It should be noted that another procedural right, explicitly protected by the Char&r, is the right to an interpreter (Section 14), where a party to a judicial proceeding does not understand the language in which it is conducted, or is deaf. Clearly, Section 14 would cover guardianship and trusteeship hearings. *‘See Manicom et al. Y. Counly of Oxford et al. (1985), 52 O.R. (2d) 137 (Div. Ct.). By way of contrast, it should be noted that the fourteenth amendment of the U.S. Constitution protects “life, liberty, or property”; see Hogg, P. W. Ch.1, (1982). In W. S. Tarnopolsky and G.-A. Beaudoiu (eds.), The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell. At pp. 18-19. “As Patrice Garant has argued, Section 7 is concerned with physical liberty of the person, the right to dispose of one’s own body, of one’s person; in this context, the right to liberty cannot signify “the right to a free exercise of human activity”, contractual freedom, freedom of choice of mode of life, professional freedom, etc. See Garant, P. Ch. 9, (1982). In W. S. Tarnopolski and G.-A. Rights and Freedoms: Commentary. Toronto: Carswell.

Beaudoin

(eds.),

The Canadian

Charter of

28

R. M. GORDON and S. N. VERDUN-JONES

fundamental rights and freedoms and to meet his or her fundamental needs. The individual will not be at “liberty” to take care of him or herself, seek out meaningful recreation, take a vacation, or even purchase a postage stamp. In short, if an individual does not have assets he or she is not at “liberty” in a modern society. Arguably, the same reasoning can be applied to the situation where an individual is denied access to his or her assets because another person has been granted control of them. If the term “liberty” were to be interpreted broadly, within the specific context of trusteeship, the procedural rights guaranteed by Section 7 would, of course, be extended to the judicial hearings, which are employed in a minority of the cases in which trusteeship is imposed in Canada. However, the more profound impact of such an approach would be to raise serious questions about the procedural fairness of the medical or psychiatric certification procedures, by means of which the majority of trusteeships are established. Since no formal hearing is involved in the certification process, a challenge under a broadly interpreted Section 7 would likely attain a substantial degree of success. This is not to contend that the process should be struck down entirely. On the contrary, medical or psychiatric certification is an invaluable mechanism for securing protective intervention in ‘emergency’ situations and this can be justified by reference to the state’s parens patriae powers and duties. However, once the emergency has passed, continued intervention on the basis of an emergency action cannot be sustained unless a hearing that conforms with the canons of procedural fairness takes place. In short, the medical or psychiatric certification procedure can only be justified where emergency intervention is deemed necessary. However, the intervention must be restricted to a brief period. It is significant that this approach has already been adopted in Nova Scotia. To date, the weight of judicial authority appears to lean towards a somewhat restrictive interpretation of the term “liberty” in Section 7. For example, the Trial Division of the Federal Court has clearly ruled that the word “liberty” must be read in its context and that it is restricted to questions of bodily freedom.2h Other courts have held that the term does not cover “commercial or economic rights,“” the right to “security of employment,“‘* the “liberty to contract”2” or the right to “enjoyment of property.“3’) However, there have been a handful of cases in which a much broader interpretation of the word “liberty” has been adopted. It has been held that “liberty” ‘“Re Horbas et al. and Minister of Employment and Immigration et al. (October 22, 1985, Strayer _I.). See also Smith, Kline & French Laboratories Ltd. et al. v. Attorney-General of Canada (1985), 24 D.L.R. (4th) 321 (F.C.T.D.).; Parkdale Hotel Ltd. I’. Attorney-General of Canada (January 30, 1986, F.C.T.D., Joyal _I.); Re Malartic Hygrade Gold Mines (Canada) Ltd. and Ontario Securities Commission (March 21, 1986), 36 A.C.W.S. (2d) 252 (Ont. Div. Ct., Griffiths J.). “Gershman Produce Co. Ltd. v. Motor Transport Board (September 23, 1985, Man. C. A.). See also Re Abbotsford Taxi Ltd. and Motor Carrier Commission (November 4, 1985, B.C.S.C., Southin .I.). ‘XRe Downey et al. and the Queen et al. (May 16, 1985) 14 W.C.B.218 (F.C.T.D., Strayer J.). :‘Re Groupe des Eleveurs de Volailles de L’Est de L’Ontario et al. and Canadian Chicken Marketing Agenc.v (1984), 12 C.C.C. (3d) 9 (F.C.T.D.). See also Public Service Alliance of Canada v. The Queen in right of Canada et al. (1984). 11 D.L.R. (4th) 337 (F.C.T.D.), affirmed on other grounds, (1984), 11 D.L.R. (4th) 387. “‘Re Workers’ Compensation Board of Nova Scotia and Coasial Rentals, Sales and Service Ltd. et al. (1983), 12 D.L.R. (4th) 564 (N.S.S.C.).

GUARDIANSHIP

AND TRUSTEESHIP

29

includes “those freedoms of lawful conduct always enjoyed by Canadians and traditionally enjoyed under the English legal system, even if those freedoms the terms “liberty” and “security include an economic element.““’ Furthermore, of the person” read together have been held to cover the making of an order for support, under the Reciprocal Enforcement of Maintenance Orders Act, 1982 (Ont.), since such an order restricts the “free use and enjoyment of income and intrudes on the person’s lifestyle by constraining his freedom of choice with respect to the enjoyment of the benefits of his 1abour.“32 Similarly, it has been held that the rights to liberty and security of the person include the right to individual privacy or family autonomy and the parental right to be free from state intervention.33 Clearly, the language employed in the latter cases provide some grounds for suggesting that the drastic impact of trusteeship should be covered by Section 7 of the Charter. As yet, most of the decisions have occurred at the trial level and it remains to be seen how the various courts of appeal and, ultimately, the Supreme Court of Canada will resolve the issue. It could be argued that a person who has been subjected to trusteeship is not receiving equal treatment since those individuals, who are not handicapped by mental or physical disabilities, are not denied control over their assets. On this basis, since “age, ” “mental,” and “physical” disability are prohibited grounds of discrimination under Section 15 of the Charter, then a remedy should lie under the Charter. However, this argument is likely to be refuted on two grounds. First, the discrimination is undertaken for the benefit of the individual under trusteeship and is, therefore, justifiable in a “free and democratic society” under the terms of Section 1 of the Charter. Second, trusteeship can be considered a device for the “amelioration of the conditions of disadvantaged individuals” and is, therefore, rendered legitimate by Section 15(2) of the Charter. There are a number of other Charter provisions, which might have an impact upon the procedures for imposing guardianship and/or trusteeship; for example, Sections 8, 9 and 10. Section 8 protects the individual from “unreasonable search or seizure”. This provision has a bearing on both guardianship and trusteeship insofar as the appointment of a guardian or trustee could result in a search and seizure of a person, his/her property, or both. Clearly, such a situation could represent a total invasion of the individual’s privacy. The Supreme Court of Canada34 has ruled that Section 8 provides an entitlement to a “reasonable” expectation of privacy and that “an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement .“35Without doubt, any search or seizure by a duly appointed guardian or )‘Re Ma andMedical Services Commission of British Columbia (1985). 17 D.L.R. (4th) 385 (B.C.S.C.). 3ZRe Gilli/and and Waker (August 8, 1985), 32 A.C.W.S. (2d) 264 (Ont. Prov. Ct. (Fam.Div.)). It has also been held that the terms “security of the person” should be interpreted as including the right to enjoyment of the ownership of property; The Queen in right of New Brunswick v. Fisherman’s Wharf Ltd. (1982), 135 D.L.R. (3d) 307 (N.B.Q.B.), affirmed on other grounds, 144 D.L.R. (3d) 21. ‘)Re T and Cafholic Children’s Aid Society of Metropolitan Toronto (1984), 46 O.R. (2d) 347 (Ont. Prov. Ct.). j4Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97. 3sibid, at p. 108.

30

R. M. GORDON and S. N. VERDUN-JONES

trustee is “reasonable” insofar as it is necessary to protect the individual, who is deemed to be incapable of protecting him/herself or his/her property. Therefore, Section 8 is not likely to be used as a means of striking down the relevant provisions of the applicable provincial statutes. However, a remedy under Section 24 of the Charter may well be available where, in a particular case, an individual trustee or guardian strays far beyond the boundaries of his or her authority. Such an approach may be particularly appropriate in those provinces where the powers, authority and duties of guardians and trustees are not articulated clearly and precisely. The effect of Section 9 is to guarantee the “right not to be arbitrarily detained or imprisoned”. This provision has a bearing on the issue of guardianship insofar as a guardian could “detain” the person under his/her charge. A guardian often has plenary powers over a person and can therefore restrict the individual’s movement. Arguably, this amounts to detention; however, the critical issue is whether or not the detention is “arbitrary”. Chevrette3h points out that this is generally interpreted to mean “unreasonable”. In one Charter case,” the following test (from Tarnopolsky’s Canadian Bill of Rights, 2nd. ed.) was adopted by the court: The proscription here is against detention, imprisonment or exile without specific authorization under existing law. And further, that a law giving power to detain, imprison or exile, cannot grant such a power to be exercised ‘unreasonably’ or ‘without just cause’.‘” If a properly appointed guardian is acting reasonably and within the scope of his or her powers and authority, then it is clear that the provisions of Section 9 are satisfied. As was the case with search and seizure, if the guardian acts ‘unreasonably’ then the Charter could be invoked. Again, the guarantees in Section 9 could well be used to justify appropriate statutory reform in the provinces. Section 10 of the Charter provides a number of rights to the citizen who has been arrested or detained. This section could well be relevant to the case of a person who has been “detained” by a guardian. These include the right to be informed promptly of the reasons for the detention, the right to retain and instruct counsel without delay and to be informed of this right,‘9 and the right to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Since detention may occur after a guardian has been appointed, it follows that these rights exist after the court hearing, which resulted in the appointment. A person subjected to guardianship should, therefore, be told why this has occurred and be permitted to seek the assistance of counsel regardless of the fact that a guardian may have been granted the power and authority to handle the person’s legal affairs by virtue of a partial guardianship order. Tee Chevrette, F. Ch. 10, (1982). In W. S. Tarnopolsky and G.-A. Beaudoin ofRigh/s and Freedoms: Commenkzry. Toronto: Carswell. ‘7Regina 1’. Simon /No. I) (1982), 68 C.C.C. (2d) 86 (N.\+‘.T.S.C.). ‘xId, at p. 90, per de Weerdt .I. %ee, generally, K. 13. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.).

(eds.), The Canadian

Charfer

GUARDIANSHIP

31

AND TRUSTEESHIP

Section 10 clearly implies that a person under guardianship has a right to seek independent legal assistance for the purpose of, for example, appealing a decision of the court. Similarly, since Section 10 also guarantees a person’s right to have the validity of the detention reviewed, a person under guardianship is probably entitled to secure independent legal assistance at any time while a guardianship order is in effect for the purpose of launching a review of such an order. Significantly, the right to have the need for detention reviewed underscores the necessity of providing adequate review mechanisms for those who are subjected to guardianship.

(ii) Impact of the Charter Upon the Activities of Guardians and Trustees It has been contended that, in the specific context of mental health law reform, the combined effect of Sections 7 and 15 of the Charter dictates the adoption of the following principles: (i) that mentally ill persons should, as much as possible, be treated in the same manner as other persons in need of medical care; and, (ii) that the manner of treatment of mentally ill patients should represent the least restrictive a1ternative.j” It might well be asserted that these principles should also apply to those persons who are subjected to guardianship and trusteeship. In particular, intervention should be of the least restrictive and least intrusive variety. This necessarily requires that the powers and authority of guardians and trustees be limited to those areas where a person is truly in need and, arguably, the advent of the Charter sounds the death knell of plenary guardianship and trusteeship in Canada. The principle of the least intrusive and least restrictive mode of intervention receives support from other Charter provisions; most notably, Sections 2, 3, 6 and 12. Section 2 guarantees the exercise of fundamental freedoms, some of which could well be affected by the appointment of a guardian; in particular, freedom of religion, 4’ freedom of expression, and freedom of association. Apart from the general limitations on these freedoms, which apply equally to all persons,@ a guardian could conceivably prevent a person from engaging in religious worship, writing letters to a newspaper, and meeting with his or her family or friends. Arguably, such actions would be in contravention of the Charter unless it could be demonstrated that the restraints were both reasonable and in the person’s “best interests”. In this respect, a case can be made in favour of a requirement that the relevant provincial legislation clearly prescribe the circumstances under which restraining action may be taken by a guardian. The effect of Section 3 of the Charter is to guarantee the right of every citizen “‘Department of Justice: Saskatchewan, (1984) Compliance of Suskatchewan Laws with /he Canadian Charter of Rights and Freedoms, Saskatoon: Departmenr of Justice. “In R. v. Big MDrug Mart Ltd. (1985), 18 C.C.C. (3d) 385, Dickson J., while delivering his judgement in the Supreme Court of Canada, stated (at p. 425) that The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. JzBeckton, C., Ch. 5 and Cotler, I., Ch. 6 (1982). in W. S. Tarnopolsky, and G.-A. Canadian Charier of Rights and Freedoms: Commentary. Toronto: Carswell.

Beaudoin

(eds.),

The

R. M. GORDON

32

and S. N. VERDUN-JONES

to vote in a federal or provincial election to both Parliament and a legislative assembly. Generally, however, both the right to vote in federal elections and the right to seek election to Parliament are denied to those who are restrained of their liberty of movement or deprived of their property by reason of mental disease.” The term “mental disease” is vague in the extreme and it may be argued that the restriction should only apply to those who have been involuntarily committed to a psychiatric facility, those whose estates are under the control of a public trustee service, and those who have been declared to be incompetent by a court. The same principles should apply in the case of provincial elections..” At first blush, this situation sounds quite reasonable; however, it has the effect of stripping any person, who is subjected to guardianship or trusteeship of a quintessential democratic right. The approach can perhaps be justified on the basis of the general “reasonable limits” provision, contained in Section 1 of the Charter and, therefore, the issue could well be settled in favour of denying democratic rights to those under guardianship or trusteeship provided they are suffering from a “mental disease”. However, insofar as this term is both imprecise and not necessarily applicable to every person who is “mentally disabled” and in need of the assistance of a guardian or trustee, the general prohibition is arguably excessive. Perhaps it is most important to consider the practical circumstances which surround a person under guardianship or trusteeship.J’ Regardless of the constraints of either provincia1 legislation or of a personal guardian, the particular individual concerned may be disabled to such a degree that he or she is incapable of casting a ballot or organizing an election campaign. Even if the person could undertake the latter task, it is unlikely that an electorate would feel confident in voting for an obviously disordered individual. In practice, the person will neither cast a vote nor seek election and, consequently it might be thought there can surely be little harm in imposing restraints upon the exercise of democratic rights in these particular circumstances. However, limiting the exercise of these rights in such a way that the restraints affect all persons under guardianship or trusteeship may well constitute discriminatory action since some persons may be perfectly capable of at least voting. If they are prevented from doing so, they are being treated unjustly insofar as they are dealt with in the same manner as those who are totally disabled. This approach robs them of an opportunity to become involved in the democratic process and weakens their “See, for cwnpte, “‘see Heaudoin,

Char/w

qfRiph/s

‘“‘practical

Cunurlu E/~/ions G-A.

(‘h.

reawn\”

were cited as the rationale

(3d) 431 (H.C.S.C.).

und Barker

C’hcrrro- had heeu infringed. within

the meaning

for upholding

und rhe Qwen

I

wxion

14.(4).

(cds.).

The Ccmudiun

at pp. 220-224.

EIections Act, of Cunudu (1983), 7

14(4)(e) of the Cana&

rmd fhe Solicitor-General penitentiary

that the petitioners’

it \car held that the pro>i\ion

since “exerci\e

wction

Beaudoin

Erpecialty

provision disqualified

Taylor J. acknowledged

Ho~cvcr.

of Secrion

and G-A.

Toronto: Carswell.

The relevant statutory

for t’cdcral members of Parliament.

1970, c.14 (1st Supplemenr).

111W. S. Tarnopolsky

und F~reedomv: Commentary.

1970 in the case of Ke Johret

(‘.c‘.C.

Act, K.S.C.

7. (1982).

inmates from voting

rights, under Seclion 3 of the

was nevertheters a reasonable limitation

of the right to vole by prisoners would he impossible

for

Re Molrl~.v et ul. und Altornqv-Generrrl of Suskatchrwun et ul. (tY82), 2 c‘.C‘.<‘. (3d) 153 (Satk. Q.B.); Re Leb’esque crnd AtforncyGeneral of (hnuda et a/. (November 26, 1985, F.C.T.D.. Kouleau J.); Badgerer ul. 1’.A//orne.~-Generulyf Mcmitohu (March 12, 1986) 16 W.C.B. 200 (Man. pracrical

Q.B.,

rcawn\“.

Scollin J.).

Howewr,

c.f.

GUARDIANSHIP

AND TRUSTEESHIP

33

chances of influencing policy-making. Politicians need not concern themselves with the needs and interests of those who cannot express their concerns at the ballot box. In any event, this issue should be explored further and, so long as the present statutory prohibitions exist, a guardian can refrain from encouraging or allowing a person under his or her charge to vote or seek election, even though neither activity appears to be contrary to the person’s “best interests”. Section 6 of the Charter guarantees a citizen’s right to enter, remain in and leave Canada, and to move from province to province. The latter right is also extended to permanent residents. Clearly, a person under guardianship is subject to the control of his or her guardian and this situation implies that the latter will prevent such a person from exercising these mobility rights.‘” There seems little doubt that this eventuality would be consistent with the Charter insofar as the appointment of a guardian necessarily implies that an individual requires the constant guidance and assistance of another. If an exercise of the mobility rights meant the separation of the guardian from the person under his or her charge, then clearly the whole object of guardianship would be lost. Such an action could not be deemed to be in the best interests of the individual and the power to restrain mobility which is invested in a guardian would be covered adequately by the reasonable limits provision in Section 1 .j’ Finally, another, potentially relevant provision of the Charter is Section 12, which protects the citizen from “cruel and unusual treatment or punishment.“J8 This provision may affect the activities of a guardian in at least three ways: firstly, the situation where a guardian provides substitute consent to medical treatment; secondly, the general treatment of a person by his or her guardian; and, thirdly, the nature of any ‘punishment’ that might be imposed by a guardian. In the criminal justice context, it has been held,“’ for example, that . . . .the standard to be applied in determining whether treatment or punishment is cruel and unusual is whether the treatment or punishment is so excessive as to outrage standards of decency and surpass all rational bounds of treatment or punishment. The test, thus, is one of disproportionality: is this treatment or punishment disproportionate to the offence and the offender?

It remains to be seen how the provisions of Section 12 will be applied in the specific areas of mental health or guardianship. The section may well have ‘“The right of a legal guardian to determine where a child should live has been held no1 to be an infringement of Section 6: Kingsbury v. Minister of Socral Services for the Province of Saskatchewan (1982), 4 C.R.R.151 @ask. U.F.C.). %ection 6(3) arguably permits a province to pass or retain legislation, which grants such powers to a guardian. This provision states that mobility rights are “subject to”, inter alia, “any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.” %ee Morel, A. Ch. 12, (1982). In W. S. Tarnopolsky and G.-A. Beaudoin (eds.). The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswell. In Re Gittens v. The Queen (1982). 68 C.C.C.(Zd) 438 (F.C.T.D.), Mahoney J., who was called upon to interpret Section 12 of the Charter, adopted (at p. 445) the view of Laskin, C.J.C., in his dissenting judgement in R. v. Miller and CockrieN (1977), 31 C.C.C. (2d) 177, that the words “cruel and unusual” should not be treated conjunctively, in the sense of requiring a rigidly separate assessment of each word, but rather “as interacting expressions colouring each other”. Laskin. C.J.C. was referring to section 2(b) of the Canadian Bill of Rights. “‘ReMiichellandthe Queen (1983), 6 C.C.C. (3d) 193 (Ont. H.C.J.), per Linden, J., at p. 217.

34

R. M. GORDON

and S. N. VERDUN-JONES

implications for the use of certain controversial medical treatments, such as psychosurgery and electroconvulsive therapy and, therefore, affect the extent to which a guardian may be allowed to give substitute consent to such treatments. However, this situation will remain uncertain until the meaning of “cruel and unusual” in the context of medical treatment is judicially defined.“’ Similarly, the extent to which the provision applies to the general treatment and “punishment” of a person under guardianship by his or her guardian is unknown. It is clear, however, that provincial legislation which contains special provisions to protect a person from neglect and abuse at the hands of his or her guardian would cover many of the situations that could be affected by Section 12 of the

Charter. Conclusions A Fig for those by the law protected! Robert Burns There is little doubt that the advent of the Canadian Charter of Rights and Freedoms will have a major impact upon many fields of Canadian law. In the early years of the Charter’s existence, the focus of litigation has been upon the area of criminal law and procedure. There have still been very few cases in the mental health law area generally and only one reported case in the specific areas of guardianship and trusteeship. Whether the Charter will be brought to bear in these critical areas, where a delicate balance is required between the rights of a disabled individual and the need for intrusive intervention in his or her life, will ultimately depend upon the availability of legal advocates who are prepared to champion the interests of such an individual. At present, provincial legal aid plans are primarily geared to the sphere of criminal law practice. If the rights of persons under guardianship and trusteeship are to be protected in a vigorous manner, it is likely that specialized advocacy services will need to be developed for this particular clientele.” The establishment of the “Advocacy Centre for the Elderly” in Toronto provides an exemplar of the type of advocacy that must be developed in the future if the Charter’s full potential is to be reaped in this area. 12,c1 “‘In R. 1’. Kielrng (April 21, 19X3), 9 b’.C.B. 471 (Ont. Co. Ct.), it was held that Section 12 of the Charrer had not been infringed in the situation where the accused had been found unfit to stand trial and had spent 9 months in an institution despite the fact that the maximum sentence for the offence, with which he \\\a, charged, \\as only 6 months. See also, Regrrw v. Swuin (1986), 24 C.C.C. (3d) 385 (Ont. C.A.). “For a cotnprehen?i\e discussion of the issues, surrounding advocacy for the elderly in the U.S. context, wc Krauakopf, Advocac:v,for r/zeAging, St. Paul, Minn.: West Publishing Company, 1983. “For a detailed dixursion of the work of this agency see Gordon, Verdun-Jones and MacDougall, strprcr 11.“. “Authors’ Note. This paper was submitted for publication in the summer of 1986. Since that time, the Supreme Court of Canada has rendered its judgment in Re Eve (1987), 31 D.L.R. (4th) 1. This case has a bearing on the provision of substitute consent to health care for disabled adults since it was held that a court should not authorize the non-therapeutic sterilization of a mentally retarded person, under its parenspatriae jurtsdiction. The Court heard argument invoking Sections 7 and 15 of the Charter but these provisions did not influence the Court’s decision