The decision, hailed by mental health legal experts as a step in the right direction, all but compels trial judges to appoint ex officio lawyers to represent the interests of individuals deemed to be “incapable” by the court, underlines that hospitals must ensure that such individuals have the opportunity to obtain counsel, and emphasizes that incapable people also have rights that must be respected, according to mental health legal experts.
“The Court of Appeal calls on the courts of first instance to take these matters seriously and to give due weight to judicial debates, as it should, with the contribution of lawyers in most cases,” noted Emmanuelle Bernheim, University of Ottawa law professor and Canada Research Chair in Mental Health and Access to Justice. “The Appeal Court also stresses that the rights (of incapable individuals) are important and they must be debated, and the role of the court is not just to endorse measures taken by others who are doctors. It doesn’t matter how unfit people are. Unfitness does not mean that you can intervene and infringe on someone’s right to integrity and freedom, and that deserves a judicial debate.”
Ian-Kristian Ladouceur, Services juridiques IKL
The case deals with a 79-year-old single woman who was ordered in February 2022 to be hospitalized after she was considered by Quebec Superior Court Justice Dominique Poulin to be incapable. She did not challenge the judge’s finding that she was unfit to consent to care. But she maintained that though she explicitly refused before and during the hearing to be represented by counsel, the trial judge should have appointed one under article 90 of the Code of Civil Procedure (CCP). She also maintained the trial judge failed to set a time limit on the current hospitalization and for having too-broadly worded her conclusion regarding possible rehospitalization.
The elderly person partially won her case. The 21-page unsigned decision by the Appeal Court held that trial judges must ensure that the rights of the person whom care is sought can be “truly” be heard and assert their rights. “The hearing cannot and must not be a mere formality,” asserted Appeal Court Justices Benoît Moore, Guy Cournoyer and Christine Baudouin. Trial judges must must ensure that their rights are respected by being “proactive” and ask questions of witnesses, particularly expert witnesses. Since the importance and gravity of a judgment ordering care against a person’s will cannot be “overstated,” a hearing on a care leave application “should not generally” be held without the person being represented by a lawyer who at the very least can cross-examine expert witnesses and “genuinely” test the evidence presented by the applicant.
The Appeal Court also clarified the notion of competence, a concept outlined in s. 90 of the CCP that is sometimes mistakenly referred to even by the legislator as capacity. Under s. 90, the court may on its own order legal representation if it deems it necessary to safeguard the rights and interests of a minor or a person of full age who is not represented by a tutor, curator or mandatary and is considered incapable by the court. Fitness, held the Appeal Court, is a question of fact and refers to the physiological and psychological competence of a person to make a decision and be accountable for his actions and “expressions of will.”
“The decision highlights the fact that the legislator has created confusion around these notions which has created all sorts of problematic situations as it’s obviously not the same tests to show legal incapacity and capacity to consent to care,” said Bernheim. “It is not because someone is incapable that they cannot have wishes, that their wishes cannot be taken into account, that they cannot to some extent express their wishes to their lawyer.”
Under the framework established by the Appeal Court, a two-step test is to be followed under s. 90 of the CCP. The first condition under this provision is that the minor or non-represented person of full age must be “considered” incapable by the judge, a determination that may be satisfied on the basis of preliminary evidence of a likelihood of unfitness.
“This wording indicates that the burden differs from one requiring a declaration or a finding of incapacity,” said the Appeal Court. Once the judge considers the person incapable, the assistance of counsel should be normally be required to safeguard their rights and interests. The judge does have discretion to conclude otherwise, but such a determination should be the result of a “rigorous” process, said the Appeal Court. If the judge determines that it is not necessary for the person deemed incapable to have legal representation, the judge must play a proactive role in the hearing.
“Not only does the judge's general duty to assist unrepresented persons justify such proactive action, but the interests at stake as well as the vulnerability of the person against whom the application is made exacerbate this need,” said the Appeal Court.
“What would be the point of such a judicial process at first instance if the judges hearing applications for authorization of care by health-care institutions do not ensure that these persons concerned are adequately represented?” asked rhetorically Ladouceur. “If there is no questioning of the medical team’s work by a legal representative present to defend a person in psychosis, no counter-expertise, no cross-examination, one wonders whether the work of a judge in the first instance amounts to nothing more than rubber-stamping the requests for authorization for care that are presented to him?”
Lahcène Allem, Montreal lawyer
But legal experts are perplexed over the finding by the Appeal Court that the trial judge did not commit a manifest and decisive error in finding that the elderly woman did not need legal representation. While the Appeal Court found that it is “undeniable that the appellant was only marginally able to assert her rights and participate in the process,” it found that “it is difficult to criticize the judge in any way as she did not have the benefit of this analytical framework.”
Lahcène Allem, a Montreal lawyer who co-pleaded the case, believes that finding is one of the weaknesses of the decision. “But, in the end, the most important thing is the framework of analysis provided to judges of first instance in order to apply s. 90 of the CCP,” said Allem. “That constitutes a small revolution in the legal world. I would like to think that this decision will significantly increase legal representation in this type of case, and I’m already beginning to see its practical application.”