“The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. The Charter guarantees certain political rights to Canadian citizens and civil rights of everyone in Canada from the policies and actions of all levels of government. It is designed to unify Canadians around a set of principles that embody those rights. The Charter was signed into law by Queen Elizabeth II of Canada on April 17, 1982.”Mr. Paul Conway, who has been detained on a psychiatric ward for 27 years for sexual assault and assaulting a police officer in the 70s, asked the Ontario Review Board to release him and affirm his rights under the Charter. However, the board rejected his request because they did not have jurisdiction to rule under the Charter of Rights and Freedoms.
“The Ontario Review Board annually reviews the status of every person who has been found to be not criminally responsible or unfit to stand trial for criminal offences on account of a mental disorder. The Ontario Review Board is established under the Criminal Code of Canada. The Board is made up of judges, lawyers, psychiatrists, psychologists and public members appointed by the Lieutenant Governor in Council.”Now, the Supreme Court ruled in favour of allowing administrative tribunals to apply the Charter in their fields of expertise. The ruling opened up the possibility for an array of litigation issues between patients and institutions that can be heard at almost any tribunal in the country. Moreover, the Charter will likely be used by many others in various circumstances, such as by prisoners to execute their rights for special privileges, by parents to dispute school policies and by employees to contest against job conditions.
“Systemically, one can speculate as to the infinite potential of far-reaching implications for the masses. This decision may protect their rights, but my own situation remains status quo. I am locked in the system. I would like to live productively and pro-actively in the community. But, for me, the beat goes on”, says Mr. Conway.On the surface it seems that prisoners with mental illness will benefit, but many experts see this as a setback. As Kristin Taylor, a CAMH lawyer explains that this “will bring new complexities to the process.” It may take longer for cases to be heard and completed, thereby delaying the process for others. “Richard O’Reilly, a psychiatrist at London’s St. Joseph’s Health Centre, predicted that Charter issues will swamp hearings that are routinely held to consider patient consent, capacity and treatment plans.” However, all sorts of, what might appear to others, as minor Charter rights issues will likely clog up the judicial process.
In addition, June Conway-Beeby, executive director of Ontario Friends of Schizophrenics, believes that patients and their families will be negatively affected by this ruling and states: “It is a only a victory for lawyers, who – from what I have observed recently in many court cases – do not understand the reality of severe mental illnesses”.
Of course this seems like quite the victory from a legal standpoint. “David Baker, a Toronto disability-rights litigator, agreed that the ruling will be very useful at tribunals that are responsible for meting out state benefits – such as reimbursement for medical treatment outside Canada, or special education programs in public schools.”
Besides the legal ramifications this entails, where is Mr. Conway now?
“I was put in an area of high supervision and confinement,” he said. “They stopped taking me into the community. I haven’t had fresh air and sunshine for almost a year now. I feel ostracized and separated and alienated. The system hates me. The system is vindictive.”He also plans to keep fighting the law while refusing medication as part of his treatment, which may have already freed him…
Legal victory was historic, but plaintiff remains in psychiatric ward
Canadian Charter of Rights and Freedoms
Ontario Review Board
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