Canada Rejects CRPD Abolition of Forced Treatment

We haven’t been blogging in a while because we’ve been waiting for a response to our third petition, which we sent to Canada’s House of Commons in 2022 (our second petition expired due to the 2021 federal election). Our petition demands that Canada adhere to both Article 12 (which forbids forced treatment) and Article 14 (which forbids forced hospitalization) of the Convention on the Rights of Persons with Disabilities (CRPD).

The fact that we got any response at all is an unexpected surprise! We thank our supporters who signed the petition. You have helped psychiatric survivors publicly state our case to the government. What we demand is nothing less than an end to the flagrant abuses of human rights routinely perpetrated under mental health acts and related legislation across Canada.

Even if we have little hope of our petition being considered, it is essential that we keep a record of Canada’s shameful refusal to uphold our rights. So, what did Canada say? Basically, that the status quo is just fine because there are legal safeguards in the Charter of Rights and Freedoms and in common law that prevent rights abuses. We remind them, however, that discriminatory legislation by its very nature cannot be redeemed using internal checks and balances; by targeting disabled persons, it already violates human rights.

Here is Canada’s response (retrieved from https://petitions.ourcommons.ca/en/Petition/Details?Petition=441-00559), with our rebuttals in blue:

Response by the Minister of Justice and Attorney General of Canada

Signed by (Minister or Parliamentary Secretary): The Parliamentary Secretary Gary Anandasangaree

Canada is proud to be a party to the United Nations Convention on the Rights of Persons with Disabilities (the Convention), which it ratified in 2010. In 2018, Canada acceded to the Optional Protocol to the Convention on the Rights of Persons with Disabilities, providing Canadians with an additional recourse to make a complaint to the UN Committee on the Rights of Persons with Disabilities, if they believe their rights under the Convention have been violated. In 2019, the Canadian Human Rights Commission was designated as a body responsible for monitoring the Government of Canada’s implementation of the Convention.

Canada should be ashamed of its dismal failure to uphold the human rights of people deemed “mentally ill.” As for the CHRC, it has never acknowledged the objection of the UN CRPD Committee to Canada’s reservation to Article 12 of the CRPD and to its inaction on Article 14, which are the subjects of our petition. Your response offers false reassurances that run counter to the spirit and letter of the CRPD and many of the recommendations made by the Committee, which states in its “Guidelines on Deinstitutionalization, Including in Emergencies”:

“(¶58) All legislative provisions that authorize the deprivation of liberty or other restrictions on liberty and security of person based on impairment, including involuntary commitment or treatment based on ‘mental illness or disorder’, should be repealed. Security measures applied in criminal proceedings, guardianship and other substituted decision-making regimes, and provisions for psychiatric hospitalization, including that of children, should be repealed.” This is only one example of how Canada’s supposed checks and balances miss the point.

Canada is also committed to creating an inclusive society for all. The Accessible Canada Act (ACA), which became law in 2019, lays out the foundation for disability inclusion in Canada, with the path towards achieving a barrier-free country by 2040 by identifying, removing and preventing barriers in federal jurisdiction in the areas of employment; built environment; information and communication technologies; other communication; procurement of goods, services and facilities; design and delivery of programs and services; and transportation. In April 2022, Canada’s first ever Accessibility Commissioner was appointed to monitor compliance with the ACA and investigate complaints and Canada’s first ever Chief Accessibility Officer was appointed in May 2022 to serve as an independent special advisor to the Minister of Employment, Workforce Development and Disability Inclusion on progress on implementation of the ACA.

Like the CHRC, the ACA enshrines Canadian mental health policy as is, in defiance of UN guidelines. And in both cases the supposed implementation of the CRPD is going ahead, in the absence of direction from persons with disabilities. This blatantly ignores paragraph 20 of the Guidelines on Deinstitutionalization: “Processes of deinstitutionalization should be led by persons with disabilities, including those affected by institutionalization, and not by those involved in managing or perpetuating institutions.” [Emphasis ours]

The Government of Canada takes its obligations under the Convention very seriously, and implements these obligations through the Canadian Charter of Rights and Freedoms (the Charter), statutes and regulations, as well as a range of policies and programs. For example, Article 14 of the Convention (liberty and security of the person) is implemented through section 7 of the Charter, which provides that “everyone has 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”, as well as section 9, which provides that “everyone has the right not to be arbitrarily detained or imprisoned”.

Canadians have brought Charter challenges against forced treatment to the Supreme Court, but judges have sided with psychiatrists in predicting the potential danger posed by persons with “psychosocial disabilities” – despite the lack of any scientific basis for such predictions. The Committee’s Guidelines on Article 14 plainly state that legislation based on supposed dangerousness is inherently discriminatory:

“(¶6) There are still practices in which States parties allow for the deprivation of liberty on the grounds of actual or perceived impairment. In this regard the Committee has established that article 14 does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived impairment. However, legislation of several States parties, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived impairment, provided there are other reasons for their detention, including that they are deemed dangerous to themselves or to others. This practice is incompatible with article 14 as interpreted by the jurisprudence of the CRPD committee. It is discriminatory in nature and amounts to arbitrary deprivation of liberty.”

In keeping with Article 12, Canadian law presumes that everyone should have the greatest possible autonomy in decision-making over matters such as health and where they live. Substitute decision-making arrangements are resorted to in only a small number of limited cases. They are considered a measure of last resort and are subject to significant procedural safeguards and judicial oversight. The determination that an individual has a need for support in decision-making, up to and including the appointment of a substitute decision-maker, is based only on evidence of the individual's actual decision-making ability, rather than on the existence of a disability.

Canada fails to recognize this legal presumption of autonomy when it comes to psychiatric treatment. CRPD Article 14 calls for “security of the person” in addition to liberty, and Article 15 calls for freedom from torture and other ill-treatment. Forced psychiatric interventions grossly violate both of these rights. Our supposed “greatest possible autonomy” would be news to the many persons forced into psychiatric units and declared incapable in respect to their treatment. Their right to appeal is compromised by the fact that they’ve already been drugged. And, under British Columbia’s “deemed consent” provisions, they are routinely denied even that flimsy legal recourse. The “Guidelines on Article 14” state:

“(¶15) The freedom to make one’s own choices established in article 3(a) of the Convention includes the freedom to take risks and make mistakes on an equal basis with others. In its General Comment No. 1, the Committee stated that decisions about medical and psychiatric treatment must be based on a determination of the person’s autonomy, will and preferences.14 Deprivation of liberty on the basis of impairment or health conditions in mental health institutions which deprives persons with disabilities of their legal capacity also amounts to a violation of article 12 of the Convention.”

Also note the following paragraphs in the “Guidelines on Deinstitutionalization” (which pertain to Articles 5, 14, and 19 generally, all of which Canada falsely claims to follow):

“(¶55) The reform of legislation on legal capacity, in accordance with general comment No. 1 (2014), should be carried out immediately, and simultaneously with deinstitutionalization. Where persons with disabilities, including those placed in institutions, are subjected to guardianship, forced mental health treatment or other substituted decision-making regimes, those measures should immediately be lifted. To prevent forced mental health treatment, affirmative, free and informed expression of consent by the person concerned is required.

“(¶40) Discrimination on the basis of disability may occur whether or not individuals are institutionalized explicitly on the basis of disability. Multiple discrimination and de jure or de facto [by law or by practice] discrimination may also occur in the community through a lack of support services, driving persons with disabilities into institutions.”

“(¶37) Assessment of capacities for independent living based on impairment is discriminatory and should shift to assessment of individualized requirements and barriers to independent living in the community.”

The relevant legal regimes – including those which allow for the use of involuntary admission and treatment of individuals with serious mental illnesses – fall within the jurisdiction of the provinces and territories. These provide for extensive regulation and safeguards in order to protect against abuse and ensure consideration of the perspective and interests of the individual in question.

With regard to the respective responsibilities of the provinces and territories, Article 4.5 of the CRPD states: “The provisions of the present Convention shall extend to all parts of federal States without any limitations or exceptions.”

As for the “safeguards” in mental health acts and other laws that prop up discriminatory legislation, the Committee’s “Guidelines on Deinstitutionalization” are clear:

“(¶61) Primary, secondary, regulatory and other sources of law should be systematically reviewed across all areas for the purposes of: (a) identifying those provisions that facilitate or enable institutionalization on the basis of disability, with a view to their abolition....”

“(¶62)Legislation that needs to be harmonized with the Convention includes legal provisions governing legal capacity, disability laws, anti-discrimination laws, family laws, health laws, civil laws, laws governing social care provision for children, adults and older persons, and social protection legislation. Such legislation should be reviewed in accordance with the Convention and the Committee’s general comments. Provisions in mental health laws allowing for the institutionalization of persons with disabilities should be abolished.”

The Charter provides additional protections for individuals subject to involuntary admission and treatment, including sections 7 and 9 (discussed above), as well as:

* Section 10, which provides that everyone has the right on arrest or detention: (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

* Section 12, which provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

* Section 15(1), which protects the right to equality before and under the law, and the right to the equal benefit and protection of the law without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

In practice, Section 10 is not respected in the case of involuntary psychiatric interventions. And the good intentions outlined in Section 12 are not sustained even to the extent of allocating resources for basic record-keeping (see Article 33 of the CRPD) to account for the possibility of poor outcomes, negative experiences, or rights abuses under coercion. As for Section 15(1), its promise of freedom from discrimination on the basis of disability is rendered meaningless by Canada’s refusal to recognize legal capacity.

Canada has no plans at this time to remove its reservation to Article 12. The Government of Canada has provided funding to a number of community organizations to identify domestic challenges persons with disabilities in [sic] face exercising their legal capacity and to develop tools to help further implementation of Article 12 domestically. The Government of Canada also continues to have discussions with provincial and territorial governments on the issue of supported decision-making. However, it remains the Government of Canada’s view that maintaining the reservation to Article 12 continues to be necessary at this time.

If Canada sees the value of implementing Article 12 “domestically,” how can they justify declaring a reservation against it? How can Canada create tools to help people exercise rights that it refuses to recognize, such as by allowing “supported” decision-making “up to and including the appointment of a substitute decision maker?” [Emphasis ours] These contradictions amount to a form of gaslighting: Canada refuses to implement the CRPD according to UN guidelines, while falsely claiming, and expecting us to believe, that persons with psychosocial disabilities already enjoy all the rights accorded to everyone else.

We will include Canada’s response to our petition, and our rebuttal, in our Shadow Report and in our correspondence with the UN Committee on the Rights of Persons with Disabilities, to indicate Canada’s refusal to recognize the human rights of persons with psychosocial disabilities.