CORE 477 - Midterm 2

Study Guide: Mental Health, Criminal Law, and Consent

Lecture 12: Mental Health

Key Concepts in Mental Health Law:

1. Community Treatment Order (CTO):

   • A CTO allows for the treatment of individuals with mental disorders in the community rather than in an institution. For a CTO to be issued, the following conditions must be met:

     • Mental Disorder: The person must be suffering from a mental disorder.

     • Recent Hospitalization: Over the past 3 years, the person must have been hospitalized or detained as a formal patient for at least 30 days or have been in a custodial institution (e.g., prison or psychiatric facility).

     • Recurrent or Repetitive Behavior: The person must have exhibited behavior that indicates they are likely to harm themselves or others, or suffer substantial deterioration without continued treatment.

     • Treatment Compliance: Two physicians must believe the person is likely to benefit from continuing treatment in the community.

2. Consent to CTO:

   • Generally, Consent is Required: Usually, the person or their substitute decision-maker (SDM) must consent to the CTO. If neither consents, the psychiatrist can still issue the order if there is evidence of significant harm risk due to a history of non-compliance with treatment.

3. Mental Illness and Suffering:

   • Mental illness can involve substantial suffering, and the mental health act aims to protect individuals from harming themselves or others while ensuring they receive appropriate treatment.

   • Example: Individuals with delusions, such as believing they are being harassed by electronic devices or experiencing mind control, may be subject to involuntary treatment if their behavior poses a risk to themselves or others.

Lecture 13: Legal Aspects of Consent and Public Interest

Guadey Case:

• Case Summary: Two brothers died due to the negligence of a drunk driver. In such cases, the prosecutors must consider the public interest, which ensures that public outrage is addressed and justice is served.

• Public Interest in Criminal Prosecution: Prosecutors are tasked with balancing the legal process and the need to consider public interest, which may involve public outrage in cases of serious harm caused by negligence.

Criminal Code - Purpose:

• Section 152: Without consent: This section outlines offenses that occur when consent is not obtained from the individual involved. Penalty: up to 5 years in prison.

• Section 153.3(d): Addresses consent issues, particularly in the case of people with disabilities. This section ensures that individuals with disabilities are provided with the necessary protections regarding consent.

• Attorney General’s Consent: For specific offenses (such as those under Section 153.3), proceedings cannot be initiated without the consent of the attorney general, indicating a more nuanced approach to criminal cases involving vulnerable individuals.

Royal Commission on New Reproductive Technologies:

• The Royal Commission evaluated various issues concerning new reproductive technologies and their implications on people's lives. This can include concerns about how such technologies affect reproductive rights, ethics, and legal protections for individuals.

• Boomers' Impact: The changing laws and evolving technological advancements have directly impacted the Boomer generation at different stages of their lives, particularly around medical issues and reproductive technologies.

Specific Case Studies:

1. H.S. Story (Adult Woman with ALS):

   • Background: A woman with ALS (Amyotrophic Lateral Sclerosis) faced severe physical disability but remained mentally alert and could communicate through sounds. Despite this, she suffered severe pain and bedsores.

   • Ethical Dilemma: The case raises ethical questions about the right to die with dignity, especially when a person's illness is irremediable and they face unbearable suffering.

   • Assisted Dying: This highlights the importance of support for assisted dying when people do not want to suffer unnecessarily due to an incurable disease.

2. A.B. Story (80-Year-Old Toronto Man):

   • Similar to the H.S. case, this elderly man faced significant pain and suffering due to his medical condition, leading him to seek options for assisted dying. The case highlights the broader debate around end-of-life decisions, especially when the individual is enduring intolerable suffering.

Charter Challenge on Rights:

• In some cases, individuals or groups have challenged laws on the grounds that they violate their constitutional rights, particularly the right to autonomy over their life and death in cases of irremediable illness.

Mental Health Act and Section 9(1)

• Mental Health Act Section 9(1) outlines the requirements for placing someone on a Community Treatment Order (CTO):

  • Mental Disorder: The person must have a diagnosed mental disorder.

  • Recent History of Formal Treatment: The person must have been a formal patient or detained in a hospital or custodial institution within the last 3 years.

  • Repetitive Behavior: The person’s behavior must indicate a high likelihood of harm to themselves or others without treatment.

  • Physician’s Opinion: Two physicians must agree that the person would suffer harm without continuing treatment and that they can comply with treatment in the community.

• Consent Issues:

  • Usually, the person or their substitute decision-maker (SDM) must consent to the CTO, but if consent is not obtained, a psychiatrist can still issue the order if the person’s behavior indicates they will cause harm without treatment.

Key Terms:

• Mental Disorder: A condition that affects the person's mental functioning and often leads to behaviors that pose a risk to themselves or others.

• Formal Patient: A person who is formally admitted and treated in a hospital or mental health facility under the Mental Health Act.

• Substitute Decision-Maker (SDM): A person authorized to make decisions on behalf of someone who is incapable of making decisions themselves.

Important Points to Remember:

• Community Treatment Orders (CTOs) provide a way to treat individuals in the community rather than institutionalizing them, provided they meet specific criteria.

• Consent is a critical issue in mental health law, particularly concerning CTOs, with certain exceptions when the person’s behavior poses a significant risk.

• The Role of Public Interest in legal cases, such as the Guadey case, emphasizes the need for legal systems to respond to societal concerns and public outrage, especially in cases of negligence or harm.

• End-of-Life Issues such as assisted dying for people with incurable diseases raise significant ethical and legal questions, with particular emphasis on the autonomy and rights of individuals.

Assisted Dying and Legal Changes in Canada

1. Introduction to Assisted Dying

Assisted dying refers to the act of providing assistance to a person who wishes to end their life, typically due to unbearable suffering caused by a medical condition that cannot be alleviated. This practice is controversial and heavily regulated in many countries. In Canada, the laws governing assisted dying have evolved significantly, especially with regard to physician-assisted death.

2. How the Law Changed – 2011 Constitutional Challenge

In Canada, until 2015, assisted dying was prohibited under the Criminal Code. A series of legal challenges to these prohibitions began in 2011, led by plaintiffs who sought to change the law to allow physician-assisted death under certain conditions.

Key Legal Provisions Before the Challenge:

• Section 222(1) of the Criminal Code: This section defines homicide, including causing the death of a person by any means, which prohibited assistance in dying.

• Section 14 of the Criminal Code: This section stated that no person could consent to have their death inflicted on them. It also clarified that such consent would not affect the criminal responsibility of the person assisting in the death.

These provisions effectively criminalized any act that helped or assisted an individual in dying.

The Constitutional Challenge (2011):

• The challenge to these laws began in British Columbia in 2011.

• Joe Arvay, a prominent lawyer, represented the plaintiffs who sought to overturn the legal prohibitions against assisted dying.

Outcome of the Challenge

• Trial Court: The plaintiffs won the case at the trial level, arguing that the existing laws violated Section 7 (the right to life, liberty, and security of the person) and Section 15 (equality rights) of the Canadian Charter of Rights and Freedoms.

• BC Court of Appeal: The plaintiffs (now the "respondents") lost in the BC Court of Appeal, which upheld the criminal code provisions. However, this decision was made based on stare decisis (the principle of adhering to previous legal decisions), meaning the court followed existing precedents that supported the prohibition on assisted dying.

• Supreme Court of Canada (2015): In a historic 9-0 ruling, the Supreme Court of Canada struck down the ban on physician-assisted death.

  • The court concluded that Section 7 of the Charter had been violated by the prohibition of physician-assisted dying.

  • The Court held that the law deprived competent adults of their right to physician-assisted death when:

    1. The person clearly consents to the termination of life.

    2. The person has a grievous and irremediable medical condition that causes enduring suffering that is intolerable under the circumstances.

The ruling essentially legalized physician-assisted death for individuals who meet these criteria.

Key Elements of the 2015 Supreme Court Ruling:

• Competence: The person must be a competent adult, meaning they must have the mental capacity to make the decision to end their life.

• Clear Consent: The individual must clearly consent to the termination of their life, ensuring that their decision is voluntary and informed.

• Grievous and Irremediable Condition: The individual must have a serious medical condition (including illness, disease, or disability) that is irreversible and causes enduring, intolerable suffering.

• Enduring Suffering: The individual must be experiencing suffering that is unbearable and cannot be alleviated by other means.

Impact of the Decision (2015)

The Supreme Court’s ruling in 2015 was a landmark decision that:

• Allowed for physician-assisted death under specific conditions.

• Strengthened the right to autonomy, enabling individuals to make decisions about their end-of-life care.

• Established a precedent for similar legal challenges in other countries and jurisdictions, influencing debates on assisted dying globally.

Key Points to Remember:

1. Assisted Dying in Canada:

   • Prior to 2015, the practice was illegal under the Criminal Code, specifically Sections 222(1) and 14.

   • The 2011 legal challenge sought to change these laws, leading to a 2015 Supreme Court decision that legalized physician-assisted death under specific conditions.

2. Legal Conditions for Assisted Dying:

   • The person must be a competent adult.

   • The person must clearly consent to ending their life.

   • The person must have a grievous, irremediable medical condition that causes enduring suffering.

   • Physician-assisted death is allowed when these conditions are met, ensuring that individuals have a choice in their end-of-life decisions.

3. The Role of the Court:

   • The Supreme Court of Canada played a crucial role in protecting the right to life, liberty, and security (Section 7) and ensuring equality (Section 15) by striking down the ban on assisted dying.

   • The decision was a 9-0 ruling, marking a significant shift in Canadian law.

4. Ongoing Legal and Ethical Discussions:

   • Following the ruling, there has been continued discussion about the ethical and legal frameworks surrounding assisted dying.

   • The ruling has led to additional legal and policy debates about how assisted dying should be regulated and the safeguards that must be in place to ensure it is carried out in a responsible and ethical manner.

Medical Assistance in Dying (MAiD) – Part 1 (2011-2016):

• Charter Challenge: People challenged provisions of the Criminal Code that prohibited assistance in dying, arguing that these sections violated the rights of grievously and irremediably ill people.

• Carter v. Canada (2015): The Supreme Court of Canada ruled that the Criminal Code provisions violated section 7 of the Charter (right to life, liberty, and security) for individuals suffering from grievous and irremediable conditions. The Court ruled in favor of those seeking medical assistance in dying.

• The case highlighted the distinction between those with severe physical disabilities seeking assistance to die and individuals who may have a mental illness or temporary state of distress, noting the importance of distinguishing these cases.

Medical Assistance in Dying (2016-2024):

• 2016 Legal Changes: The Canadian Parliament passed legislation in June 2016 allowing physicians and nurse practitioners to provide medical assistance in dying to qualified individuals, under strict criteria.

• Eligibility: To qualify for MAiD, individuals must be:

  • Eligible for government-funded health services in Canada.

  • At least 18 years old and mentally competent.

  • Have a grievous and irremediable medical condition.

  • Give voluntary, informed consent.

  • Be aware of palliative care options.

• The law was seen as a compromise, and many felt it did not fully align with the Supreme Court's ruling in Carter, particularly regarding the definition of "grievous and irremediable conditions."

• Challenges to the Law: A number of constitutional challenges followed, particularly from people with non-terminal disabilities who sought inclusion under the law.

  • Julia Lamb and others in BC: Challenged the "reasonable foreseeability" and "advanced decline" requirements, arguing they were too restrictive.

  • Quebec Challenge: Jean Truchon and Nicole Gladu, both with non-terminal conditions, challenged the "reasonably foreseeable death" requirement, and the Quebec court found that the law violated their Charter rights.

• Outcomes and Expansion:

  • Following these challenges, the Canadian government decided not to appeal some court decisions.

  • The eligibility criteria have been expanded to remove the "reasonable foreseeability" requirement, allowing people who are not at the end of life to qualify.

  • MAiD for minors and those suffering solely from mental illness (e.g., dementia) has been delayed.

Criminal Law and Disability: Failure to Care for Dependent Persons

• Failure to Provide Necessaries of Life: This is a criminal offence under Section 215 of the Criminal Code, punishable by up to five years in jail.

  • Cases of Child and Elder Abuse: Some children and elderly individuals suffer from neglect when caregivers fail to provide necessary medical care, leading to serious health consequences.

• Case Study – R v. Stephan (2012): The death of Ezekiel Stephan, a 19-month-old, from bacterial meningitis due to parental neglect of necessary medical care, led to a criminal trial. The parents, who relied on alternative medicine and refused vaccination, were found guilty initially, but the Alberta Court of Appeal later overturned the verdict. The case illustrates the tension between parental rights and obligations to provide care.

R. v. Stephan Case

Case Overview:

• Incident: Ezekiel Stephan, a child in Alberta, died in March 2012 due to a lack of medical care for a severe illness (later identified as bacterial meningitis). His parents, David and Collet Stephan, opted for homeopathic and natural remedies instead of taking him to the hospital, resulting in his death from brain damage caused by lack of oxygen.

• Main Legal Issue: Whether the parents' failure to seek necessary medical care constituted a criminal offense under section 215 of the Criminal Code, which mandates that parents or guardians provide the necessities of life for children under 16.

Key Points to Study:

1. Chronology of Events:

• Feb 27 – Mar 3, 2012: Ezekiel developed symptoms like fever, trouble breathing, and difficulty swallowing. Parents treated him with natural remedies, such as garlic, olive leaf extract, and herbal supplements. They consulted a nurse-midwife, who suspected croup.

• Mar 4 – Mar 5: Parents thought Ezekiel was improving, though he still had low energy.

• Mar 6 – Mar 8: Ezekiel’s condition worsened, showing stiffness, joint tension, and lethargy. Parents did not take him to a doctor, despite advice.

• Mar 9 – Mar 11: Stiffness increased and Ezekiel showed signs of difficulty breathing and lack of energy.

• Mar 12: Nurse-midwife suggested meningitis, but parents continued with natural remedies instead of seeking medical care. By the end of the day, Ezekiel stopped breathing.

• Mar 13: After prolonged episodes of Ezekiel not breathing, parents drove him to the hospital. He died later at Alberta Children’s Hospital.

2. Legal Concepts:

• Failure to Provide Necessaries of Life (Section 215, Criminal Code):

  • Legal duty of parents to provide necessary care, including medical treatment, if failure to do so could endanger the life or health of the child.

  • Penalty for conviction: up to 5 years in prison.

• Key Elements:

  • Actus Reus: Failure to perform the duty (providing necessary medical care).

  • Mens Rea: Intent or recklessness about the risk to the child's life or health.

  • Marked Departure: A significant deviation from the standard of care expected, which would be understood by the jury.

3. Individuals Who Could Have Alerted Authorities:

• Nurse-Midwife: Communicated with parents multiple times and had opportunities to suggest a welfare check.

• Pre-School Teacher: Was aware of Ezekiel’s symptoms and did not intervene.

• Grandfather: Did not recommend seeking professional medical help.

• Receptionist at Naturopath Clinic: Could have raised concerns about the parents’ refusal to seek medical treatment.

• Naturopath: Parents consulted the naturopath but still did not take Ezekiel to a doctor.

• Superstore Shoppers: People in the parking lot might have observed Ezekiel's condition in the vehicle, potentially prompting a call to authorities.

4. Legal Proceedings:

• First Trial (2016): The parents were found guilty of failing to provide the necessaries of life, and the case highlighted the community's moral responsibility in intervening.

• Court of Appeal (2017): The Alberta Court of Appeal upheld the conviction, but there was dissent from one judge who questioned whether the trial judge properly instructed the jury.

• Supreme Court of Canada (2018): The Court overturned the conviction, ordering a second trial due to flaws in the trial judge’s handling of the case (conflation of actus reus and mens rea).

• Second Trial (2019): The second trial concluded with a verdict of not guilty, with the judge asserting that Ezekiel’s death was not due to meningitis but rather the lack of oxygen.

• Appeals & Third Trial: The Alberta Court of Appeal ordered a new trial in 2021, and the trial was stayed in 2022 due to concerns over judicial conduct and fairness.

5. Key Legal Issues:

• Conflation of Actus Reus and Mens Rea: The issue was whether the trial judge failed to clearly explain the difference between the actus reus (failure to provide care) and mens rea (intent or recklessness) to the jury.

• Failure to Provide Medical Care: The case is central to the issue of when parents or guardians fail to seek necessary medical care, thus failing their duty under the law.

• Role of Community: The failure of community members (such as the naturopath, teacher, and other adults) to intervene in Ezekiel’s worsening condition raised questions about the community’s responsibility in child welfare cases.

6. Important Legal Principles:

• Child Welfare Laws: The Child Youth and Family Enhancement Act imposes a legal duty to report a child in need of intervention. Parents or guardians who fail to provide care can be criminally prosecuted under section 215.

• Judicial Responsibility: In cases of serious outcomes like death, judges must uphold the integrity of the justice system and give clear, impartial instructions to the jury. Misconduct or bias (as alleged in this case) can result in appeals and judicial reviews.

7. Ethical and Societal Considerations:

• Parental Autonomy vs. Child Protection: The case touches on the balance between parental rights to make medical decisions and the state’s duty to protect children from harm.

• Community's Role in Child Welfare: The case highlights that individuals and communities must intervene when they believe a child is at risk, even if the parents are reluctant to seek professional help.

8. Final Considerations:

• Dissenting Judgment: The dissent in the Court of Appeal was pivotal in questioning the trial judge’s instructions. This was key in the eventual decision to overturn the conviction by the Supreme Court of Canada.

• Expert Witness and Bias: The second trial questioned the qualifications of expert witnesses, and allegations of racial bias influenced the legal process.

Key Topics Covered

1. Failure to Care for Dependent Persons with Disabilities
   This includes the legal obligations and criminal liability related to neglect or failure to care for vulnerable individuals (children, elderly, or disabled persons), especially in cases where neglect leads to harm or death.

2. Case Studies

   • Regina v. Radita (Child Abuse)

     • Issue: Failure of parents to provide necessary care for their son Alex, who had juvenile diabetes.

     • Legal Outcome: Parents were charged with first-degree murder and unlawful confinement.

     • Key Point: The parents' failure to administer insulin and provide medical care over an extended period led to the child's death. The court ruled that the parents had foresight of the consequences of their neglect.

     • Who Could Have Helped: Pharmacist and Alex's adult siblings could have reported the situation.

   • Regina v. Peterson (Elder Abuse)

     • Issue: Dennis Peterson was responsible for his father, Arnold Peterson, who suffered from Alzheimer's. He failed to provide necessary care, leading to neglect and poor living conditions.

     • Legal Outcome: Dennis Peterson was found guilty of failing to provide necessaries of life under Section 215 of the Criminal Code.

     • Key Point: Although Dennis Peterson had power of attorney, he neglected his father's care, resulting in severe neglect and filthy living conditions.

     • Power of Attorney: Both Dennis and his sister had joint and several power of attorney for Arnold's personal care, meaning either could be fully responsible.

3. Criminal Law Obligations

   • Section 215 of the Criminal Code:

     • Imposes a legal duty on individuals (e.g., parents, guardians, caregivers) to provide the necessaries of life for those under their care.

     • Failure to perform this duty can lead to criminal charges if it endangers the life or health of the person under their charge.

4. Elder Abuse

   • Types of Abuse: Financial, emotional, physical, sexual, and neglect.

   • Common Victims: Elderly individuals, particularly those with mental or physical impairments like Alzheimer's.

   • Common Abusers: Family members, friends, caregivers, or others in positions of trust.

   • Risk Factors for Elder Abuse: History of spousal abuse, family dynamics, isolation, caregiver stress, ageism, and societal acceptance of neglect or violence.

   • Common Signs of Abuse: Depression, anxiety, confusion, unexplained injuries, poor hygiene, and fear of certain individuals.

5. Legal Considerations in Elder Abuse

   • Criminal Offenses Related to Elder Abuse:

     • Assault: Physical harm or threats to an elderly person.

     • Fraud: Financial exploitation or deceit involving the elderly.

     • Unlawful Confinement: Forcing someone to stay in a specific place against their will.

     • Administering a Noxious Substance: Giving harmful substances to an elderly person, with intent to cause harm.

6. Reporting and Addressing Elder Abuse

   • Reporting: Elder abuse is often underreported due to shame, guilt, fear, or dependence on the abuser.

   • What to Do: In cases of elder abuse, the appropriate action is to report the situation to authorities (police, local elder abuse helplines, or services).

   • Criminal Charges: Depending on the situation, criminal charges such as theft, unlawful confinement, fraud, and assault can be pursued.

Detailed Case Summaries

Regina v. Radita (Child Abuse)

• Background: Alex Radita was diagnosed with juvenile diabetes at age 3. Despite repeated medical diagnoses and hospitalizations, his parents denied his condition and failed to provide necessary medical care. They actively avoided medical intervention, resulting in Alex's untreated diabetes and eventual death at age 15.

• Key Points:

  • Alex's parents were aware of the consequences of their neglect but chose to ignore it.

  • The court emphasized the parents' lack of action over several years, despite opportunities for intervention.

  • The Supreme Court upheld the conviction of the parents.

• Learning Points: This case highlights the importance of parental responsibility in caring for children with medical conditions and the legal consequences of neglect.

Regina v. Peterson (Elder Abuse)

• Background: Arnold Peterson, an elderly man suffering from Alzheimer's, was neglected by his children, particularly his son, Dennis. The living conditions were filthy, and Arnold was frequently locked out of the house, hungry, and incontinent.

• Key Points:

  • Dennis Peterson had power of attorney but failed in his duty to care for his father.

  • Despite obvious signs of neglect, such as poor hygiene and living conditions, Dennis did not take action.

  • The trial judge found Dennis guilty beyond a reasonable doubt of neglect under Section 215 of the Criminal Code.

• Learning Points: The case illustrates the legal duty of caregivers, especially those with power of attorney, to ensure the well-being of vulnerable individuals under their care.

Legal Definitions and Key Sections

• Section 215 (Failure to Provide Necessaries of Life)

  • Subsection (1): Legal duty to provide necessaries of life to dependents (children, spouses, elderly, or individuals under one's charge due to disability or age).

  • Subsection (2): Criminal offense if the duty is not performed and it endangers or harms the person under care.

• Elder Abuse: Defined as any action or inaction that jeopardizes the well-being of an older adult. This includes emotional, physical, financial, and neglectful abuse.

Important Themes

• Legal Duty to Care: The law imposes a duty on individuals in positions of care (parents, guardians, caregivers) to ensure the health and safety of those under their charge. Failure to meet this duty can lead to serious legal consequences.

• Vulnerable Populations: Children, seniors, and individuals with disabilities are particularly vulnerable to neglect and abuse. Legal frameworks exist to protect them from harm, but reporting and intervention are often insufficient.

• Role of Community and Support Networks: In both cases (Radita and Peterson), family members, medical professionals, and community members (e.g., pharmacists, neighbors) had opportunities to intervene but did not act in time. This highlights the importance of vigilance and reporting in cases of suspected abuse or neglect.

Key Topics:

1. Defamation and Disability

• Focus: The intersection of freedom of speech, defamation, and the rights of individuals with disabilities.
  Key Points:

  • Freedom of Expression vs. Dignity:

    • The Supreme Court has emphasized the importance of freedom of speech (Section 2(b) of the Charter), but this is balanced with the need to protect the dignity of individuals, especially those with disabilities.

    • The case under discussion involves the issue of comedians mocking individuals with disabilities, specifically celebrities, and whether this constitutes defamation or a violation of dignity under Section 10 of the Quebec Charter of Rights.

  • Defamation and Disability:

    • Style of Cause: Refers to the name or case title used in the legal dispute.

    • Facts: Case where an individual with a disability (e.g., J. Gabriel) was mocked due to his disability and celebrity status.

    • Issue: Whether mocking a person with a disability, in a public context such as comedy, violates their dignity and constitutes defamation.

    • Law: The legal principles concerning freedom of speech and defamation, as well as the rights to protection from ridicule based on disability.

    • Reasons: The court’s reasoning for its decision (such as balancing freedom of expression against individual dignity).

    • Judicial Order or Decision: What the court ordered as a result of the case.

    • What Was at Stake?:

      • The rights of people with disabilities to not be subjected to ridicule.

      • The balance between allowing free speech and protecting individuals from harmful defamation based on their disability.

    • Outcome for Disabled Individuals: Was the decision good or bad for people with disabilities? In this case, the court recognized the harm of increased stigma but also emphasized the protection of freedom of expression.

2. Residential School Denialism as an Offense

• Focus: The potential criminalization of downplaying or justifying the actions of residential schools and its connection to public incitement of hatred.
  Key Points:

  • Residential School Denialism:

    • Some argue that denying or downplaying the harms caused by residential schools should be considered an offense under the Criminal Code.

  • Public Incitement of Hatred (Section 319):

    • Section 319(1): Prohibits the public incitement of hatred by communicating statements in any public place.

    • Section 319(2.2): Prohibits statements that promote hatred against Indigenous peoples, specifically.

    • Defenses (Section 319(3.2)):

      • Truth (if the statements are proven to be true).

      • Religious opinions (based on beliefs in religious texts).

      • Public benefit (statements made with reasonable grounds for the public good).

      • Intention to remove hatred (where the aim is to highlight and remove feelings of hatred).

3. Issues Around Freedom of Speech and Disability

• Focus: Whether jokes and ridicule of individuals with disabilities violate their dignity and if comedians are protected under freedom of speech.
  Key Points:

  • Freedom of Speech and Section 2(b):

    • Section 2(b) of the Charter protects freedom of expression, including the right to make jokes or ridicule others.

    • Section 10 of the Quebec Charter addresses violations of dignity, potentially providing grounds for a lawsuit if individuals feel ridiculed due to their disability.

  • Jokes About Disability:

    • The critical issue is whether jokes made about people with disabilities, particularly those who are celebrities due to their disability, cross the line from free speech to harmful defamation.

    • Potential Harm: Increased stigma, further marginalization, and harm to the individual’s dignity.

    • Public vs. Private Speech: Public statements, including comedy, are often scrutinized for their potential harm to others, while private conversations may be less regulated.

4. Judicial Decisions on Defamation and Disability

• Focus: How courts balance freedom of expression against the dignity of people with disabilities in defamation cases.
  Key Points:

  • Mocking a Disabled Person: The issue involves whether mocking a person because of their disability, especially in a public space like comedy, constitutes a violation of their dignity and a defamation claim.

  • Judicial Outcome:

    • The court found that the disabled person was mocked and ridiculed, which led to increased stigma. The case examined whether this treatment violated their rights under the Charter.

    • Balance of Interests: Courts must balance freedom of expression (protecting comedians and free speech) with the protection of individuals' dignity, especially those with disabilities.

Defamation Case Breakdown

• Facts:

  • A disabled individual, J. Gabriel, was mocked because of his disability, which was part of his celebrity status.

  • The case explored whether such mockery violated his dignity and could be classified as defamation.

• Issue: Whether freedom of expression can be used as a defense for defamation when the target is a disabled person.

• Legal Considerations:

  • The court had to consider the protections granted under the Charter of Rights and whether the ridicule caused harm to the individual’s reputation.

• Decision:

  • The outcome was a recognition of both the harm caused by increased stigma and the importance of safeguarding freedom of expression.

  • Outcome for Disabled Individuals: The decision’s impact on disabled individuals was mixed. While it acknowledged the harm of ridicule, it also upheld the importance of free speech in public discourse.

isability and the Law - Community Rehabilitation & Disability Studies

This study guide is based on the topics discussed in your recent lectures on Legal Methods of Substitute Decision Making for Incapacitated Adults, particularly focusing on The Alberta Adult Guardianship and Trusteeship Act (AGTA). It also provides an outline for your upcoming assignment on presenting a statute or regulation.

Key Topics

1. The Alberta Adult Guardianship and Trusteeship Act (AGTA)

The AGTA provides a legal framework for making decisions on behalf of adults who are unable to make personal decisions due to incapacity. It is critical for understanding how the law provides assistance to vulnerable adults while protecting their autonomy.

• Name of Act: Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 (AGTA).

• Purpose of the Act:

  • Designed to support adults who need assistance with personal decision-making, such as medical care, living arrangements, and interactions.

  • It helps protect vulnerable adults from exploitation and predatory behavior.

2. Key Concepts and Legal Methods

Legal Methods of Making Decisions:

• Supported Decision-Making: For adults who can understand decisions but need help with understanding information, making decisions, or communicating those decisions.

• Co-Decision-Making: For individuals whose capacity is significantly impaired, a co-decision-maker shares decision-making authority.

• Guardianship: Appointed when an individual is deemed incapable of making certain personal decisions; the guardian acts in the best interests of the adult.

Key Elements in the AGTA:

• Capacity (Section 1(d)): An adult’s ability to understand information and appreciate the consequences of decisions.

• Communication (Section 2(b)): The adult can communicate in any way that allows them to be understood.

• Autonomy Preservation (Section 2(c)): The law mandates the least restrictive methods to assist decision-making.

• Best Interests of the Adult (Section 2(d)): Decisions must align with the known wishes, values, and beliefs of the adult when they had capacity.

3. Specific Provisions of the AGTA

• Supported Decision-Making (Division 1):

  • An adult may appoint 1-3 supporters to assist them with decision-making.

  • Supporters can help access information, assist in making decisions, and communicate decisions to others.

• Co-Decision-Making (Division 2):

  • For adults who require more significant assistance but still maintain some capacity to make decisions. The appointed co-decision-maker shares decision-making authority with the adult.

• Guardianship (Division 3):

  • A guardian is appointed for adults who cannot make decisions about specific personal matters. The guardian is responsible for making decisions in the adult’s best interests.

  • Court Application (Section 26(1)): Applicants must provide a capacity assessment report, a guardianship plan, and any prescribed documents.

  • The Court may appoint a guardian only if:

    • The adult lacks capacity for personal matters.

    • Less intrusive measures were considered but found ineffective.

    • It is in the best interests of the adult.

4. Penalties and Offenses under the AGTA

The AGTA has clear penalties for non-compliance and abuse by supporters, co-decision-makers, guardians, or trustees:

• Offense for Supporters (Section 86(1)): A supporter who contravenes the statute may face charges.

• Co-Decision-Maker Offense (Section 86(2)): Serious harm or improper handling of personal information may result in criminal charges.

• General Offense (Section 86(5)): A fine of up to $10,000 may be imposed on individuals who violate the statute.