ARCHIVED - Legal Analysis of Issues Pertaining to People with Mental Disorders in Contact with the Criminal Justice System: Framework Overview

1.1 Literature Overview

The purpose of this report is to provide an overview of the law governing the interplay between the police and the mentally disordered. In this framework overview, the statutory and case law pertinent to this interplay will be outlined. The framework will also begin to draw together relevant legal academic commentary on the topic.

a. Canadian Legislation

Police interaction with mentally disordered individuals arises in a number of contexts. Depending on the situation, differing legal issues are likely to arise.

Among the various incidents likely to draw police attention, the following are herein addressed:

1. Police called to intervene in a situation involving an apparently mentally disordered subject
2. Police arrest of an individual for an offence, identified at that time to possibly suffer from a mental disorder
3. Individual in police cells identified as possibly suffering from a mental disorder
4. Police called to a hospital to assist with an apparently mentally disordered individual
5. Police asked to release information pertaining to an individual who appears to suffer from a mental disorder

Such incidents raise a variety of legal issues. An attempt will be made in subsequent versions of this report to canvas as many of these as possible. At present, the focus will be on the first of these.

A police call to intervene with an apparently mentally disordered individual gives rise to a number of possibilities involving the exercise of discretion that are affected by the law. Among the major options considered in such circumstances will be (1) arrest and process for an offence, (2) apprehension with a view to hospitalization, and (3) informal disposition.

Arrest under the Criminal Code

Police powers of arrest for an offence are set out in the Criminal Code. These powers apply irrespective of whether a person is apparently mentally disordered or not. As a result of the combined effect of ss. 494 and 495, the police have wide-ranging arrest powers where they find someone committing an offence, and supplementary power where they have reasonable grounds to believe a person has committed or is about to commit an indictable offence.

Individuals brought into custody under the authority of these provisions may, in some circumstances, be held in custody until appearing before a justice for a show cause hearing. Persons apparently mentally disordered may be transferred to the mental health system after being remanded into custody in accordance with transfer provisions found in the various mental health statutes.^{Footnote 1}

Arrest under the Code for Breach of the Peace

Section 31 of the Criminal Code empowers police officers to arrest individuals found committing a breach of the peace and individuals believed to be about to join in or renew a breach of the peace. Many police-involved incidents in which an individual is apparently mentally disordered could give rise to the exercise of this arrest power. Once in custody, police may decide to informally resolve the case, or resort to a process under the provincial/territorial mental health legislation to convey the subject to a hospital or psychiatric facility for assessment.

Investigative Detention

The initial detention of an apparently mentally disordered individual may arise under the exercise of police powers governing investigative detention. The Supreme Court of Canada has recently recognized a power in the police to detain individuals for investigative purposes.^{Footnote 2} Once the circumstances reveal the situation involves a mentally disordered individual, the provisions of the mental health legislation would come into play.

Apprehension under Mental Health Legislation

Each province and territory has legislation permitting the police to bring apparently mentally disordered people into custody for the purposes of initiating an inquiry into their mental state. Typically, the legislation allows the police to bring individuals into police custody, and then requires them to convey the subject to a hospital or psychiatric facility for assessment by medical personnel.

The legislation in most provinces sets out two procedures, one involving planned police intervention, the other involving emergency police intervention. Planned intervention strategies usually involve the issuance of a court order mandating the police to bring an individual into custody. By contrast, emergency crisis intervention options typically entitle the police to bring an individual into custody without prior judicial authorization.

Crisis Intervention: Risk of Harm to Self or Others

Each province and territory has its own legislative scheme governing bringing apparently mentally disordered individuals into custody without prior judicial authorization.^{Footnote 3} Usually, the mental health legislation permits the police to take apparently mentally disordered individuals into custody without warrant where there is a fear for the life or safety of the subject, or a fear they are a risk to cause harm to others. In this way, the legislative schemes blend a traditional police power permitting intervention in individual liberty where there is a clear risk of a subject causing harm to others, with a parens patriae power permitting interference with individual liberty for welfare purposes. Interfering with liberty to reduce the risk of harm to self is a less clearly justifiable form of state action; however, it is apparent that this is necessary to enhance the ultimate freedom of the individuals directly affected by authorizing action that will ensure their long-term freedom, given the potential for a self-destructive individual to make far-reaching, potentially dangerous and irreversible decisions if left alone.^{Footnote 4}

Harm to Self

Different terminology is used in the various provinces regarding the scope of the police power. While some jurisdictions use vague criteria justifying detention, such as "danger," others use more specific descriptive criteria such as "threatened bodily harm."

For example, the B.C. Mental Health Act provides for apprehension if a person "is acting in a manner likely to endanger that person's own safety..." Prince Edward Island, similarly permits police intervention if hospitalization is required and it is "the interests of the person's own safety." The Alberta scheme speaks of apprehension where the subject is in "a condition presenting a danger to the person..." and "should be examined in the interests of the person's own safety..." In contrast, Manitoba, the North West Territories, New Brunswick, Ontario, the Yukon and Nova Scotia, authorize apprehension if a person "has threatened or attempted to cause bodily harm to himself..."^{Footnote 5} In Newfoundland and Labrador the wording permits intervention if the subject "has caused or is likely to cause harm to himself..."

In Saskatchewan, a unique legislative approach is found. It authorizes the apprehension of an individual who appears to be suffering from a mental disorder and is "causing a disturbance by acting in a manner that would normally be considered disorderly." This makes no reference to danger or risk of harm to oneself.

It is also noteworthy that Quebec only allows police intervention at the request of a crisis intervention unit. Where such a unit "considers that the mental state of the person presents a grave and immediate danger to himself..." the police may intervene and take a person against their will to an institution. A crisis intervention unit is defined in the Act as a "unit designed to take action in crisis situations pursuant to the mental health service organization plans provided for by the legislation respecting health services and social services."

Harm to Others

The legislation in each province also speaks to the power to apprehend individuals who are apparently mentally disordered and believed to be a risk of harming others. As with the "harm to self" provisions, the "harm to others" provisions include some legislative schemes that are more vaguely worded than others.

In British Columbia, the legislation allows the apprehension of an apparently mentally disordered individual who is "acting in a manner likely to endanger... the safety of others." Prince Edward Island, similarly permits police intervention if hospitalization is required and it is "the interests of... the safety of others." The Alberta scheme allows apprehension where the subject is in "a condition presenting a danger to... others" and "should be examined in the interests of... the safety of others..." As with the harm to self provisions, the harm to others criteria in Manitoba, the North West Territories, New Brunswick, Ontario, the Yukon and Nova Scotia may be contrasted to those above. They authorize apprehension if a person "has behaved violently towards another person or caused another person to fear bodily harm from him or her..."^{Footnote 6} In Newfoundland and Labrador the wording permits intervention if the subject "has caused or is likely to cause harm to... another"

Again, it should be noted that Saskatchewan takes a unique approach. As noted above, it authorizes the apprehension of an individual who appears to be suffering from a mental disorder and is "causing a disturbance by acting in a manner that would normally be considered disorderly." This makes no reference to danger or risk of harm to others, but may include situations in which the disturbance that is caused reflects a risk of harm to others.

As noted above, Quebec's mental health legislation only allows police intervention at the request of a crisis intervention unit. Where such a unit "considers that the mental state of the person presents a grave and immediate danger to... others..." the police may intervene and take a person against their will to an institution.

Inability to Care for Oneself

In some provinces, a broader power is granted to the police, empowering them to take individuals into custody who are not necessarily a risk of direct physical harm to themselves or others, but because the subject is in need of care for their own well-being.

In Manitoba, for example, the Mental Health Act permits the police to take a subject into custody who "has shown a lack of competence to care for himself or herself." Similar wording is found in the legislation for New Brunswick, North West Territories, and Ontario. In Newfoundland, police may apprehend a subject who "is likely to suffer substantial physical or mental deterioration or serious physical impairment." Meanwhile, Nova Scotia allows apprehension if a person "as a result of mental disorder, is likely to suffer serious physical impairment or serious mental deterioration, or both..." In the Yukon Territory, the following provision supplements the power to arrest for risk of harm to self or others:

8 (1) A peace officer may take a person into custody if at least one of the following conditions applies...

(b) The peace officer believes on reasonable grounds that the person as a result of the mental disorder shows or has recently shown a lack of ability to care for themselves and the police officer further believes on reasonable grounds that the person as a result of the mental disorder is likely to suffer impending serious physical impairment.

This allows for police intervention in non-crisis situations, where the mental disorder results in an inability in the individual to properly care for oneself.

Provinces which do not have such a provision^{Footnote 7} arguably allow for police intervention in such circumstances under the provisions governing risk of harm to self. However, it may be desirable for legislation to specifically set out powers governing these circumstances as courts have historically been reluctant to infer police powers where they are not clearly articulated in statute.^{Footnote 8}

Offence to Others?^{Footnote 9}

Saskatchewan has a unique statutory framework governing the emergency apprehension of the mentally disordered. As noted above, it differs from the other jurisdictions in that it refrains from referring to dangerousness or safety risks, and focuses on behavioural disturbance. The relevant provision in their Mental Health Services Act provides as follows:

20(1) Where a constable or peace officer has reasonable and probable grounds to believe that a person in a public place is:

• (a) suffering from a mental disorder; and
• (b) causing a disturbance by acting in a manner that would normally be considered disorderly;

he may apprehend the person without a warrant and convey him as soon as practicable to a place where he may be examined by a physician.

(2) A person apprehended pursuant to subsection (1) shall be examined by a physician as soon as practicable and in all cases within 24 hours of his apprehension.

This represents a break from the rest of the country^{Footnote 10} where some element of dangerousness or risk must be clearly identified before powers of apprehension are activated. The Saskatchewan legislation permits police action where disorderly conduct amounting to a disturbance by an apparently mentally disordered individual is encountered.

Planned Intervention: Prior Authorization

In each province, the emergency arrest power is supplemented with provisions authorizing the police to take a person into custody following prior authorization. In some provinces, prior authorization takes the form of a warrant or similar document issued by a judge. For example, in Newfoundland and Labrador, the Mental Health Care and Treatment Act provides for individuals to apply to court:

19. (1) Anyone who has reasonable grounds to believe that a person

• (a) has a mental disorder;
• (b) as a result of the mental disorder has caused or is likely to cause harm to himself or herself or others or is likely to suffer substantial physical or mental deterioration or serious physical impairment; and
• (c) refuses to submit to a psychiatric assessment may apply to a judge for an order for a psychiatric assessment of the person.

(2) An application under subsection (1) shall be in writing and under oath or affirmation and state reasons in support and may be made without notice to another person.

(3) A judge, after considering the allegations of the person making the application and the evidence of any witnesses, may issue an order for an involuntary psychiatric assessment of a person where the judge is satisfied that

• (a) the allegations of the applicant are founded; and
• (b) the person who is the subject of the application
  • (i) has a mental disorder,
  • (ii) requires a psychiatric assessment to determine whether he or she should be admitted to a psychiatric unit as an involuntary patient, and
  • (iii) has refused or is likely to refuse a psychiatric assessment...

Where a judge issues an order for an involuntary psychiatric assessment, the police are authorized to apprehend the individual and convey them to a facility for psychiatric assessment. Section 19 continues as follows:

19. (4) An order granted under this section

• (a) shall direct a peace officer to apprehend and convey the person who is named or described in the order to a facility for an involuntary psychiatric assessment; and
• (b) is sufficient authority
  • (i) for the peace officer to observe, detain and control the person named or described in the order during the apprehension and conveyance, and
  • (ii) for a person described in paragraph 17(2)(a) to conduct an involuntary psychiatric assessment.

(5) An order under subsection (3) shall expire 7 days after the date on which it is made...

Prior judicial authorization is also found in the legislative schemes of several other provinces.^{Footnote 11}

In other provinces, the prior authorization may take the form of a certificate prepared by a medical practitioner. For example, in British Columbia, s. 22 governing involuntary admissions, makes provision for a person who is the subject of a medical certificate to be apprehended, transported, admitted and detained in a designated facility.^{Footnote 12}

The legislation in Manitoba, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Saskatchewan, and the Yukon Territory allow for both prior judicial authorization and prior physician certificates to justify police action.

Entry into Premises to Effect an Arrest

Mental Health legislation is often silent with regard to the entry into premises in order to bring the subject into custody.

This is in contrast to provisions pertaining to arrest for offences under the Criminal Code, which allow for the police to obtain a warrant to enter premises in order to effect an arrest,^{Footnote 13} and in exceptional circumstances, to enter premises without warrant in order to bring an individual into custody.^{Footnote 14}

Furthermore, provincial legislation in other areas provides for entry into dwellings in order to conduct investigations or take individuals into custody. For example, the B.C. Adult Guardianship Act^{Footnote 15} provides for an investigative agency conducting inquiries into abuse of neglected adults to enter premises. Under the B.C. Child, Family and Community Support Act,^{Footnote 16} police may enter premises in order to take custody of a child who is the subject of an inquiry to determine whether they are in need of protection:

27 (1) A police officer may, without a court order, take charge of a child if the police officer has reasonable grounds to believe that the child's health or safety is in immediate danger.

(2) A police officer may, without a court order and by force if necessary, enter any premises or vehicle or board any vessel for the purpose of taking charge of a child under subsection (1) if

• (a) the police officer has reasonable grounds to believe that the child's health or safety is in immediate danger, and
• (b) a person denies the police officer access to the child or no one is available to provide access.

An exception to the general silence regarding power of the police to enter premises to deal with an apparently mentally disordered individual can be found in the legislation of several provinces, including Manitoba, which allows as follows:

12(2) A peace officer may take any reasonable measures when acting under this section or section 9 or 11 or subsection 44(1) or 48(2), including entering any premises to take the person into custody.

Similarly, Prince Edward Island's legislation makes this allowance,^{Footnote 17} and the legislation of Newfoundland and Labrador provides as follows:

21. (1) Where a person is apprehended and conveyed to a facility for an involuntary psychiatric assessment under section 18, 19 or 20,

(a) the person effecting the apprehension and detention may take reasonable measures, including the entering of premises and the use of physical restraint, to apprehend the person and to take him or her into custody

Jurisdictions which appear to be without such express authorization include British Columbia, Alberta, New Brunswick, North West Territories, Nova Scotia, Ontario, Quebec, Saskatchewan, and the Yukon Territory.

It would be preferable to see an express grant of authority to the police to enter premises in order to bring a mentally disordered individual into custody.

Protection from Liability

The various provincial mental health laws typically exempt police officers from civil liability arising from the exercise of their arrest powers under the Act. For example, the B.C. Mental Health Act provides as follows:

16 A person is not liable in damages as the result of doing any of the following in good faith and with reasonable care:

• (a) making an application or laying an information;
• (b) requesting that a person be admitted to, or admitted to and detained in, a designated facility;
• ...
• (f) apprehending, transporting or taking charge of a person on the authority of
  • (i) a medical certificate, or
  • (ii) if a peace officer, a warrant;
• (f.1) if a police officer or constable, apprehending a person under section 28 (1)

The relevant provisions excluding liability for the police take on different wording, but appear to achieve the same effect.^{Footnote 18}

Rights of Apprehended Individuals

Individuals brought into police custody under the authority of mental health legislation are unquestionably detained or arrested. Accordingly, all such individuals are guaranteed rights under s. 10 of the Canadian Charter of Rights and Freedoms. These include the right to be informed of the reasons for the arrest or detention.^{Footnote 19} Furthermore, all such individuals have the right to retain and instruct counsel without delay, and the right to be informed of that right.^{Footnote 20} Additionally, arrested or detained individuals have a Charter right to challenge the validity of their detention by way of habeas corpus.^{Footnote 21} While these rights are most commonly encountered in the criminal process, they undoubtedly apply in the mental health context as well. Some provinces have supplemented these Charter-based rights with rights accruing under the mental health legislation. For example, Newfoundland has incorporated a provision into their Mental Health Care and Treatment Act identifying rights of individuals brought into custody by the police:

10. Where a person is apprehended by a peace officer under the authority of subsection 18(2) or 19(4) or section 20, the peace officer shall promptly inform the person

• (a) of the reasons for his or her apprehension or detention;
• (b) that he or she is being taken to a facility for an involuntary psychiatric assessment; and
• (c) that he or she has the right to retain and instruct counsel without delay.

The Acts in several other provinces impose duties on the police vis-à-vis the individuals they bring into custody under mental health legislation.^{Footnote 22}

b. Relevant Jurisprudence

[search of the case law and its analysis is still to be conducted]

c. Legal Academic Commentary

A search of the academic legal commentary has produced very little pertinent material from Canada. A brief bibliography is attached as Appendix B. [summary of the major contributions is still to be conducted].

1.2 Framework Overview

a. Relevant Materials

This report represents the starting point for the analysis of the issues surrounding the interaction between the police and other criminal justice agents, and mentally disordered individuals.

Some additional analysis of the mental health legislation across the country remains to be done.

A review of the pertinent jurisprudence governing this area of social interaction also remains to be done.

A cross-jurisdictional comparison drawing on developments from the U.S. and various Commonwealth jurisdictions also remains to be done.

A further search of pertinent critical and academic commentary on the police-mentally disordered interaction remains to be performed. An analysis of those sources which have been identified (listed in Appendix B) also remains to be done.

A look at diversion alternatives, including the evolving use of Mental Health Courts (and Community Courts) across the country will also form part of the final report.

b. Key Trends and Issues

Once the various sources outlined above have been identified, key trends and emerging issues will be identified. A review of the prevailing mental health legislation shows considerable lack of uniformity in legal standards. Some provinces appear to be actively involved in reviewing and updating their mental health legislation.^{Footnote 23}

c. Challenges to be Addressed

Once the central issues and trends are fully developed, it is envisioned that the report will identify gaps in the legislation, best practices being employed, and any need to revise governmental policies pertaining to the mentally disordered.

Appendix A : Legislative Provisions Pertaining to Emergency Apprehension by the Police

British Columbia: Mental Health Act, R.S.B.C. 1996, c. 288

Emergency procedures

28 (1) A police officer or constable may apprehend and immediately take a person to a physician for examination if satisfied from personal observations, or information received, that the person

• (a) is acting in a manner likely to endanger that person's own safety or the safety of others, and
• (b) is apparently a person with a mental disorder.

(2) A person apprehended under subsection (1) must be released if a physician does not complete a medical certificate in accordance with section 22 (3) and (4).

(3) Anyone may apply to a judge of the Provincial Court or, if no judge is available, to a justice of the peace respecting a person if there are reasonable grounds to believe that section 22 (3) (a) (ii) and (c) describes the condition of the person.

(4) On application under subsection (3), the judge or justice may issue a warrant in the prescribed form if satisfied that

• (a) the applicant has reasonable grounds to believe that subsection (3) applies to the person respecting whom the application is made, and
• (b) section 22 cannot be used without unreasonable delay.

(5) A warrant issued under subsection (4) is authority for the apprehension of the person to be admitted and for the transportation, admission and detention of that person for treatment in or through a designated facility.

(6) On being admitted as described in subsection (5), a patient must be discharged at the end of 48 hours detention unless the director receives 2 medical certificates as described in section 22 (3).

(7) On the director receiving 2 medical certificates as described in subsection (6), section 22 (6) and (7) applies to the patient.

Alberta: Mental Health Act, R.S.A. 2000, c. M-13

Mental Health Amendment Act, 2007, c. 35 awaiting proclamation (numerous changes throughout)

Peace officer's power

12 (1) When a peace officer has reasonable and probable grounds to believe that

• (a) a person is suffering from mental disorder,
• (b) the person is in a condition presenting a danger to the person or others,
• (c) the person should be examined in the interests of the person's own safety or the safety of others, and
• (d) the circumstances are such that to proceed under section 10 would be dangerous,
• the peace officer may apprehend the person and convey the person to a facility for examination.

(2) While a person is being conveyed to a facility under subsection (1), the authority in that subsection is sufficient authority to care for, observe, assess, detain and control the person.

(3) When a peace officer conveys a person to a facility under this section, the peace officer shall complete a statement in the prescribed form for the use of the facility, setting out

• (a) the name of the person conveyed, if known,
• (b) the date, time and place at which the person was apprehended, and
• (c) the grounds on which the peace officer formed the peace officer's belief under subsection (1).

1988 cM-13.1 s12

Manitoba: Mental Health Act, C.C.S.M., c. M 110

12(1) A peace officer may take a person into custody and then promptly to a place to be examined involuntarily by a physician if

• (a) the peace officer believes on reasonable grounds that the person
  • (i) has threatened or attempted to cause bodily harm to himself or herself,
  • (ii) has behaved violently towards another person or caused another person to fear bodily harm from him or her, or
  • (iii) has shown a lack of competence to care for himself or herself;
• (b) the peace officer is of the opinion that the person is apparently suffering from a mental disorder of a nature that will likely result in serious harm to the person or to another person, or in the person's substantial mental or physical deterioration; and
• (c) the urgency of the situation does not allow for an order for an examination under section 11.

12(2) A peace officer may take any reasonable measures when acting under this section or section 9 or 11 or subsection 44(1) or 48(2), including entering any premises to take the person into custody.

Newfoundland & Labrador: Mental Health Care and Treatment Act S.N.L. 2006 c. M-9.1

20. Where a peace officer has reasonable grounds to believe that a person

• (a) has a mental disorder;
• (b) as a result of the mental disorder has caused or is likely to cause harm to himself or herself or another or is likely to suffer substantial physical or mental deterioration or serious physical impairment; and
• (c) refuses to submit to a psychiatric assessment and it is not feasible in the circumstances to make an application for an order under section 19, the peace officer may immediately apprehend that person and convey him or her to a facility for an involuntary psychiatric assessment.

2006 cM-9.1 s20

New Brunswick: Mental Health Act, R.S.N.B. 1973, c. M-10

10 If a peace officer has reasonable grounds to believe that a person

• (a) has threatened or attempted, or is threatening or attempting, to cause harm to himself or herself,
• (b ) has behaved or is behaving in a way that causes or is likely to cause another person harm or is causing another person to fear harm from the person,
• (c) has shown or is showing a lack of competence to care for himself or herself, and if the peace officer is of the opinion that the person is apparently suffering from a mental disorder of a nature or degree that likely will result in harm to the person or harm to another person and that it would not be reasonable to proceed in accordance with section 9, the peace officer
• (d) may take the person into custody and take the person to a medical facility, physician's office or psychiatric facility for examination, and
• (e) may require any assistance the peace officer considers necessary from any other peace officer or other person.

1969, c.13, s.10; 1985, c.4, s.43; 1989, c.23, s.5.

Northwest Territories (& Nunavut): Mental Health Act, R.S.N.W.T. 1988, c. M-10

11. (1) Where a peace officer has reasonable and probable cause to believe that a person

• (a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself,
• (b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her, or
• (c) has shown or is showing a lack of competence to care for himself or herself, and, if based on the information before the peace officer, the peace officer is of the opinion that the person is apparently suffering from a mental disorder of a nature or quality that will likely result in
• (d) serious bodily harm to that person,
• (e) serious bodily harm to another person, or
• (f) imminent and serious physical impairment of that person,

and the circumstances are such that to proceed under section 9 would be unreasonable or would result in a delay that would likely result in serious bodily harm to that person or to another person or in imminent and serious physical impairment of that person, the peace officer may take that person in custody without delay to a medical practitioner or a hospital within the Territories for psychiatric assessment by a medical practitioner.

Nova Scotia: Involuntary Psychiatric Treatment Act, S.N.S. 2005, c. 42

14 A peace officer may take a person into custody and take the person forthwith to a place for a medical examination by a physician if the peace officer has reasonable and probable grounds to believe that

• (a) the person apparently has a mental disorder;
• (b) the person will not consent to undergo medical examination;
• (c) it is not feasible in the circumstances to make application to a judge for an order for a medical examination pursuant to Section 13; and
• (d) the person,
  • (i) as a result of the mental disorder, is threatening or attempting to cause serious harm to himself or herself or has recently done so, has recently caused serious harm to himself or herself, is seriously harming or is threatening serious harm towards another person or has recently done so,
  • (ii) as a result of the mental disorder, is likely to suffer serious physical impairment or serious mental deterioration, or both, or
  • (iii) is committing or about to commit a criminal offence.

Ontario: Mental Health Act, R.S.O. 1990, c. M.7

17. Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

• (a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
• (b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
• (c) has shown or is showing a lack of competence to care for himself or herself, and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
• (d) serious bodily harm to the person;
• (e) serious bodily harm to another person; or
• (f) serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician. 2000, c. 9, s. 5.

Prince Edward Island: Mental Health Act, R.S.P.E.I. 1988, c. M-6.1

8. (1) A peace officer may take a person into custody and take him or her forthwith to a place for involuntary psychiatric examination if the peace officer has reasonable grounds to believe that

• (a) the person is suffering from mental disorder of a nature or degree so as to require hospitalization in the interests of the person's own safety or the safety of others;
• (b) the person is refusing or unable to consent to undergo psychiatric examination; and
• (c) the urgency of the situation does not allow for a judicial order for psychiatric examination.

Quebec: An Act respecting the Protection of persons whose mental state presents a danger to themselves or to others , R.S.Q. c. P-38.001

Power of peace officer.

8.  A peace officer may, without the authorization of the court, take a person against his will to an institution described in section 6

 1) at the request of a member of a crisis intervention unit who considers that the mental state of the person presents a grave and immediate danger to himself or to others;

2) at the request of the person having parental authority, the tutor to a minor or any of the persons mentioned in article 15 of the Civil Code, where no member of a crisis intervention unit is available in due time to assess the situation. In such a case, the peace officer must have good reason to believe that the mental state of the person concerned presents a grave and immediate danger to himself or to others.

Examination.

Subject to the provisions of section 23 and to more pressing medical emergencies, the institution to which the person is brought must take charge of the person upon arrival and have the person examined by a physician, who may place the person under preventive confinement in accordance with section 7.

"crisis intervention unit".

In this section, "crisis intervention unit" means a unit designed to take action in crisis situations pursuant to the mental health service organization plans provided for by the legislation respecting health services and social services.

1997, c. 75, s. 8.

Saskatchewan: Mental Health Services Act, C.S.S., c. M-13.1

20(1) Where a constable or peace officer has reasonable and probable grounds to believe that a person in a public place is:

• (a) suffering from a mental disorder; and
• (b) causing a disturbance by acting in a manner that would normally be considered disorderly;

he may apprehend the person without a warrant and convey him as soon as practicable to a place where he may be examined by a physician.

(2) A person apprehended pursuant to subsection (1) shall be examined by a physician as soon as practicable and in all cases within 24 hours of his apprehension.

Yukon: Mental Health Act, R.S.Y. 2002, c. 150

8(1) A peace officer may take a person into custody if at least one of the following conditions applies

• (a) The peace officer believes on reasonable grounds that the person as a result of a mental disorder
  • (i) is threatening or attempting to cause bodily harm to themselves or has recently done so,
  • (ii) is behaving violently towards another person or has recently done so, or
  • (iii) is causing another person to fear bodily harm or has recently done so,
• and the peace officer further believes on reasonable grounds that the person as a result of the mental disorder is likely to cause serious bodily harm to themselves or to another person; or
• (b) The peace officer believes on reasonable grounds that the person as a result of the mental disorder shows or has recently shown a lack of ability to care for themselves and the peace officer further believes on reasonable grounds that the person as a result of the mental disorder is likely to suffer impending serious physical impairment

(2) A peace officer who has taken someone into custody pursuant to subsection (1), shall immediately take that person to a physician or a health facility and shall

• (a) provide the physician or person in charge of the health facility with a written statement setting out the circumstances that led them to take the person into custody; and
• (b) remain at the place of examination and retain custody of the person until the examination under section 10 is completed, or the physician or health facility accepts custody of the person. S.Y. 1989-90, c.28, s 8.

Appendix B: References

Brown, Katherine and Erin Murphy "Falling through the Cracks: The Quebec Mental Health System" (2000) 45 McGill L.J. 1037-1079

Cotton, Dorothy "The attitudes of Canadian police officers toward the mentally ill" International Journal of Law and Psychiatry, Volume 27, Issue 2, March-April 2004, Pages 135-146

Davis, Simon "Assessing the 'Criminalization' of the Mentally Ill in Canada" (1992) 37 Canadian Journal of Psychiatry 532

Ginn, Diana "Obtaining Substitute Consent to Treatment in Nova Scotia: The Law, The Practice and the Problems" (1996) 5 Health L. Rev. No. 1, 6-11

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