The State and Mental Health: Legislation and Police Intervention

By Rowan Hickie

Source: Canva/Kindel Media

The intersection of mental health and the justice system in Canada has drawn increasing attention. Individuals experiencing mental health challenges often come into contact with state authorities, including law enforcement and healthcare providers. These encounters raise complex questions about balancing public safety with respect for autonomy, dignity, and access to care.

Legal and Human Rights Frameworks

Canada’s legal landscape around mental health is complex. The Constitution Act of 1867 does not explicitly assign health to either the federal or provincial government, resulting in overlapping jurisdictions and uneven implementation. Similarly, the Charter of Rights and Freedoms (the Charter) does not guarantee a specific right to health or healthcare. However, both federal and provincial laws affirm equality, prohibit discrimination, and recognize the importance of access to mental health services.

In Chaoulli v Quebec (Attorney General), the Supreme Court of Canada held that while the Charter does not create an explicit right to healthcare, any healthcare system established by a government must comply with Charter protections.

Internationally, the Convention on the Rights of Persons with Disabilities (CRPD) recognizes mental health as part of the right to the highest attainable standard of health. It emphasizes autonomy, dignity, and inclusion, and challenges coercive practices such as forced institutionalization or involuntary treatment. Although not directly enforceable, the CRPD guides Canada toward rights-based, equitable mental health policy.

Provincial Mental Health Legislation

 Each province governs mental health through its own legislation. Alberta’s Mental Health Act allows for involuntary hospital admission when a person poses serious risk or faces significant deterioration, with two professionals required to authorize admission. A 2020 amendment introduced new safeguards, including a requirement that hospitalization must have a clear therapeutic benefit.

British Columbia’s Mental Health Act employs a deemed consent model, where individuals detained involuntarily may be treated without their express consent. This model has faced constitutional scrutiny, especially when compared to provinces like Ontario’s Mental Health Act, which relies on substitute decision-makers and explicit consent frameworks for treatment authorization. Nova Scotia’s Involuntary Psychiatric Treatment Act stands out for its explicit reference to the CRPD and grounding its provisions in patient-centred, rights-based principles.

Police have wide powers under provincial laws to detain and transport individuals believed to pose a risk due to mental disorder, sometimes without a warrant. Section 25 of the Criminal Code also authorizes proportionate force when officers act lawfully. These provisions make police first responders in most crises, despite limited mental health training.

Policing and Crisis Response

Police involvement in mental health calls often blurs the line between care and enforcement.

The RCMP’s 2023 Police Intervention Report found that Mental Health legislation-related incidents were the second most common reason for police intervention, accounting for 11 percent of all cases. A CBC investigation revealed that between 2000 and 2018, over 460 Canadians died during police encounters, approximately 70 percent of whom were experiencing mental illness or substance use issues.

In 2020, Chantel Moore, a 26-year-old Indigenous woman, was fatally shot by police during a wellness. Critics argue police are ill-equipped to provide therapeutic care and that coercive interventions can escalate crises, particularly in marginalized communities.

Several provinces now pilot alternative models. Alberta’s Police and Crisis Team pairs officers with mental health professionals to jointly respond to calls involving mental illness, aiming to divert individuals from hospitals or the justice system. Calgary’s Community Mobile Crisis Response program takes this further by dispatching clinicians and peer-support workers rather than police to non-violent mental health and substance-use crises.

Other jurisdictions, including Vancouver and Toronto, have launched civilian-led crisis teams that respond to non-violent calls without police involvement. Together, these initiatives reflect a shift toward community-based, trauma-informed, and rights-focused crisis response.

Charter Rights and Mental Health Legislation

Mental health legislation engages several Charter rights. In JH v Alberta (Minister of Justice and Solicitor General), the Court of Appeal found that the Mental Health Act violated section 7 (life, liberty, and security of the person), section 9 (freedom from arbitrary detention), and section 10(b) (right to counsel), holding that the legislation was overly broad and procedurally unfair. This landmark decision prompted significant legislative reform in Alberta, including narrowed detention criteria and improved procedural protections.

The JH decision illustrates how mental health laws engage several Charter rights simultaneously. Section 7 is engaged when individuals are detained or treated without consent, depriving them of control over their bodies and decisions about care. British Columbia’s “deemed consent” model exemplifies this tension, as it removes meaningful choice and undermines personal autonomy. Section 9 applies to police apprehensions recognizing that deprivation of liberty in this context must not be arbitrary. The lack of judicial oversight and reliance on officers’ subjective judgment raise concerns about fairness and proportionality, especially when systemic bias or stigma influence decision-making.

Section 15, which guarantees equality rights, is also central. Mental health laws that single out people with mental disabilities for coercive treatment, risk perpetuating stereotypes that equate mental illness with incapacity. Upholding section 15 requires ensuring that legislation and practice respect autonomy, equality, and dignity for all.

Summary

Canada’s mental health framework sits at the intersection of law, healthcare, and human rights. While existing legislation aims to protect both individuals and the public, gaps in implementation, oversight, and equity persist. The JH case and the many tragedies involving police interactions demonstrate how easily the balance between care and control can be lost.

To truly protect the rights of people in crisis, governments must move beyond enforcement-driven responses and strengthen legal safeguards that uphold autonomy, equality, and access to compassionate care. Ensuring that provincial laws align with both the Charter and human rights principles is essential to building a system that protects those most in need of support.