Upon arrest or detention, a police officer must advise a detainee of their s. 10 Charter right to retain and instruct counsel without delay. Does this right apply if a person is “apprehended” and taken involuntarily to a health facility for a psychiatric assessment? Presumably it does: if the individual is not free to leave the officer’s custody or refuse the examination, then their individual liberty is clearly suspended by a state authority. This is the very definition of a “detention” under the Charter: R v Grant. Yet, the case law implies that officers may be failing to advise Mental Health Act apprehendees of their s. 10 Charter rights, and courts may be failing to notice or comment on the Charter-infringing conduct.
In British Columbia, the authority for an officer to apprehend a person and take them for a psychiatric assessment is granted by s. 28(1) of the Mental Health Act (“MHA”). This is an “emergency procedure” which must only be employed if the officer is satisfied that the person is a danger to themselves or others, and it is apparent they are a “person with a mental disorder” as defined in s. 1 of the MHA. The officer may make this determination based on personal observations, or information received.
Very few cases have considered the implication of this provision on an accused’s Charter rights. R v Hickey is the most recent case to consider the legality of an apprehension pursuant to s. 28(1) of the MHA. The accused was apprehended under s. 28(1) of the MHA after RCMP officers received information that the accused was experiencing mental health problems, that he expressed suicidal ideations earlier that day, and that he had been apprehended under the MHA and treated at a mental health facility only one week prior. When RCMP officers located the accused, the apprehending officer handcuffed and advised the accused he was “under arrest” pursuant to the MHA. The facts are silent on whether the accused had been informed of his s. 10 Charter rights at that time, despite the officer’s misstatement that the accused was “under arrest.” The case came before the BC Provincial Court after a search of items located in the accused’s vehicle turned up a canister of cocaine and the accused was charged with possession of a controlled substance. The accused sought to have the cocaine excluded as evidence pursuant to s. 24(2) of the Charter citing violations of his s. 9 (arbitrary detention) and s. 8 (unreasonable search) Charter rights. Interestingly, the accused did not ask the court to consider whether his s. 10 rights were violated.
In his analysis, the Honourable Judge Cutler stated that whether an apprehension under s. 28(1) is a lawful exercise of police authority or an arbitrary detention infringing s. 9 of the Charter will depend on the facts and circumstances of each individual case. Similarly, whether a search of an individual’s property pursuant to an MHA apprehension violates the individual’s s. 8 Charter rights appears to be fact-specific. In the result, the court was satisfied that, based on the officer’s observations of the accused and the information received, the apprehension was an appropriate use of the authority conferred by s. 28(1) of the MHA and therefore the detention was not arbitrary. However, the search was an unreasonable violation of the accused’s s. 8 Charter right, and the evidence was excluded on that ground.