Mr. Conception was a mentally disordered defendant. He appeared in court in a psychotic state and was declared unfit to stand trial. At his fitness hearing, the Crown recommended a treatment order but told the court there were no Ontario forensic beds available for six days. The judge wasn’t buying it and directed the police to take Mr. Conception directly to hospital. Although the hospitals treated him, they nevertheless appealed. At stake was who gets to direct scarce mental health resources in criminal cases.
Exercising the court’s traditional role of balancing restraint and its duty to protect the vulnerable, the Court of Appeal sided with the hospitals. It said the Charter is not violated by giving the decision-making power of whether or not a person goes to jail in the hands of non-judicial authorities.
Last week, the Ontario Human Rights Commission published a comprehensive policy aimed at preventing discrimination against the mentally disordered. It recognized that people with mental illnesses continue to face “extreme stigma.” The Supreme Court in Conception has an opportunity to reduce discrimination by prioritizing the rights of the mentally disordered over the business interests of health organizations.