Is Section 3 of Ontario’s Substitute Decision Act unconstitutional?

In a recent Appeal court decision (2017 ONCA 516) the court lauded Section 3’s “advocacy” for her client. They had been asked to rule on when capacity was technically lost and how that relates to the “deemed ability to instruct” Section 3 counsel. That was not addressed.

Section 3 of the SDA states if a person does not have legal representation when capacity is at issue in a hearing, counsel can be appointed and the person “deemed capable to instruct counsel.”

Persons have a right to represent themselves. The Act removes that option from a person when capacity is at issue.

Once declared incapable the person cannot instruct counsel, or make any other personal choices for themselves and counsel can no longer claim lawyer/client privilege which exists solely to protect that instruction. If required, for a court hearing, a litigation guardian can be appointed.

The difference in counsel types balances the persons Section 2e ‘Bill of Rights’ rights, with their Section 7 Charter rights to self determination.

The loss of rights of necessity requires a defined technical point where that occurs, but that technical point must rests on the relative priority of the underlying fundamental rights. In this case there were 396 days between release of the capacity assessor’s report indicating full incapacity and the entry of an Order declaring incapacity, and 365 days between the Judge issuing a decision that the person was incapable and the tehnical entry of an Order to that effect. The Judge ruled that without an Order the person did no need a litigation guardian – though he knew the person was not competent to instruct counsel. Section 3 remained active throughout but did not once consult her client for instructions, while repeatedly claiming lawyer/client privilege, and repeatedly bringing motions and actions that appear inconsistent with both the SDA and the person’s instructions.

Persons thought to be incapable are vulnerable, especially under Section 3 of the Substitute Decision Act. The person does not choose or hire counsel, nor can they fire them. Both require court order. Further if they have the means the person is obligated to pay Section 3’s bills. In so doing the SDA overrides the person’s Section 7 rights to self determination before incapacity has not been declared.

Further by definition a person’s capacity becomes at issue in a hearing when either their agency over their affairs appears reduced, or the quality and consistency of their decisions appears inconsistent with their wishes and desires. Both impact the ability to give instruction. By conveying to the lawyer, the deemed capacity to instruct the Act protects the lawyer, as they cannot be questioned about the basis of their actions due to lawyer/client privilege – at the very time the person they are representing is unlikely to challenge any actions the lawyer takes while “advocating” for them.

This can be made worse if the person is also denied due process by not being served on actions or being consulted for instruction. Both occurred in this case as once appointed Section 3 was served but Section 3 never reviewed served documents with the person, or sought instructions on how to respond. And because she was not served directly she would never have known want was being ‘advocated’ in her interests.

Section 3 never reviewed any settlement issues with the person. Never reviewed the motions Section 3 launched in her name. Never consulted regarding the positions Section 3 took in court – including positions that directly contradicted the persons earlier instructions.

Is Section 3 of the Substitute Decision Act unconstitutional?

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