Police-Encounters-With-People-In-Crisis

F. The legal context
100. Before proceeding to Part 2 of the Report, which contains a detailed discussion
and analysis of the issues forming part of the Review mandate, it is helpful to provide a
summary of the legal context in which the issues arise.
101. In one sense, the legal context is not directly relevant, because this Review is
concerned with best practices, not with the minimum requirements for legal
compliance. One of the main messages of this Report is that members of the TPS should
strive for the optimal outcome, not just a lawful one. But the legal context is relevant for
a different reason, because it helps to explain the powers of the police, the rights of the
person in crisis, as well as the constraints within which both must operate.
1. Mental Health Act and regulation
102. The Ontario Mental Health Act is central in outlining both police powers and the
rights of a person experiencing mental health issues. The statute is premised on the
central principle that people, even if they are believed to be in need of observation, care,
and treatment in a psychiatric facility, cannot be compelled to receive care and
treatment except in a narrow range of circumstances. The liberty of the individual is
given primacy in most cases.
103. The major exception is where the person is reasonably believed to pose a danger
of serious bodily harm or serious physical impairment to himself or herself, or a danger
of serious bodily harm to another person. In such cases, under section 17 of the Mental
Health Act, a police officer may apprehend the person, take the person into custody by
force if necessary, and take the person to be examined by a physician. The police may
also be involved in apprehending a person to be examined where a justice of the peace
has issued an order for this purpose under section 16 of the Mental Health Act, and in
certain other circumstances set out in the Act.
104. Under section 33 of the Mental Health Act, a police officer who takes a person in
custody to a psychiatric facility is required to remain at the facility and retain custody of
the person until the facility takes custody of the person. Under section 7.2 of Regulation
741 under the Act, 16 the officer in charge of the psychiatric facility or his or her delegate
is required to ensure that a decision is made as soon as is reasonably possible as to
whether or not the facility will take custody of the person. As explained below in Chapter
4 (The Police and the Mental Health System in Toronto), the requirement for police to
remain at the psychiatric facility is a controversial one, because hospital wait times for
police can last for hours depending on the hospital, thus preventing police from
returning to their police duties.
2. Police Services Act and regulations
105. I address the role of the Police Services Act and its regulations at various places
throughout this Report. The key features of the legislation, for purposes of this Review,
are the following:
16
R.R.O. 1990, Reg. 741.
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