Summary

Section 64(a) of the Summary Convictions Act gives the police authority to detain a drunk overnight, without charge, and with the discretion to release him or her the next day. The B.C. Civil Liberties Association takes strong exception to this police power, believing it to be a matter that is not within the authority of the police to deal with and objects to the actual practice of mandatory detention under the guise of rehabilitation.

Under section 64(a) individuals defined as chronic alcoholics can be detained for up to one year for compulsory treatment. This can be done despite the fact that alcoholism is not a well-defined medical condition, there is no reliable treatment for it, and the medical condition for which alcoholics are detained is not within their control.

As a general principle the BCCLA believes that paternalistic coercion of adults is illegitimate, and the use of both police and gaols to lock up alcoholics “for their own good” is unjustified. A large amount of discretion is granted to police and other officials in detaining alcoholics, and it is felt that this discretion is liable to be used in a very discriminatory manner.

For these reasons the B.C. Civil Liberties Association feels that section 64(a) should be repealed completely and should not be patched up by minor amendments.

Introduction

The B.C. Civil Liberties Association recommends the repeal of section 64(a) of the Summary Convictions Act of B.C.

The point of this recommendation is to discontinue the power of compulsory treatment of alcoholics. We assume that personnel and facilities now used for compulsory treatment would be transferred to voluntary treatment.

An incidental effect of section 64(a) is to give the police an authority to detain a drunk overnight without charge, with discretion to release him or her the next day. The question of whether this practice is desirable is a quite separate issue, and provides no ground for retaining any part of 64(a). Whatever attitude one takes to the informal handling of drunks or of people in other conditions of impairment, it is clear that any authority for it must be related to keeping the peace and to protecting the physical safety of all concerned, and cannot justifiably be related to personal characteristics such as alcoholism.

Section 64(a) is objectionable in principle, and cannot be saved by minor amendments. At the same time, it contains a number of especially objectionable particular provisions, and we will document these subsidiary criticisms in order to make clear the disregard for due process and for personal rights which animates the whole section.

Section I

The section is objectionable in principle because it subjects people to a year’s virtual imprisonment even though:

1. they have committed no non-trivial offence
2. they are not engaged in harmful behaviour
3. the condition for which they are detained may be within their control
4. the condition is ill-defined and has no reliable treatment and
5. there exists no emergency justification.

The action taken, namely detention in an institution for up to a year, is a major deprivation of freedom. It is the equivalent of a criminal sanction for a serious offence. Yet it is not pretended that any offence must be proved or that the person detained must have been engaged in conduct dangerous to others, or even that he or she must have done anything at all. The basis for detention is a condition which is frequently not only beyond the agent’s control but also beyond a doctor’s power to cure, or even to bring within a reasonable prospect of reliable treatment.

Medical conditions are normally presumed to be within the right of the patient to seek help, or not, in his or her own way. In the rare cases in which we deprive people of liberty because of their medical condition, we expect a radical or emergency justification, on a scale sufficient to excuse the setting aside of fundamental rights. For example certification of insanity undercuts all rights to choose. In the case of infectious disease, we require both:

1. imminent danger of danger of death or serious illness to others, as from cholera or tuberculosis, and
2. a definite and limited-term procedure for curing or at least protecting others from the disease.

Neither condition is satisfied by chronic alcoholism: the harm others is a matter of nuisance and inconvenience, and there is definite time within which detention can guarantee any change.

In view of these facts, it is hard to imagine how the framers of 64(a) could have thought themselves justified. A simple view would be that they meant to act for the good of the alcoholic; in the frank absence of a case grounded on protection of society, they undertook to be paternalistic toward him or her. But on that basis the legislation must be rejected as clashing directly with the fundamental rights of a citizen. Paternalistic coercion of adults is illegitimate in principle, even where there exists a practicable means of implementing it. Our rejection of compulsory treatment stands, therefore, quite independently of the question of whether or not there is any effective treatment.

Even those willing to sacrifice the principles of a free society, in order to impose help on alcoholics, would still have to reject the imposition of compulsory treatment. It makes no sense to require treatment when no effective treatment is known. The fact that groups like Alcoholics Anonymous have had some success with some people does not amount in anybody’s mind to the discovery of a reliable method of treatment. Medically speaking, alcoholism is an unsolved problem. In addition, even in those cases in which a particular approach might succeed, compulsion to follow it is likely to be self defeating. The available evidence suggests strongly that any element of pressure to undergo treatment undermines the kind of motivation that is an indispensable condition of success.

Presumably the legislation must stand or fall not on paternalistic justifications but on the need to protect other people.

Any kind of compulsory treatment requires proof that this need is sufficiently small, that the one can justify the other. No doubt the danger of death to one person can justify imposition on another person of a week in hospital or a course of penicillin. The judgement is easy in both directions. In particular, the treatment is relatively quick and certain, and has nothing open-ended about it. By contrast, conditions of drug dependency are typically of doubtful and slight impact on others; the conditions are not well understood; and attempts to correct them are less likely to succeed than to go on indefinitely. Compulsory treatment becomes a euphemism for imprisonment of people who have committed no offence.

Section II

The detailed objections to provisions in Section 64(a) are of three main kinds. They concern the discretion granted at many stages, the creation of criminal offences to enforce the treatment, and the indeterminacy of the criteria for detention.

The police are given discretion whether to handle a drunk with a minimum kind of precautionary help, such as a neighbour might offer, or to begin proceedings leading to a year of detention. It is no doubt necessary and desirable that the police have some discretion about how to deal with street level human situations, and we rely considerably on their experience and good sense. But it is inviting abuse to put into the hands of individuals dealing with difficult people a threat of magnitude of “I’11 pack you off to Allouette River for a year”. Since it is inconceivable that we will in fact provide facilities for detaining one in ten of those who become vulnerable to 64(a), the exercise of this discretion is doomed to he discriminatory even where it is not arbitrary.

The second stage of administrative discretion occurs between the taking of person to an institution under a physician’s certificate (subsection 2(a)) and the application for a confirming order (2(b)). The proceedings may be dropped at that stage, with the result that a person may be detained, examined, kept for 72 hours, and released, without ever coming before a magistrate.

Discretion recurs at every possible opening. The doctor may give a certificate (2(a)); the magistrate may make a confirming order (5); where facilities are not available the person may be detained in a common gaol; the Chief Probation Officer may discharge the person at any time, but he or she may also attach any condition he or she sees fit (9); where his or her conditions are breached, he or she may issue a warrant for apprehension (10); then a magistrate may have the person detained anywhere whatever (10). It is particularly odious that those in custodial care of an alcoholic should be given the right to show creative ingenuity in regulating his or her life when he or she is conditionally released from an institution. Keeping away from named places and people, working at jobs, and attending clinics or groups, are clearly only the beginning of those features of a life-style that a zealous worker might decide to be relevant and legitimate conditions of release.

Turning now to the ways which hospital turns into gaol: it is written in, in the first place, that a common gaol or lock-up may be substituted for a ’treatment’ facility at every state, including breach of any condition imposed by the Chief Probation Officer (10), merely by administrative decision or magistrate’s order, without any requirement of conviction for a offence.

But more seriously still, subsection II(a) creates an offence, presumably an offence punishable upon summary conviction, which consists in the person absenting himself from the place of detention or failing to return when instructed by the Chief Probation Officer. It seems that a person becomes an ordinary criminal, and subject to six months in ordinary prison, even though he has committed no other offence, if at any time during the year he or she refuses to stay for a treatment someone else is determining in detail. When a supposed year of treatment is potentially a year and a half of ordinary prison, the medical pretensions of the legislation are unmasked.

Finally, the stated criterion for detention is of the wrong kind, and no workable statue could be built upon it:

1. it is inevitably subjective in application, since it requires judgments which neither the physician nor magistrate can be qualified to make;
2. b. it encourages discrimination against the poor and against those who lack respectability and support in the community;
3. it makes it impossible to predict the application of the law.

With respect to point (a), the Magistrate must be satisfied that “the person is in need of treatment and rehabilitation as provided for chronic alcoholics, and that no firm arrangements have been made for the voluntary treatment of the person, or, if made, are not likely to be adhered to by the person” (5). Such a judgement of need will vary with individual points of view to a greater degree than most judgements made by courts. It depends on assessing the worth of available treatment, and depends on working out the overall balance of practical necessities in the life of an individual. On top of that is a judgment on the likelihood of future behaviour. Nor can we ask a physician who has conducted a single examination of a stranger, and a magistrate who has heard this testimony and whatever else he or she chooses to secure, to assess the life prospects of a human being, and to know him or her better than his or her friends can. The issues to be judged are not, by any stretch of the term, medical. It is hard to say what collection of experts, using what procedures, would be competent to form such judgements. But it is easy to see that the physician and magistrate will not be competent. One would prefer to put such question to a jury; but consider how one could possibly instruct them.

With respect to point (b), it is likely that an alcoholic with money or family, with a doctor or neighbours to help him or her, with a job at stake, or simply with a lawyer to represent him or her will have some chance of denying his need or pleading his good intentions successfully. The unemployed or Skid Road regular will be put away for a year.

With respect to point (c), it is clear what has become of the certainty of the law, and of the citizen’s ability to foresee its impact on him or her, when the many exercises of discretion listed. About all an alcoholic will know is that with enough bad luck he or she may become one of a small minority of alcoholics from whom a couple of strangers will be empowered to judge his or her personal situation and character, and to attempt wiser decisions for him or her than he or she makes him or herself, and that their opinions may determine whether he or she is at liberty or in detention for some period up to a year.

The detailed objections thus come full circle to the basis of rejecting the whole conception of Section 64(a): a condition like alcoholism is a totally inappropriate object of detention or coercion of any kind. In this case, the equivalent of a severe criminal sanction is inflicted. But under the myth of a medical rationale that infliction has lost the normal judicial guarantees of the process. The resulting piece of legislation has neither the rationale nor the procedures of a criminal statute, but only the penalty. It has neither ethics nor the good effects of medical treatment, but only the rhetoric. It is the worst of both worlds, and must be repealed.