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Constitutional Law - Charter of Rights - Right to Counsel - Evidence - Remedies - Fundamental liberties, civil rights and constitutional rights of individuals detained under mental health legislation - Evidence and burdens of proof in civil cases involving detentions under mental health legislation - Rights of redress of unlawfully detained individuals.

The police took the applicant into custody pursuant to the Mental Health Act, R.S.O. 1990, c. M.7. They took her to the respondents' emergency department for psychiatric assessment. She arrived at the hospital early in the afternoon and was seen about 4 p.m. by Dr. Sawadsky. Dr. Sawadsky completed an "Application by Physician for Psychiatric Assessment" pursuant to which the applicant was detained for further assessment. She was seen by another doctor around 5:30 pm and released from the hospital. She was asked to return in three days for a follow-up appointment. The applicant testified that Dr. Sawadsky did not examine her. She testified that he did not provide her with a "Notice to Person of Application for Psychiatric Assessment", also known as a Form 42. She testified that she felt compelled to return for the follow-up appointment. A Form 42 provides a detainee with written notice that he or she has a right to retain and instruct counsel without delay. The applicant testified that she was not otherwise notified of her right to counsel. Dr. Sawadsky testified that his normal practice is to give a Form 42 to a detainee. He had no specific recollection of giving the applicant a notice but testified he would have followed his normal practice.