Protective Detention or Constitutional Problem? Bill 48 and the Section 7 Case Against Manitoba's 72-Hour Detox Law

By: Austin Lees, Kelsey Scott, and Tesia Romaniw

Introduction:

In November 2025, Manitoba became the first province in Canada to authorize 72 hours of involuntary detention for intoxicated individuals, tripling the previous limit with near-unanimous legislative support. Bill 48, The Protective Detention and Care of Intoxicated Persons Act, passed through the legislature quickly, but the constitutional questions it raises will not resolve as easily.

Bill 48 replaces The 1987 Intoxicated Persons Detention Act and authorizes police officers and designated officers to detain highly intoxicated people in a designated "protective care centre" for up to 72 hours.[i] The provincial government framed the legislation as a health-care measure, designed to stabilize individuals in the grip of long-lasting drug episodes and connect them with supports.[ii] However, critics, including MP Leah Gazan, Senator Kim Pate, and several medical professionals, have called it involuntary detention dressed up as compassion.[iii]

In this blog post, we argue that Bill 48 is constitutionally flawed under Section 7 of the Canadian Charter of Rights and Freedoms. The bill deprives individuals of their liberty and security of the person in ways that are arbitrary and overbroad relative to its stated health-care purpose. Since the legislation authorizes extended detention without mandating treatment, without requiring judicial oversight, and without meaningful procedural safeguards, it is unlikely to withstand a Charter challenge.

Background and Legal Context:

Bill 48 permits an officer who finds an intoxicated person in a public place to detain them and bring them to a protective care centre.[iv] Section 4(2) of the bill allows officers to hold a detained person for up to 72 hours.[v] The legislation does not require a warrant, judicial authorization, or any independent review of the decision to detain. A health professional assessment is required only after 48 hours of continuous intoxication, and even then, the operator of a facility is only required to make "reasonable efforts" to arrange one, meaning the assessment is not guaranteed.[vi] The bill does not mandate any form of treatment, counselling, or therapeutic programming during the detention period. However, it does include exceptions for release, including where the person is no longer intoxicated or where someone else assumes responsibility for their care, but the decision to detain in the first place rests entirely with the detaining officer.[vii] Bill 48's lack of safeguards warrants constitutional scrutiny, particularly under Section 7 of the Charter.

Section 7 of the Charter provides that everyone has the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.[viii] In Canada (Attorney General) v Bedford, the Supreme Court identified three principles of fundamental justice that apply when a law limits life, liberty, and security of the person: arbitrariness, overbreadth, and gross disproportionality.[ix] A law is arbitrary when there is no rational connection between its effects and its objective.[x] An overbroad law is one that captures conduct beyond what is necessary to achieve its purpose.[xi] A grossly disproportionate law is one whose impact on individual rights is entirely out of sync with its aims.[xii] Any law that violates any one of these principles of fundamental justice infringes Section 7.

Laws that infringe Section 7 may still be saved under Section 1 of the Charter if the government can demonstrate the limit is reasonable and justifiable.[xiii] However, as the Court noted in Bedford, a law that has already been found arbitrary or overbroad under Section 7 will face significant difficulty at the justification stage.[xiv] The reason is straightforward: if a court has already concluded that a law has no rational connection to its purpose, the government cannot then turn around and argue that the same law is rationally connected and minimally intrusive enough to justify the rights violation.[xv] 

The Section 7 Problem:

Bill 48 likely engages both the liberty and security of the person interests protected by Section 7. On the liberty side, the bill authorizes up to 72 hours of involuntary confinement in a locked facility without a warrant or judicial authorization, which represents a significant deprivation of physical liberty by the state.[xvi] On the security side, the medical evidence suggests that the detention regime itself may create health risks for the people it confines. Dr. Jim Simm, Manitoba's former chief psychiatrist, has warned that methamphetamine use can trigger psychosis lasting well beyond 72 hours and that detention without proper medical supervision carries serious risks of seizures and cardiac arrest.[xvii] Dr. Paxton Bach of the British Columbia Centre on Substance Use also noted federal guidelines specifically recommend against short-term involuntary detoxification for opioids because it reduces tolerance, which paradoxically increases the risk of fatal overdose upon release.[xviii] If a court were to find both interests engaged, the next step would be to ask whether the deprivation accords with the principles of fundamental justice.

The first ground on which Bill 48 may fail is arbitrariness. The government stated its purpose is therapeutic, and the preamble frames detention as providing people with a safe place to recover and opportunities to connect with care supports and services.[xix] However, the bill does not mandate medical treatment, addiction counselling, or any therapeutic intervention during the detention period, and a health professional assessment is not even required until after 48 hours.[xx] This gap between the bill's purpose and its design reflects the kind of disconnect that Bedford identifies as arbitrariness. When a law claims to protect health but does not require health care, it is difficult to identify a rational connection between its stated purpose and its effect on the detained individual. As we discussed with MP Leah Gazan on our podcast, the facility in practice amounts to detention without meaningful care in a community that already faces disproportionate contact with the justice system.

The second ground on which Bill 48 may fail is overbreadth. The government introduced the bill to address meth-induced psychosis, but the legislation reaches well beyond this objective. Section 2 defines an intoxicated person broadly as anyone who has consumed an intoxicant and meets certain criteria, and Section 3 gives any officer discretion to detain that person if found in a public place.[xxi] The bill does not require a clinical assessment or a finding of imminent danger before detention occurs. Under Bedford, a law is overbroad when it captures conduct that bears no connection to its purpose.[xxii] In this case, it means that a person who is intoxicated but poses no danger to themselves or others could still be confined for up to three days based solely on an officer's judgment, which extends the bill's reach far beyond the specific crisis it was designed to address.

What We Heard on Our Podcast:

Our conversation with MP Leah Gazan (to be posted later this week) on the special edition of the Robson Radio podcast brought several of these Charter concerns into sharper focus. Gazan, whose riding of Winnipeg Centre includes the facility at 190 Disraeli Freeway, described visiting the site with Senator Kim Pate before it opened. However, both were denied entry, forcing them to look through the windows to see the units inside. Nonetheless, their visit prompted Gazan to compare the conditions to solitary confinement cells. She raised serious concerns about the safety of people detained inside, particularly given the medical risks associated with methamphetamine withdrawal and the limited clinical resources available at the facility. Senator Pate went a step further, calling the facility "ill-conceived" and predicting that Charter challenges would follow.

These criticisms point to a broader tension that runs through the legislation. Bill 48 was presented as an alternative to the criminal justice system, yet the regime it creates closely resembles one. Officers decide who gets detained, the detained person has no access to counsel or independent review, and multiple observers have described the facility as resembling a jail. On our podcast, we discussed with MP Gazan that a person detained under Bill 48 has no guaranteed access to a lawyer, despite being confined in a locked facility for up to three days. This concern engages Sections 9 and 12 of the Charter, which protect against arbitrary detention and cruel and unusual treatment.[xxiii] An individual could also argue that the detox centre violates these provisions in addition to the Section 7 concerns we outlined above.

Beyond the legal concerns, MP Gazan returned throughout our conversation to the point that the meth crisis is fundamentally a health care problem, not a criminal one. If the provincial government shares this view, the legislation should reflect it. A response built on involuntary confinement without mandating clinical care raises serious questions about what Bill 48 is designed to accomplish. The question facing Manitoba is not whether to respond to the crisis, but whether the response it has chosen can withstand the constitutional scrutiny that involuntary detention inevitably attracts.

Conclusion:

Bill 48 represents one approach to a crisis that Manitoba cannot afford to ignore. However, the decision to respond through involuntary detention carries constitutional consequences that the legislation, as currently designed, does not adequately address. As we have argued, Bill 48’s failure to mandate treatment undermines its stated therapeutic purpose, and its broad grant of officer discretion extends its reach well beyond the specific crisis it was introduced to address. These deficiencies expose Bill 48 to a rights challenge under Section 7 of the Charter. Manitoba has the authority to act on the meth crisis, but it must do so in a way that respects the constitutional rights of the people it claims to protect.

Endnotes

[i] The Intoxicated Persons Detention Act, CCSM c 190; Bill 48, The Protective Detention and Care of Intoxicated Persons Act, 2^nd Sess, 43^rd Leg, Manitoba, 2025 (first reading 2 October 2025) [Bill 48].

[ii] Byrce Hoye, “Manitoba passes bill that will allow highly intoxicated people to be detained for 72 hours”, CBC News (05 November 2025) 1 online:<cbc.ca> [perma.cc/VF58-RZGB].

[iii] Carol Sanders, “Winnipeg MP, Ontario senator take aim at about-to-open detox centre”, Winnipeg FreePress (1 December 2025) 1 online:<winnipegfreepress.com> [perma.cc/3FZW-LSTX].

[iv] Bill 48, supra note 1 at s. 3(1), 3(2).

[v] Ibid at s. 7.

[vi] Ibid at s. 7(3).

[vii] Ibid at s. 8(1), 8(2).

[viii] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c C-11 [Charter].

[ix] Canada (Attorney General) v Bedford, 2013 SCC 72 [Bedford].

[x] Bedford at para 111.

[xi] Bedford at para 112

[xii] Bedford at para 120

[xiii] Charter, supra note 8 at s. 1.

[xiv] Bedford at para 125; see also paras 161–163.

[xv] Ibid.

[xvi] Bill 48, supra note 1 at ss. 3, 4(2).

[xvii] Arturo Chang, “Doctors say involuntary detention not the answer, as Manitoba passes bill allowing 3 days of protective care”, CBC News (6 November 2025) 1 online:<cbc.ca> [perma.cc/T4UB-FZ48].

[xviii] Ibid.

[xix] Bill 48, supra note 1 at preamble.

[xx] Bill 48, supra note 1 at s. 7(3).

[xxi] Bill 48, supra note 1 ss. 2, 3.

[xxii] Bedford at para 112.

[xxiii] Charter, supra note 8 at ss. 9, 12.