3 Take-Aways from the Supreme Court of Canada’s Decision in Constitutional Case on BC’s Mental Health Act
On June 23, 2022, the Supreme Court of Canada made an important decision in the years long constitutional case about BC’s mental health law. Originally filed in 2016, it’s the first case in decades that could provide guidance on whether BC’s Mental Health Act and related laws comply with the Canadian Charter of Rights and Freedoms.
Instead of going to a trial to respond to the claims that BC’s laws violate human rights, the BC Attorney General has been trying to get the case thrown out without a trial. At three levels of court over four years, the BC Attorney General has argued that the non-profit disability advocacy group, the Council of Canadians with Disabilities should not be allowed to bring the case.
In a unanimous decision written by the Chief Justice of the Supreme Court of Canada, the highest court in this country found that the Council of Canadians with Disabilities can proceed with the case. While this decision has many important impacts, here are 3 take-aways.
1. People impacted by the BC Mental Health Act face discrimination, reprisal, and barriers when trying to assert their rights
The Supreme Court of Canada found there was uncontested evidence in the case that people who have been subject to involuntary treatment under the BC Mental Health Act face significant barriers to accessing courts for constitutional cases. Impacted people may fear reprisal from health care providers who control their treatment, experience challenges from their mental disabilities, and face stigma and discrimination that is still all too common against people with mental disabilities. Even the trial judge in this case expressed doubt that mental illnesses or mental disabilities are disabilities. The Supreme Court of Canada found this distinction the trial judge tried to draw was “unhelpful, and unfounded” and said plainly that mental illnesses and mental disabilities are disabilities.
While the Supreme Court of Canada recognized that people who have experienced involuntary treatment are fully capable of bringing constitutional cases to court, it also acknowledged the significant barriers they would have to face and overcome.
2. Just because there are different perspectives on the BC Mental Health Act doesn’t mean it’s constitutional
The BC Attorney General argued that the Council of Canadians with Disabilities should not be given standing to bring the case because it may not represent everyone’s perspective on the BC Mental Health Act. The Supreme Court of Canada dismissed this concern, pointing out that the law has never asked that the people or organizations bringing forward a case represent everyone’s perspectives or even the majority of people impacted by the law. Just because there are different opinions about the law – and even if some people support the law – doesn’t mean it is constitutional.
What matters is whether there is a serious issue for the courts to decide, and the Supreme Court of Canada found there clearly was here. The Court said that the Council of Canadians with Disabilities is a “highly reputable public interest organization” with “impressive expertise” whose case was “well drafted”. While evidence from people who have experience with the laws will help create a factual setting, the Court pointed out that a lot of the case can be argued on the basis that the Mental Health Act is unconstitutional on its face because it can authorize forced psychiatric treatment without the consent of the patient or of a supported or substitute decision-maker. This is a clear indication that there are serious questions about whether the Mental Health Act violates human rights guaranteed by the Charter.
3. The BC government could stop trying to block access to the courts and start reforming the BC Mental Health Act at any time
The Supreme Court of Canada recognized that the Council of Canadians with Disabilities has tried to move this case forward for nearly six years and the actual issues the case raises about forced psychiatric treatment in BC still haven’t been addressed. The Court took the exceptional step of ordering the BC government to cover all the Council of Canadians with Disabilities’ legal costs at all three levels of court to try to place them back in the financial position they were in when the Attorney General of BC began challenging its ability to bring the case forward.
The Council of Canadians with Disabilities and their legal team at the Community Legal Assistance Society and McCarthy Tétrault can now start the substantial and lengthy work of going to trial. But as they point out, the BC government could simply “stop its campaign to preserve BC’s outdated and unconstitutional forced psychiatric treatment laws and instead get to work building a mental health system that provides access to top-notch health care without trampling on people’s rights”.
The almost 20,000 people detained under BC’s Mental Health Act each year should not have to wait years more for this case to go through a trial and possible further appeals. Let’s hope the BC government stops investing time and resources fighting in court and starts transforming the Mental Health Act to promote human rights.