Will the Supreme Court of Canada make a key decision about BC’s mental health law this week? Sadly, no.
For a recent update click the button or scroll to the bottom of this post.
On January 12 and 13, 2022, a legal case about the constitutionality of BC’s Mental Health Act will be heard by the Supreme Court of Canada, the highest court in the country. Originally filed in 2016, it’s the first case in decades that could provide guidance on whether BC’s mental health law complies with the Canadian Charter of Rights and Freedoms. Forty-six lawyers representing 34 organizations (some working in partnerships or groups) will advocate to the Court to influence the outcome of the case, including four provincial Attorney Generals and the Attorney General of Canada.
At first glance, that seems like a big deal for mental health law in BC. Unfortunately, though, this legal hearing won’t decide whether BC’s Mental Health Act complies with the Charter. The Supreme Court of Canada hearing is the final step in the BC Attorney General’s fight to stop the case from ever being heard.
The Supreme Court of Canada hearing this week will consider when and how community organizations can bring legal cases under what is called “public interest standing”. Public interest standing is a tool that ensures there is a way to enforce the human rights of people who face barriers to bringing their own individual legal cases. The BC Attorney General is arguing that the Council of Canadians with Disabilities, a national human rights organization of people with disabilities, should not be able to bring the case about the rights of people who experience involuntary treatment under BC’s Mental Health Act. The BC government has made that argument in three levels of court for almost four years – a process that has blocked the case from ever going to trial.
The 34 organizations involved in the case, which have mandates ranging from gender equality to the environment to prison justice to lawyer associations, will spend two days advocating to the Court about how public interest standing should be defined and when people in need of human rights protections face high enough barriers to allow organizations to make human rights claims.
The case raises crucial questions about BC’s Mental Health Act and it is exactly the kind of case where public interest standing was supposed to promote the recognition and enforcement of human rights. Numerous sources, from the UN Special Rapporteur on the Rights of Persons with Disabilities to community organizations to academics to independent offices of the legislature, have made it clear that BC’s laws do not respect human rights guarantees. However, the laws have remained unchanged and unchallenged for decades because the BC government hasn’t proactively updated the laws and no one has managed to get a case into court to try to order the government to update it.
This case does tell us about the inaccessibility of our legal system.
The Supreme Court of Canada’s decision, when it is released, could determine whether the case can proceed to a trial. This is the first step in deciding the Charter issues at the core of the case. Many of the organizations involved will argue that people who experience mental health detention and involuntary treatment face significant barriers to bringing their own Charter litigation.
Those barriers are real, and they flow from our systemic failures to ensure access to justice. Charter litigation can take years and be exorbitantly expensive. Further, with no publicly funded legal advice services in BC, many people experiencing mental health detention and involuntary treatment are unaware of their rights and have no feasible way to access legal services.
The main take-away from the court case is that the legal system can and is being used by BC’s Attorney General to create additional barriers to enforcing human rights.
The almost 20,000 people detained under BC’s Mental Health Act each year should not have to wait years for a case to wind its way through courts. Instead of fighting the ability of a disability group to bring a human rights case to court, imagine what the BC Mental Health Act could look like now if the BC government had used the last five+ years to transform BC’s mental health laws and services.
UPDATE
June 23, 2022
Breaking: Supreme Court of Canada unanimously says Mental Health Act challenge can proceed. The highest court in Canada said that the human rights issues related to the Mental Health Act are serious. Allowing this case to proceed supports access to justice and acknowledges that people with mental health-related disabilities face significant barriers to bringing legal cases forward.
For a thorough summary of the decision from CLAS click here.
We have released our summary of the impacts of this decision. See it here.