Tuesday, June 2, 2015

Law, Legislation and Liberty - Child killer goes to the coffee shop, while innocent people incarcerated.

The only thing worse than Schoenborn getting out is the wrong person getting put away.


There are complexities associated with the administration of the BC Mental Health Act. and the federal statutes related to criminality and mental illness that tend to get lost in the emotional debate that has erupted around the dangerous offender legislation.  I agree with Mr. Moore that the prospect of a man who killed three innocent children being released is appalling, I share his view that there is a complete absence of concern for justice, survivors and the optics around the pursuit of justice peculiar to this case.  Please note however, that to the extent the system has failed the victims in this case, the system has failed those accused of mental illness in a multitude of other cases.  

In James Moore’s discourse he says, the federal government writes the law, in fact the BC Mental Health Act is written by the provincial government. What has facilitated the absence of justice in this case is the willingness for provincial bodies to permit Review Boards to do what courts should. This is a two edged sword, it permits the lax management of dangerous people AND the lax conviction of the innocent people. The BC Mental Health Act. Review Panel process is retrograde justice as it flouts common law traditions and fundamental justice. In this case it has failed in any way to bring reasonable response to a heinous event and every day the BC Mental Health Act. fails to bring the appropriate degree of Judicial Review to the apprehension,  incarceration and forced treatment of those accused of mental illness.

The BC Mental Health Act. has removed legal process from the courts and transferred it into medical institutions. The case in question utilized federal legislation that provisions for a designation of innocence due to mental illness. Once the court has deemed someone to be mentally ill they are then administered under the respective provincial mental health act. If someone is ill, the illness generates “criminal” behavior and then they are cured, the state has done its job – as the logic goes. The challenge is that “severity” is unaccounted for – it is the severity of the action in the case in question that the public is responding to and that motivated the creation Dangerous Offender Legislation.

It is fundamental in law that Standards of Review (the rigor by which the court “questions” and “supports” data) be commensurate with both criminal action and state sanction. By way of example, the court processes associated with a speeding ticket are less rigorous than court processes related to murder. It is also fundamental that there is clarity in law, that the law is sufficiently well defined that it gives clear direction to those required to administer it.
The present act fails to define severity of disease and fails to account for variance of action subsequent to disease. Section 22 of the BC Mental Health Act. can incarcerate people for the murder of three children and for spending their own money radically – that is the breath of human action a single law addresses. The present act fails to account for severity of action, if someone is accused of Bi Polar disease absent any “wrong doing” they are subject to the same or perhaps more rigorous treatment than another with the same diagnosis; depending on the judgement of the treating physical and subsequent treatment (arbitrary). 

I have written extensively on the BC Mental Health Act and the imperative for change; it was refreshing to me to witness rapid action in defense of victims. One wishes the government were as eager to come to the aid of another set of victims, those accused of mental illness that are grossly discriminated against by retro grade judicial process, process detached from the judiciary and process, as clearly demonstrated in this case, detached from reality.  The BC Mental Health Act is bad law, it breaches the Charter of Rights and Freedoms in several ways, it flouts common law traditions, it is divorced from fundamental or natural law, it is discriminatory and worse, its processes effect a state of reverse onus at the outset of The Review Panel Process. Good law tacked on top of bad law – is still bad law, the federal government needs to be as rigorous in holding British Columbia to account for bad law, as it has been in generating this new law.   

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