Christmas Letter 2021

 

Carbon Tax - Bad Policy - Just Stupid

 Carbon Tax, they say, has the approval of 600 expert economists – I’ve yet to speak to one; regardless of how many say it makes sense, it makes no sense. Carbon Tax is either completely ineffective or is an inferior policy choice.

When you look at a graph of oil consumption and you look at a graph of oil price you discover a very interesting fact, the price has little or no effect on consumption. If you think I am being unreasonable, go to British Petroleum’s website where they have generously provided 100 years or more of price sensitivity analysis. Once discretionary consumption is curtailed – the Sunday drive etc. – demand becomes inelastic, and consumption holds steady regardless of price. So, Carbon Tax is ineffective as a price signal. So, a revenue-neutral carbon tax is silly, unless you think regressive taxes make sense unless you think attacking marginal businesses like agriculture makes sense or, unless you think it makes sense for a single mom to pay $2.50 a litre for gas to drive her kids to daycare and work – she must, she has no choice now – leadership has failed to give her a choice.

NO PRICES FUNGIBILITY

No effective replacement for fossil fuels

Carbon Tax could be marginally effective if it were collected and kept by the government and earmarked for transition. The challenge of course is, we never know where the government is spending money and once they get it, it is rare that it is directed appropriately. 

PRICE FLUCTUATIONS EFFECTS NO CHANGE IN CONSUMPTION

It can be said then that revenue-neutral carbon tax is just stupid because it does nothing and carbon tax that stays in government hands could be useful for transition if it were directed properly, that is one big if. What Carbon Tax does do, however, is retard the economy because the increase in fuel cost acts as a serious drag on the economy. What Carbon Tax does do is ensure that every ton of carbon emitted costs a given amount, say $120 / ton, it punishes use rather than provide the incentive to reduce carbon emissions.

What Cap and Trade does is provide an incentive to reduce carbon and most importantly, it puts in place market mechanisms that will drive down the cost per ton of carbon reduction. By way of example, an oilsands company exceeds its cap by X number of tons, it posts the X number of tons on an exchange – at that point, there is a biding process effected, various actors will offer the price/ton for which they will capture (offset) said carbon. This reality effects a market force, or downward pressure and efficiencies on carbon capture – so rather that every ton of carbon being emitted costing $120, the cost of capturing carbon will be reduced and therefore, be less of a drag on society. Further, Cap and Trade takes the cost to one actor and transfers that cost as a benefit to another actor in an immediate way – so the net affect on the overall economy is neutral.

The world was agreed on Cap and Trade at Kyoto – there was consensus on the merit of its functionality relative to other methods. It would have been accepted at Kyoto had people stopped worrying about social engineering and focused on the challenge of the environment. The largest inhibiting factor or factor confounding environment solution is that the legitimate environment cause has been highjacked by people who are more interested in “social change” rather than climate change. 

November 11 - the West's Folley

Vaccination Cards = De facto Forced Vaccination Program

Once again, I feel compelled to question the actions of our provincial government. I have witnessed a near-complete disregard for charter rights throughout this pandemic. I am unclear what the legal foundation is for the implementation of Vaccination Cards. If anyone that reads is aware, may I impose on you to provide me with the various statutes and laws generally that the government has relied on to implement this program?

Click here for my personal website

 
I must say, the choice of venues and nature of prohibitions seem designed to skirt charter issues to a degree. Whatever the case, this clearly assaults the spirit of Section 7.
 

One recognizes the need to manage difficult situations – I have yet to see any data nearly compelling enough for a de facto forced vaccination program. Domain over mind and body (the right to refuse medical treatment) is the most sacred element of human rights, it is odd to me to see so many assaults on this element of human rights by governments that call themself “progressive”; no one is seeking consent by this action, they are seeking to force compliance.

I will grant the government a degree of sympathy insomuch that the federal government has been slow to implement its proper and legal jurisdiction. If anyone who reads this has a complete understanding of the federal support for these sorts of initiatives, may I impose on you to inform me what legal direction and support the federal government has provided the provinces – timelines would be helpful? What I am eager to do is to prevent the degradation of human rights in Canada, rather than carrying any political agenda – your help would be most appreciated.

nthomson20@gmail.com 

The concern for me is the way these things have been done. Had the Emergency Measures Act been activated at the outset of the pandemic, it would be a matter of public record as to why and its purposes, it would have been subordinated to the Charter and subject oversight by parliament, thus providing a legal umbrella to administer the law under; specifically the Emergency Measures Act. and then the law generally. In this way, social distancing and other measures, such as restricting the right to assembly would have been exercised under the EM act - rather than arbitrarily as they were in many cases. This process would have provided a clear statutory point of delineation - "date x" civil rights were intruded on and on "date b" it is now over. Further, and as concerning, in allowing the provinces to do this absent federal authority clearly given, federal paramountcy is weakened. It is, for this reason, I am seeking input from various parties for information on the federal government’s direction on these issues.

Death with Dignity - Revisions to the existing legislation still required

The suicide criminalization provisions in the Criminal Code prior to recent changes were a breach of rights afforded us via Section 7 of the Charter of Rights and Freedoms; I submit that as the law is now written and administered charter rights are still being infringed upon. Section 7 has as its “pressing and substantial objective”, and or its sprit, choice. The presence of Section 7 in our Charter holds as equity some 400 years of blood and toil, this fact is under-considered and too often legislators and jurists alike allow things exterior to choice to come to bear on matters related to life, liberty and security of person. In relation to liberty the state holds two fundamental obligations, firstly, to protect the citizenry against coercion and secondly, to the extent possible, facilitate personal choice. There is no more beautiful collection of words, than life, liberty and security of person – this collection of words carries the promise of the emancipation and the full expression of the individual. In drafting legislation, Section 7 demands a pristine and unfettered contemplation of personal choice – specific to Death with Dignity legislation, this reality has the state's only function being the protection and advancement of a given individual’s wishes.

An individual moves through life, at some point, there comes to bear on that individual a circumstance that provokes them to decide that life as it is, is too onerous to continue with – this is a personal choice and the state has no place extending value judgements on the reason this choice is being made – the state is often excluded from the choice when an individual chooses to take their own life. Death with Dignity recognizes that taking one’s own life is exceedingly difficult and often results in unnecessary trauma for the individual and those around them. At the point, an individual chooses to seek assistance in dying, they approach a doctor, the doctor then has a choice, upon assessment of their patient’s circumstance, whether they are able to assist or not. These are two individual choices being made here, there can be no coercive application of state power over either individual to act or not act. It should never be the case that the government would make the choice to end a life – that choice only resides with the affected party, any state impediment or incentive would be a breach of Section 7.

It is at the juncture where there is an agreement between these two individuals that assistance in dying is warranted and they decide to act, that state’s role begins. The only role for the state at this juncture is to ensure that, a person choosing to end their own life has their wishes attended to, that their wishes are emanating from a sound mind and that the actions are absent any none state or state coercion. It is critical in the drafting of a law that one contemplates the law’s misapplication as much as its intended outcomes; people associated with protecting people with disabilities are demanding this of us. 

The mechanics of attending to imperatives and controls in this type of legislation must ensure that matters of law, lie with the judiciary and matters of medicine lie with medical personal. There must be an institution exterior to the actuation of assistance in dying, overseeing the process, that is why tailored participation of the courts is required.  The present protection mechanisms in this regard are too weak, they bear a concerning similarity to provisions in the British Columbia Mental Health Act related to involuntary detention, to understand why this is a concern, I refer the reader to the following reports.

Click Here to access the BC Ombudsperson Report 42

Click Here to view the BC Community Law Society Report

Click Here for a report I've prepared in relation to the BC Mental Health Act

Stephen Covey teaches us to begin with the end in mind, in the designing of legislation that manages this most consequential choice on the part of individuals, the end we desire demands that we focus, simply to; ensure the person has the capacity to make the choice, protect against coercion and other abuses and to facilitate choice. The Dali Lama teaches us that “ethics are the inextricable link between my desire for happiness and yours”, happiness must be attended to by each of us, when another’s choice brings us concern and said choice brings no harm to us, then we must choose the path of benign coexistence. Too often in drafting legislation of this kind, fear and things other than legal imperatives distort the making of the law – this is exponentially true in the case of Death with Dignity.

The right to the domain over mind and body is a long-held imperative in British / Canadian law and is the crux of the Carter decision. There exists in law related to medical treatment the “presumption of capacity” which functions in a similar way as the “presumption of innocence”. So, to revoke the right to the domain over mind and body, the state holds the burden of proving that a given individual is absent the mental capacity to make a choice. In the case of assistance in dying, the state must determine the individual has the mental capacity to make the choice to die. The determination of capacity is a legal determination informed by medical information, as opposed to, a medical determination made by medical personnel. Attending to the rights afforded us by section 7 are antecedent to all matters related to the administration of law, or, at least, they should be.

The reason why the assessment of capacity must remain with the judiciary is that an objective third party assesses mental capacity contextualized to statutory and common law imperatives. This protects against arbitrariness in medical practitioners’ actions, it also protects against gradual migration into systemic apathy or compliancy, as has occurred with the administration of BC Mental Health Act, and it better protects those with disabilities from ever being the subjects of the unsavoury application of resource triage.

There needs to be two paths to medically assisted dying, the first, the use of a prior directive and, the second, point of care access whereby the instructions of a patient who is determined to have capacity actuates treatment. Both these options must be in place – the absolute best option is a prior directive because the parameters of action are clearly defined in advance while capacity is clear – with the direction of an appointed committee the medical control then is that two doctors confirm to the court that the present condition of the patient is consistent with the directive, this choice then is filtered through the court, medical personnel and an appointed committee. Prior directives, the appointment of committees, complete medical oversight and court oversight ensure that the protection of the infirm, ensure extended and consistent vigilance over the system and most importantly, the avoidance of people prematurely accessing assisted dying to facility late-stage consent. The absence of prior directives and committees effects a continuing breach of section 7 rights due to the normal course of many diseases. In the case of point care solicitation for assisted dying, the legal (court) assessment of capacity must be determined, and the medical personnel must inform the decision but the execution of the treatment must effected by a specially designed warrant or other court order, with the entire process being overseen by an appointed committee.

The logistics associated with the aforementioned process’s implementation are quite simple. Ideally, there would be a national registry implemented that allowed people to register their prior directives. As events unfold that actuate the advance directive, medical personnel would access the registry and the appointed committee would be contacted and commence overseeing the balance of the process. When the actuation of treatment becomes apparent, the committee applies to the court for an order to proceed – the request would be a standardized form requesting the court order and it would be accompanied by reports from two medical doctors confirming that the condition of the patient was consistent with the prior directive. This process, in the absence of any descent, would likely be executed in much the same way as a bench order is now. If there were an objecting party, then this would trigger more developed court process in the form of a hearing before a Supreme Court Judge. In the instance of a prior directive, the choice for and the parameters for actuation are done under an established state of mental capacity.

In the case that an "at the point of care request" for assisted dying, that the legal assessment of mental capacity and the absence of coercion become a little more onerous to determine. If there is physical capacity by the patient to complete paperwork, the above procedure could be implemented – either with a state-appointed committee or a patient designated committee. The preferential action at his point would be a remote interface with the court, where there would an actual legal assessment of capacity by a judge – this would be facilitated by any of a number of technologies presently available.

It must be emphasized that judicial oversight is critical to prevent systemic decay or a slide to apathy whereby these processes become executed by route. Judicial oversight offers an opportunity for dispute resolution in the event of conflicting interpretation of a prior directive, or some other dispute between affected parties.  People will argue this is onerous, it is a worthy assertion, that the nature of the endeavour requires heightened vigilance. If the process is designed with practical imperatives in mind, the courts’ oversight will be streamlined and prompt.  

Some supporting case law for consideration. 

     Domain over One’s Mind and Body

 

1. It is a most fundamental right to hold domain over one’s mind and body. The long-standing common-law tradition, its linage and importance are summarized in Fleming v. Reid. “The right to determine what shall, or shall not, be done with one's own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law …”

Fleming v. Reid, 1991 CanLII 2728 (ON CA) Part IV

2. This right was clearly communicated in Carter as follows:

 

[67] The law has long protected patient autonomy in medical decision-making. In A.C. v . Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this point), endorsed the “tenacious relevance in our legal system of the principle that competent individuals are — and should be — free to make decisions about their bodily integrity” (para. 39). This right to “decide one’s own fate” entitles adults to direct the course of their own medical care (para. 40): it is this principle that underlies the concept of “informed consent” and is protected by s. 7’s guarantee of liberty and security of the person (para. 100; see also R. v . Parker (2000), 49 O.R. (3d) 481 (C.A.)). As noted in Fleming v . Reid (1991), 4 O.R. (3d) 74 (C.A.), the right of medical self-determination is not vitiated by the fact that serious risks or consequences, including death, may flow from the patient’s decision. It is this same principle that is at work in the cases dealing with the right to refuse consent to medical treatment, or to demand that treatment be withdrawn or discontinued: see, e.g., Ciarlariello v . Schacter, [1993] 2 S.C.R. 119; Malette v . Shulman (1990), 72 O.R. (2d) 417 (C.A.); and Nancy B. v . Hôtel-Dieu de Québec (1992), 86 D.L.R. (4th) 385 (Que. Sup. Ct.).

 

[68] In Blencoe, a majority of the Court held that the s. 7 liberty interest is engaged “where state compulsions or prohibitions affect important and fundamental life choices”

 

(para. 49). In A.C., where the claimant sought to refuse a potentially lifesaving blood transfusion on religious grounds, Binnie J. noted that we may “instinctively recoil” from the decision to seek death because of our belief in the sanctity of human life (para. 219). But his response is equally relevant here: it is clear that anyone who seeks physician-assisted dying because they are suffering intolerably as a result of a grievous and irremediable medical condition “does so out of a deeply personal and fundamental belief about how they wish to live, or cease to live” (ibid.). The trial judge too described this as a decision that for some people is “very important to their sense of dignity and 9/2/2020 Carter v. Canada (Attorney General) - judge, too, described this as a decision that, for some people, is very important to their sense of dignity and personal integrity, that is consistent with their lifelong values and that reflects their life’s experience” (para. 1326). This is a decision that is rooted in their control over their bodily integrity; it represents their deeply personal response to serious pain and suffering. By denying them the opportunity to make that choice, the prohibition impinges on their liberty and security of the person. As noted above, s. 7 recognizes the value of life, but it also honours the role that autonomy and dignity play at the end of that life. We therefore conclude that ss. 241 Ž(b) and 14 Ž of the Criminal Code Ž, insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, infringe the rights to liberty and security of the person.

 

Presumption of Capacity & Guardianship

 

5. “The Court noted that under the Health Care Consent Act (Ontario) there was a presumption that people were capable of making treatment decisions and that the onus rested with those who challenge the presumption to establish incompetence. Further, the Court examined the two-part test under the Act for determining whether a person was capable of making treatment decisions: first, the person has to “understand the information that is relevant to making a decision about treatment;” and, second, the person has to be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

Excerpt from Case Study of Starson v. Swayze.

6. “The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act. Capacity involves two criteria: first, a person must be able to understand the information that is relevant to making a treatment decision and second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one.”

Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 Page 2

7. In Fleming the court supported the notion of “the presumption of capacity” and capacity’s retention and displacement in much the same manner as Starson “Mentally competent" is defined in s. 1(g) as: ... having the ability to understand the subject-matter in respect of which consent is requested and able to appreciate the consequences of giving or withholding consent ...”.

Fleming v. Reid, 1991 CanLII 2728 (ON CA) Part

 

 This infographic is included to demonstrate how legislation can allow a circumstance of extreme abuse of civil rights. The use of medical opinion and medical personnel in the administration of legal concern is a very dangerous circumstance. What has transpired in British Columbia in relation to the BC Mental Health Act is grave enough, people's liberty is arrested absent access to fundamental law, they do, however, normally manage to survive. One would loath to witness such a devolution in the administration of law related to something as permanent as assistance in dying. 

 

Case Review - 20 YEARS SEEKING JUSTICE

 

Neil E. Thomson Case Review

20 YEARS SEEKING JUSTICE

Click the links below for more reading.

Additional Reading related to the BC Mental Health Act.

Additional Reading - Federal Obligation

This document communicates the details associated with my 20-year long battle to be free of the effects of the misdirected British Columbia Mental Health Act and related legal processes. Despite my best efforts, an injustice has occurred. Perhaps, more importantly, a horrible precedent has been left in my wake. I am seeking to remedy the injustice and an errant precedent.

If anyone reading this document requires supporting documentation, please contact the writer. 

Introduction

 Document Purpose

This document is intended for submission to people and institutions of authority to both inform and to prompt action on their part. The writer seeks to right his own circumstance and is equally engaged in seeking reform to the British Columbia Mental Health Act (MHA).

To right the writer’s circumstance preferably, the remedy would be granted as pleaded in the writer’s Notice of Civil Claim (BCSC file # 058632), or alternatively, there would be an order granted to allow a trial on the case’s merits in the forum authorities deem appropriate. At a minimum, the writer seeks direction and support in the furtherance of his pursuit of justice.

Herein, there will be a review of the process and the most prominent statutes that have come to bear on the writer, authorities will be informed of charter breaches and infringements peculiar to the writer’s case, charter breaches inherent in the MHA itself, and impugned sections in related acts. The writer seeks to have the MHA reformed to subordinate it to the Charter of Rights and Freedoms.

Situation Analysis

The Government of British Columbia and its subordinates have effected an injustice. One expects a legal process that responds to a legitimate complaint, that applies the law to the facts, attends to fundamental law, respects long-held judicial imperatives, and holds justice paramount. What has transpired in the writer’s case is the opposite of this expectation. What has happened has been a miscarriage of justice due to the application of a statute, the MHA, that fails in every way to attend to fundamental law, common law imperatives, and fails to provide any meaningful judicial oversight. Further, the inferior process in the form of the MHA Review Panel Process (RPP) sullied further court process – both, the MHA statutory review provisions pursued at BC Supreme Court (BCSC) and the ensuing civil process pursued by the writer at the BCSC.

When this case became the subject of Notice of Civil Claim at the BCSC, technicalities trumped justice, the facts of the case never have been heard and the case never tried, due to an over exuberant attention to technical elements of the law obstructing just outcomes. The technical elements of the law relied on by the defense were insufficient and the writer will demonstrate in the following pages there was plenty of judicial leeway to accommodate the pursuit of justice.

In my view, when all of the various factors, tests and considerations are taken together, the importance of the integrity of the trial process – the search for the truth through evidence – is an overarching consideration.

VARCO CANADA LIMITED VARCO, L.P. WILDCAT SERVICES, L.P. and WILDCAT SERVICES CANADA, ULC Para 22

 

The courts must come to see that under the MHA, discrimination begins UPON ACCUSATION before mental infirmity has been proven, there is no obligation placed on authorities to “prove” infirmity, none of the safeguards that are the product of 400 years of legal process aimed at protecting against arbitrary or illegal detention are attended to, once ensnared in the MHA’s “legal” apparatus the accused encounters a gross asymmetry in power in favour of the accuser. There are 20,000 people detained by the MHA in British Columbia every year, it is the opinion of the writer, EVERY PERSON DETAINED HAS BEEN DETAINED ILLEGALLY.

In McCorkell v. Director of Riverview Hospital, 1993 CanLII 1200 (BCSC) (one of leading pieces of law influencing the administration of the MHA), Justice Donald speculates on behalf of British Columbians, “in determining the fairness of the balance, I take into account my perception that Canadians want to live in a society that helps and protects the mentally ill and that they accept the burden of care which has always been part of our tradition.” One may also speculate that British Columbians want to live in a society that protects us all from illegal detention, the fact these protections are absent for those accused of mental infirmity is clearly confirmed in a report from the Ombudsperson of British Columbia and the writer hastens to point out, anyone can be accused of anything. 

In McCorkell v. Director of Riverview Hospital, 1993 CanLII 1200 (BCSC), Justice Donald states “Statutes dealing with criminal law are penal in nature; incarceration is a punishment of culpable individuals and serves the objectives of public safety and denunciation of crime.  The Mental Health Act involuntarily detains people only for the purpose of treatment; the punitive element is wholly absent… ” The protections afforded all people against the illegal or unjust application of state power are antecedent to any other concerns in the administration of law. People are brought under the MHA due to a set of behaviors that falls out of step with society at large, at times these behaviors include criminal elements. It is the state’s first order of business to attend to public safety and the safety of the subject individual, if it is then proven the person is mentally infirm, then the need for treatment rather than punishment is determined. This is the only sequence of events that can protect against wrongful detention byway of the MHA and the law generally. In the years after McCorkell, there has been widespread abuse and misdirection of the powers associated with the MHA.

With respect, as the Courts have been ruling, there has been a perilous circumstance left in place. The courts, in this case, have allowed a precedent to emerge that sends the message that medical personnel can arbitrarily detain people on an accusation only, that a government corporation (Interior Health Authority (IHA)) can deploy greater material resources to suppress the rights of an individual, that IHA, who by their own reckoning entered the writer’s life unnecessarily – can ignore the writer’s plight and carry on with impunity, that the government generally can ignore Charter imperatives, fundamental law and flout the paramountcy of the Supreme Court of Canada (SCC). The regionalization of the medical system in British Columbia has created massive corporations in the form of Regional Health Authorities, while the personnel within them are overwhelmingly good, the structure itself is impersonal, impenetrable, and indifferent – despite all the writer has done for two decades, IHA and the government have failed to respond to him in any meaningful way – they have failed to respond because the courts have failed to exercise their discretion and authority to remedy the situation.

As a person severely affected by the MHA’s errant application, the writer is unable to express his profound dismay at the outcome the courts have permitted – attending to legal process has been as taxing as attending to all the pain that has wrought his life since the MHA came to bear upon him. The writer was once a believer in our justice system – he had always thought if there were justice to be done that the system would maintain the right, attend to peace order and good governance, and protect his rights. The facts of this case make it clear that neither the accusation of mental infirmity nor the process used to detain the writer were valid. The fact is the MHA has impugned sections that makes its application in every case illegal, as the MHA flouts the SCC’s interpretation of charter rights.

The writer has had to abandon the conventional pursuit of remedy through the courts due to the defendant’s threatening costs, applying for costs, and the courts awarding costs in some cases. In all legal process, the writer engaged in, up to the point of filing a Notice of Civil Claim in July 2016, the writer only asked for the restoration of his rights, the restoration of his good name and social standing, for IHA to expunge records associating him with a mental infirmity and for IHA to attend to critical public interests related to detention, privacy, and other areas of operations. In 2016, it became clear that the Government, IHA, and medical personnel were indifferent to the damage they caused and the plight of the writer. Considering this indifference and the intransigence of the Government and is subordinates, the writer has sought pecuniary relief.

 

The effective use of procedure should never determine a legal outcome, the law applied to facts should determine a legal outcome. A citizen, having sought the court’s services to arbitrate a dispute, deserves, in the absence of counsel or legal knowledge, the court’s best efforts in forwarding their case toward a just outcome.

 

 Documents & Data

Abbreviations Often Used Here & Through Out Documents

1. MHA or BCMHA – British Columbia Mental Health Act.
2. HCHFA - HEALTH CARE (CONSENT) AND CARE FACILITY (ADMISSION) ACT.
3. Limitations Act – BC Limitations Act. – Often differentiated by “old” & “new”
4. RIH – Royal Inland Hospital
5. MHSU – Interior Health Authority – Mental Health and Substance Use
6. IHA – Interior Health Authority
7. HMQ – “Government of British Columbia” and “Her Majesty the Queen in Right of British Columbia”
8. CR&F – Charter of Rights and Freedoms
9. RPP – MHA Review Panel Process
10. SLR – Self Represented Litigant

Access to Case Data

11.  The file numbers are provided in the Chronology Below.

12.  There was a publication ban on BCSC File No. 053209, it was placed there by court order and was vigorously opposed by all three of the defendants.

13.  In August of 2020 there was a hearing in Kamloops, the Publication ban was lifted by consent.

a.    The writer has attempted to conceal the accusation of mental infirmity from the public eye. Regardless of his efforts, the accusation became public knowledge. Given this reality it is the writer’s desire to speak publicly about the accusation itself and the related legal processes; as, in the absence of a withdrawal of the accusation by the government and subsequent gazetting, the only means to attempt to mitigate the damage done is to seek reprieve in the “court” of public opinion.

14.  At the time of writing, the writer has been unable to access his case data via Court Services On-Line. Despite several attempts to remedy the situation by communicating his challenges to CSO and the Kamloops registry, he is still unable to access case data. Nor has either, CSO or the Kamloops Registry been able to provide a court-generated chronology of his cases, as does the SCC, for example. The staff at the Kamloops Registry have been helpful in attempting to provide the data requested, they have explained there are systemic challenges that preclude them from being able to respond as requested.

15.  Members of the court will be able to access the data directly. Any other individual that requires data can contact the writer and he will attempt to retrieve data for you.  

Addendums – Notice of Civil Claim, Covering Affidavit & Case Overview

16.  These documents consist of, a 15 page Notice of Civil Claim, a 9 Page Affidavit, a Case Overview 14 Tabs – including a Tab 13B, two reports (new evidence) – the affidavit, Case Review and reports are in a single file and the document is 695 Pages in length.

17.  Case Review

a.    Please note that on several occasions the Case Overview was entered into court process under cover of an affidavit. The facts therein are believed true and accurate by the writer. There are estimates made in some secessions that are a product of judgment, the writer believes them to be a fair representation of reality.

b.    The writers understanding of the law has evolved to some degree since the document was prepared, however, the document has been used throughout court processes; so consistency seems to have value – so it remains unchanged.

c.     Further, it was prepared hastily in preparation for a hearing and the writer is absent the resources to retain an editor, if a reader requires clarification on any point(s) in the document please contact the writer.

d.    The writer apologizes for any legibility challenges – if there is specific data obscured due to the way the document was compiled, the writer will forward supplemental data as required.

18.  The file names are as follows:

 

19.  The precedents referenced throughout this document are readily available at Canlii.org. All statutes referenced can be accessed online readily as well.

20.  If any party needs hardcopies, the writer will attempt to provide them upon request.

Overview of Legal Processes to Date

Case Chronology of Relevant Events

Commentary on Legal Process

Overarching Proposition

21.   Whereas, the defendant’s needlessly used the MHA to detain the Writer, and whereas, the Defendants were informed of the Writers discontent with their presence in his life, and whereas, the defendants heavy handedly executed the involuntary provisions in the MHA, and whereas, the Writer pursued every possible option for remedy as directed by the statutes and other government literature, and whereas, his efforts to reclaim his person where thwarted by more heavy-handedness, and whereas, by the defendants own reckoning their intervention was unwarranted and again by their own reckoning, the processes they have to protect the rights of those accused of mental infirmity are miss managed, inaccessible, and by extension, flout fundamental law, and whereas, the defendants refused to accommodate any request by the Writer for remedy, and by failing to retract the accusation of mental infirmity they are injuring the Writer by omission, and whereas, it is clear the affront to the Writer has been exacerbated by him being run through a mill of protracted legal process needlessly, the legal process itself is part of a linear and contagious series of events that represents a continuing violation against the writer’s rights and continues to this day to effect grievous harm upon him and given the gravity of these offenses, the Writer submits the remedy sought in his Notice of Civil Claim of February 12, 2020 is justified or, at a minimum, the case should proceed on its merits.

The Legal Complex Associated with MHA is Inherently Prejudicial – Especially for the Indigent

22.  The MHA - RPP effects an asymmetry in power in favour of the accuser. The prosecuting entity is a professional witness, it (the treating medical professional) generates “evidence” on its own opinion and collateral information then submits it to the RP. The RP accepts the “evidence” as professional opinion – the accused has only their own testimony to rely on. This is equivalent to a Crown Attorney writing “guilty” on a piece of paper, handing it to the Judge and having the Judge accept it.

23.  There are many circumstances where people absent funds can seek counsel on a contingency basis. It is the experience of the writer that lawyers are unwilling to go into mental health law actions on this basis. Further, garnering legal counsel on any basis is difficult, there are few who practice in the area of mental health law, this is the case in part due to most mental health law in British Columbia is taking place outside the courts. Assuming the legal process associated with the RPP and mental health generally in British Columbia were fair and adhered to proper due process, the absence of funds for legal counsel is prejudicial.

24.  In the absence of funds, one is faced with being a self – represented litigant (SRL). The judicial system is hostile to SRLs – it is a case of the courts beardly tolerating SRLs, rather than, as it should be, facilitating SRL’s. One should note, that access to the legal library has been helpful and there are people “in the system” who offer direction to the extent they are allowed. In the main, however, the system is unduly arcane. 

25.  As the only SRL in the province’s history to mount an MHA Section 33 challenge, the writer can attest to what a taxing and futile undertaking it was. It was worse than futile, it was damaging. The justice involved narrowed the scope of review effectively to a single and most recent RPP, a RPP where the appointed chair had added language to the proceedings that had never been applied prior. As a result, the reasons that the justice generated mischaracterized the writer and represented an escalation in the damage caused by the defendants.

Court Proceedings Post July 2016

26.  After having appealed to the government directly in every way possible, the writer chose to file a Notice of Civil Claim. The writer entered this legal process as a SRL as no counsel was available to him. The writer had no other option to seek remedy, every avenue suggested to him by government literature had been pursued. The legal counsel for the defendants has an obligation to pursue a fulsome defense by whatever means the process allows, and they did their jobs effectively. The writer bears them no malice personally; their competence is appreciated. The writer does bear malice toward a collection of “legal” processes that were unfair, took his good name, illegally detained him, forced him to consume pathogenic substances, assaulted his dignity, maligned his person, reduced him to subsistence, exacerbated the harms already inflicted and resulted in the loss of his home and family. As a SRL, photocopying exceeded the funds available to the writer. The defense had professional lawyers (three) from large firms with the resources to garner professional opinions and any other facet associated with prosecuting the case. At the BCCA, the reasons indicated that the RPP decisions substantiated the lower courts (BCSC) decision.

27.  A turning point in the first BCSC case was the hearing that isolated the proceedings to limitations only. The writer asked to broaden the scope of the proceedings to review the entire factual and legal breadth of the case. The writer argued that there were facts and law that the review of would weigh on limitations issues – by way of example – determining if the initial apprehension and detention were legal or not. The writer was refused, the hearing was two days instead of four days and the facts of the case have never been tried.

28.  The BCSC proceedings required several preliminary hearings and a summary hearing on limitations in which the justice dismissed the case. The BCCA process failed to consider the full breath of the pleaded facts and law – and accepted the same flawed evidence that wrought the BCSC process.

29.  The first Civil Claim took three years to effect an injustice.

30.  On the strength of new evidence in the form of two reports, one by the Community Legal Assistance Society and a report prepared by the Ombudsperson the writer filed a “new” Notice of Civil Claim. Both reports condemned the MHA and its administration. Both brought into resolution a widespread abuse of charter rights and other structural problems.

31.  The court dismissed the claim on the basis of the doctrine of res judicata, in the face of the new evidence that substantiated the writer’s claims and ignoring the fact the matrix of facts in the claim had never been tried.

32.  The writer has been taxed financially and personally to the limit. The courts awarded costs to the defendants.  No remedy of any kind has come to the writer, no quarter has been given with respect to the fact that faulty process has effected an injustice, faulty process reported by an officer of the legislature. There has been plenty of opportunity for the courts to exercise discretion to allow a fulsome hearing of the case on its merits, they have chosen to do otherwise.  

33.  Once again, the writer is unable to express strongly enough his dismay with the entirety of the governmental response to his plight – the governmental response has been untrue, unjust, unfair, unkind – there has been cold indifference to his interests and important public interests. One is unable to understand HOW so many people have let this go unattended. One is unable to understand why the MHA goes unchecked. The process has most certainly effected disillusionment regarding the legal process; it calls into question the validity of the process.

Initial Apprehension and Detention – Arbitrary

 Overarching Proposition

 

34. Whereas, Doctors Buller & Maybe activated the MHA emergency measures provisions (MHA Section 28 (3)) unnecessarily, with undo regard to the overarching purpose of the MHA involuntary provisions (MHA Section 22), which is to care for severely mentally ill people and, whereas, it can be inferred from their own actions, they did so in the absence of any real emergency and absent the belief the writer had a ‘serious” mental illness, and further in later years, the entire undertaking was deemed unnecessary by a Community Review, the writer now asserts that the MHA was applied arbitrarily resulting in the writer’s illegal apprehension and detention.

 

Chronology of Relevant Events

 

Date	Description	Steps Taken
Pre 1998	The Writer Reported to family that there were synchronistic activities on the part of a group or groups affecting his life.
1998	The Writer reported to the Kamloops RCMP regarding said activities. They assured him it was not happening.	No steps were taken by the Kamloops RCMP to the Writers Knowledge
1999	Family members suggested the Writer should request a referral to see a Physiatrist because they were concerned, he agreed to appease them - knowing that the distress he was experiencing was a product of other’s actions, as opposed to anything organic.	The Writer attended Dr. Buller’s Office in with the intention of putting people’s minds at ease. See Letter Page 10
July 10, 1999	Dr. Mabee writes a referral for Writer to see Dr. Buller	The only interface with respect to mental illness with Dr. Mabee was in regard to the referral. There was no interface with respect to mental illness. The Writer expressed concern regarding being associated with mental infirmity.
September 28, 1999	½ hour appointment with Dr. Buller
October 28, 1999	Ex 1 Pg. 1 Letter Buller to Mabee
June 1999	The Writer deemed the activities of concern were “local”, so he thought it prudent to report to the Kelowna RCMP, they suggested his complaints were vague and stated they were unable to help.	No steps were taken by the Kelowna RCMP to the Writers Knowledge
Dec 14, 1999	½ hour appointment with Dr. Buller
Dec 14, 1999	¼ hour appointment with Dr. Mabee	Unrelated to mental health issues
June 12, 2000	½ hour appointment with Dr. Mabee
June 16, 2000	½ hour appointment with Dr. Buller
June 21, 2000	The follow-up appointment with Dr. Buller resulted in a letter to Dr. Mabee exclaiming “increased symptoms”.	No action taken   See Letter Page 17
October 4, 2000	½ hour appointment with Dr. Buller
October 5,  2000	Dr. Buller writes a letter that indicates he is contemplating actuating the involuntary measures of the MHA. No discourse was directed to the Writer that apprehension was imminent, and no warning was provided.	No Action Taken, events indicate that Doctors Mabee and Buller had discourse between themselves and apparently with members of the Writer’s family. See Letter Page 19
	At this point there had been four appointments with Dr. Buller totaling 2 hours of interface with the Writer, most of which was collecting history and there had be no “observation” by doctors outside these office visits. Review of the materials indicates that Dr. Buller relied on collateral information to make the decision to incarcerate the Writer.	On the assertion by the Writer that there was a group or groups of people affecting his life and Dr. Buller disbelieving the Writer, and the opinions of lay people the following steps were undertaken.   There has never been any expression of concern for harm to self or others, in fact, doctor Mabee notes in the referral to Dr. Buller – NON-VIOLENT – in capital letters.  See Page 24 of the Evidence
October 30, 2000	appointment with Dr. Buller
October 30, 2000	appointment with Dr. Buller
October 31, 2000	Dr. Mabee (apparently) in collusion with Dr. Buller and family members organized the Writer’s apprehension and incarceration.   The Writer at this point had never personally interfaced with Dr. Mabee on the subject of mental infirmity, save on one occasion to be referred to Dr. Buller. That is to say, Dr. Mabee had no firsthand knowledge of the Writer’s state of mind.	Dr. Mabee FORM 9 – APPLICATION FOR THE APPREHENSION OF A PERSON WITH AN APPARENT MENTAL DISORDER Quoted from form 9 comment section. Reason Given: “Neil has a mental disorder with delusions of grandeur that are affecting his life and that of his family. He refuses treatment. He even refuses to admit he has a problem. He requires treatment in a special unit 1 south of Royal Inland Hospital” Please See Page 13 Form 9
October 31, 2000	Never having interfaced with Dr. Mabee on the subject of mental infirmity or involuntary treatment, the Writer is unsure how Dr. Mabee arrived at this conclusion or chosen course of action. Apparently, he was having difficulty deciding what the Writer’s diagnosis was as it changed from one day to the next and was inconsistent with Dr. Buller’s diagnosis.	Dr. Mabee filed a FORM 4 CERTIFICATE FOR INVOLUNTARY ADMISSION at the Kamloops Court Registry. Quoted from form 4 comment section. Reason Given: “Neil Thomson has a paranoid disorder that is affecting his daily life and that of his family. He requires treatment in [a] special unit on 1 south at Royal Inland Hospital. He refuses treatment on an involuntary basis.” Please See Page 14 Form 4
October 31, 2000	Judge Sundhu had no means by which to determine reasonable delay.	Based on Dr. Mabee’s application to the court Judge Sundhu issued a warrant for APPREHENSION OF A PERSON WITH AN APPARENT MENTAL DISORDER. Please See Page 16[1]
November 1, 2000	ON the issuance of the warrant the RCMP arrived at the Writer’s home in the morning while he was working in his office. He had no notice the RCMP were coming and no opportunity to report in with legal counsel absent the RCMP being activated.	RCMP apprehended the Writer and took him to RIH 1 South
November 1, 2000	The Writer was incarcerated because he refused medication. All accusations were directed at social and economic concern; there was no expression of concern from the perspective of harm to self or others.	Dr. Buller Completed a FORM 4 CERTIFICATE FOR INVOLUNTARY ADMISSION at RIH   Quoted from form 4 comment section. Reason Given: “Suffering from a paranoid delusional disorder, this is affecting his emotional, physical financial, occupational and family life health. Has no insight, refuses treatment (specifically medication), requires????” Please See TAB 6 Page 15 Form 4
November 1, 2000	Diagnoses: Delusions of grandeur Paranoid disorder Paranoid delusional disorder Other Considerations Dr. Mabee the actuating doctor had performed no physiological examination of the Writer Dr. Buller’s “observations” consisted of 2.5 hours of discourse with the Writer over a period of 1 year, most of the time was spent collecting information. No effort was expended to refute the Writer’s plausible claims, in fact, he was instructed to prove that his claims were true.	From the point that the doctors began the process of apprehension and incarcerations under sections 22 and 28 of the MHA nearly a full month lapsed.   There were other options for apprehension that would have avoided damaging the Writer’s standing in his community. They could have called to have the Writer attend an office or RIH They could have come themselves. RCMP could have used an unmarked car and plain clothed officers   NO EMERGENCY
November 3, 2000	The Writer was permitted to return home having had 3 doses of 5 mg of Olanzapine.	Released on “day passes” with the requirement I could take medications “on the ward” – in practice I was only returning at 7 pm at night to take medications. Please See TAB 6 Page 23 Nurses Notes.
November 16, 2000	The Writer reported the actions of a group or group(s) in his life, Dr. Buller refused to believe him and incarcerated him, because as he reported, the Writer refused to take medications. The Writer entered the Review Panel process in a defacto position of reverse onus, because the accusation of mental infirmity, due to the forms doctors filled out was now an indictment.	1st Review Panel

 

Facts

35. All actions taken by the defendants occurred against the writer’s will and absent his consent.
36. The writer was gainfully pursuing business opportunities at the time he was apprehended.
37. The writer had no history of violence, no criminal record – he was an upstanding citizen.

Dr. Mabee Referral Tab 6 Page 24

Dr. Buller’s letter to RCMP Tab 6 Page 22

38. Dr. Buller asserted the Writer required medication and held compliance with medication as his primary reason for the Writer’s detention.
39. Dr. Buller initiated the MHA to force the use of medication and then forced compliance under the threat of re-incarceration, which he did on several occasions. When the writer refused treatment Dr. Buller would send RCMP the writer’s home(s) for apprehension, re-inflicting harms by making public his accusation of infirmity against the writer.
40. The Writer constantly stated his opposition to medication throughout his association with the defendants.
41. Had there been a proper legal forum to administer the legal test for capacity as directed by the Supreme Court of Canada in Starson v. Swayze, the writer would have been deemed to have mental capacity sufficient to make medical decisions.
42. The fact that the writer had capacity is supported by the following documents.

Tab 7 Page 34 Tab 14 Page 5 Para 18

43. April 3, 2012, a Community Review Panel stated there was “no significant change with the stopping of medication”.

 

Statutory Interpretation – The Purpose of Involuntary Admissions and detentions.

 

44. The purpose of involuntary admissions and detentions under the Mental Health Act is “to treat and protect people with severe mental disorders and to protect the public.”39

Ombudsperson's Report Page 19

45. “The purpose of the Act is manifestly plain: the treatment of the mentally disordered who need protection and care in a provincial psychiatric hospital.” Then again, the “purpose of the legislation which is to help seriously mentally ill people in need of protection.”      

McCorkell v. Director of Riverview Hospital, 1993 CanLII 1200 (BC SC)

46. The challenge that arises in interpreting the MHA’s involuntary provisions is that there is no clear direction on how to define “seriously mentally ill” and what the thresholds are regarding personal and public safety.
47. Implicit in "treat" is HELP. Also, a well-understood imperative for medical personnel is to do NO HARM
48. There is a definition of a Mentally Ill Person in the MHA, it is a follows:

"person with a mental disorder" means a person who has a disorder of the mind that requires treatment and seriously impairs the person's ability (a)to react appropriately to the person's environment, or (b)to associate with others.

49. Given the MHA fails to define “seriously mentally ill” in contrast to a person with a mental disorder, it helps to go to other jurisdictions for direction.
1. “serious mental illness” means a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs a person’s behavior, judgment, capacity to recognize reality or ability to meet the ordinary demands of life but does not include an intellectual disability.

An Act Respecting the New Brunswick Mental Health Act Assented to March 31, 2017

 

2. [53] As a class (although there may well be individual exceptions within that class), persons who suffer from a mental disorder of such a nature or degree as to require hospitalization for their own safety or the safety of others, are, in general, not competent to instruct counsel, nor would counsel accept and act upon the instructions of one who was, at the time, suffering from such a disability.

Reference re Procedures and Mental Health Act (PE) Para 53

 

Contextualizing the Purpose of Involuntary and Emergency Provisions of the MHA to this Case

 50.  There has been no evidence presented to indicate that either a or b of the BC MHA's definition of a            person with a mental illness were a factor in the Writer's life on the day in 2000 when the RCMP were         sent to apprehend him, on the contrary, the RCMP commented on how co-operative the writer was and         polite. There was no evidence then and never has been evidence presented (that meets the standards of         the BCSC or common law generally) to support the defendant's accusation of mental infirmity - never         mind a "severe mental disorder". 

 

51. The day the Police attended the writer’s home, he was working in his office.

 

52. The writer had never been convicted of a crime, never committed an act of violence, never indicated inclination toward suicide - he was an upstanding productive husband and father. The overriding purpose of the MHA is to help, to treat mentally ill people. The Purpose of the involuntary provisions in the MHA are to treat severely mentally ill people and to protect the public.

 

53. The purpose of engaging the use of force is clearly defined in common law as set out in Para 145 in Mullins.

Mullins v. Levy, 2009 BCCA 6

54. It is clear, that none of the actions taken were justified in any way, and the defendant's actions effected a circumstance that is the opposite of the purpose of the MHA – the defendants’ actions caused a multitude of harms.

55. Further, similar offenses are indicated to be occurring across the province, …

 

1. "For example, one representative recounted representing a client whose treating physician kept her detained so that she would not travel home to visit her family over the holidays because the physician believed that the journey would be stressful for her. Another representative reported cross-examining a physician at a review panel who stated that she wanted to impose a healthier lifestyle on her patient by keeping her detained to ensure she did not smoke cigarettes or drink alcohol. Both detainees in these examples were released by order of the review panel because they did not meet the criteria for detention."

Operating in the Dark - Page 31 

2. The phrase “substantial mental or physical deterioration” in the civil mental health detention context has been interpreted to mean deterioration that is “considerable, consequential, ample, significant, sizeable”.31 Several representatives expressed concern that physicians often fail to assess whether potential deterioration rises to the level of substantial. Representatives gave examples of physicians pointing to the prospect that an individual may not eat properly, that an individual might smoke cigarettes, or that an individual might use substances, as evidence of potential substantial deterioration.

Operating in the Dark - Page  32

Re C.P., 2003 CanLII 15613 (Ont. C.C.B.), referred to with approval in Thompson and Empowerment Council v. Ontario, 2013 ONSC 5392 at paras. 116—117, aff’d 2016 ONCA 676.

56. The medical professionals in this case placed the writer in harm’s way by sending 4 armed RCMP officers to his home, detained him, forced him to take medication, made public the accusation of mental infirmity by their actions - on the ground he was essentially stressing his family.
57. It is clear, by the actions of the defendants, that there was no emergency and that the writer had never had a serious mental illness (he has never had a mental illness of any kind, save what the negligence of the defendant has effected) and they never believed he had a serious mental illness.
1. How can a doctor determine the presence of a serious mental illness when they have never spoken to the patient on the subject – as was the case with Dr. Mabee.
2. In December, approximately six weeks after the use of force, Dr. Buller and the writers wife at the time agreed the RCMP should return his firearms. That would be a clear indication that neither he nor the writer’s wife viewed him as either a threat to others or himself.

Tab 6 Page 22

3. Doctors Buller and Mabee conversed by LETTER regarding involuntary detention. It was nearly a full month between the time they conversed by letter to when the RCMP were activated. Serious Mental illness has as part and parcel a safety concern, when mental health personnel are dealing with a serious mental illness, they use a telephone, and the police are called to intervene. If either doctor had really believed the writer was any threat or threatened, they would be negligent to behave as they did, as it is, they are negligent because they behaved as they did as it was unnecessary and harmful.

Tab 6 Page 19

4. There was no justification for the use of force, no actions by the writer would activate the common law doctrine of necessity in emergency situations – no body was at risk.
5. After having exposed to the writer’s community, the accusation of mental infirmity against him, by activating the use of force in the form of 2 squad cars and four RCMP officers, the writer was released from hospital after 3 days of taking 5mgs of Olanzapine – that is less than a therapeutic dose and the writer can present evidence from later years where Dr. Buller indicates that months at 10, 20 mgs effected no change. Had the writer had a serious mental illness; he would have been held in hospital.

Tab 7s

6. The sole purpose of using force and involuntary measures was to force consumption of a pathogenic medication – it was later determined the medication had no beneficial effect.  The writer lives absent the use of these drugs and is in no way affected by their absence.

Tab 7 Page 35 Bottom of Matrix

58. There was no emergency and neither of the statutory requirements to determine a mental illness were present.

Analysis – Section 7 Charter Breach

 

59. Section 7 involves a two-step analysis:
1. Is there an infringement of one of the three (3) protected interests, that is to say, a deprivation of life, liberty or security of the person?
2. Is the deprivation in accordance with the principles of fundamental justice?

 

This second step may be broken down into two steps, where it is necessary a) to identify the relevant principle or principles of fundamental justice and then b) to determine whether the deprivation has occurred in accordance with such principles. (R. v. Malmo-Levine, [2003] 3 S.C.R. 571 at paragraph 83;  R. v. White, [1999] 2 S.C.R. 417 at paragraph 38; R. v. S.(R.J.), [1995] 1 S.C.R. 451 at page 479).

 

There is no independent right to fundamental justice. Accordingly, there will be no violation of section 7 if there is no deprivation of life, liberty or security of the person (R. v. Pontes, [1995] 3 SCR 44, at paragraph 47).

Department of Justice - Canada - Annotated Charter of Rights and Freedoms S 7

 Is there an infringement of one of the three (3) protected interests, that is to say a deprivation of life, liberty or security of the person?

 

60. Insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, ss. 241(b) and 14 of the Criminal Code deprive these adults of their right to life, liberty and security of the person under s. 7 of the Charter. The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.

Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII), [2015] 1 SCR 331(Carter)

 Preamble

Deprivation of Liberty

 

61. Restriction of movement – Detention under MHA Section 37
62. Surrender of domain over mind and body – revocation of the right to refuse medical treatment – Deemed Consent MHA Section 31 and several other acts.
63. Existing elevated risk of re-detention.
64. Suppressed liberty due to the release of private information.

 

Security of Person

 

65. Forced consumption of an unnecessary pathogenic substance.
66. Forced consumption of an unnecessary pathogenic substance that was contraindicated to a pituitary tumor the Writer was diagnosed with.
67. By the disclosure of private information resulting in stigmatization.
68. By the reckless disregard on the part of medical professionals for possible risks to the Writer caused by their actions. (Initial Apprehension)
69. The actions by defendants involved both a physical and psychological aspects.
70. Via stigmatization, detention and other means, the defendants obstructed the Writer’s access to a livelihood.

 

Is the deprivation in accordance with the principles of fundamental justice?

 

71. The MHA and the MHA’s administration flout fundamental law in many ways, please review Tabs 9 & 14 of the Case Overview for a complete discussion on the subject.
72. This section is peculiar to the arbitrary application of the MHA at the outset of the writer’s association with the defendants and that arbitrariness is substantiated by the findings of IHA themselves.
73. “The analysis in relation to arbitrariness, overbreadth and gross disproportionality is qualitative not quantitative — an arbitrary, overbroad or grossly disproportionate impact on one person suffices to establish a breach (Bedford, supra, at paragraph 123). Further, the impugned effect is measured only against the law’s purpose without regard to the law’s efficacy (Bedford, supra, at paragraph 125).”

Department of Justice - Canada - Annotated Charter of Rights and Freedoms S 7

74. There are nuances in the administration of Section 7 and Section 9 – an interplay, as section 9 is intended to protect against arbitrary detention which is a fundamental element of the law. The writer in this case was detained arbitrarily, yet the breaches to his rights extend beyond just arbitrary detention, they include other elements of liberty and security of person also. It seems prudent then to proceed with a section 7 claim, however, the section 9 analytical format has relevance here and will be used as a part of the overall assertion of arbitrariness.
75. The principles of fundamental justice include the principles against arbitrariness, overbreadth and gross disproportionality. A deprivation of a right will be arbitrary and thus unjustifiably limit section 7 if it “bears no connection to” the law’s purpose (Bedford, supra, at paragraph 111; Rodriguez, supra at 594-95; Malmo-Levine, supra at paragraph 135; Chaoulli, supra at paragraphs 129-30 and 232; A.C., supra, at paragraph 103).

Department of Justice - Canada - Annotated Charter of Rights and Freedoms S 7

76. The principle of fundamental justice that forbids arbitrariness targets the situation where there is no rational connection between the object of the law and the limit it imposes on life, liberty or security of the person:  Bedford, at para. 111.  An arbitrary law is one that is not capable of fulfilling its objectives.  It exacts a constitutional price in terms of rights, without furthering the public good that is said to be the object of the law.

Carter Para 83

77. The Supreme Court of Canada has developed a two-part test to use to contemplate the validity of a section 9 claim.

 

1. The individual has the burden of proving that he or she was arbitrarily detained or imprisoned. The analytical framework for determining whether a provision limits section 9 involves two steps: 1) was the individual detained or imprisoned? and 2) was that detention or imprisonment arbitrary? See R. v. Hufsky, [1988] 1 S.C.R. 621 at paragraphs 12-13.

Department of Justice - Canada - Annotated Charter of Rights and Freedoms S 9

 

Was the Writer Detained?

 

78. The writer was detained under the MHA Section 37 more or less consistently for 12 years against his will and without consent.
79. There were several instances when the writer was detained in hospital as a punitive measure to enforce the consumption of medications.
80. The “leave detention” required that the writer report to a pharmacy – a public pharmacy – to be observed taking mediation every day – this was a constraint on liberty, as an aggravating factor, it also daily exposed his association with mental infirmity to the public.
81. “Leave detention” also required that the writer stay in Kamloops. Requests for treatment in other centers were denied.

Tab 5 Page 6

82. “Leave detention” also involved IHA – MHSU personnel speaking to landlords, RCMP, Shop Owners and other members of the community which directly or by implication disclosed the writer’s association with mental infirmity.

 

Was the Detention Arbitrary?

 

83. Specific to the writer’s case and the utilization of both the involuntary and emergency measures, the MHA was applied in a manner the bore no connection to its purpose. It is clear the writer was absent a serious mental illness.
84. Further, the MHA was initiated and sustained absent any definitive proof of the writer having a mental illness, thereby, further substantiating the claim of arbitrariness. 
85. Further, the overriding aim of all medical treatment is to firstly, do no harm, and secondly, to effect positive change, and in the case of the MHA, to prevent harm to self or others – there was serious harm done by the actions of IHA and its subordinates, there was no positive outcome and there never was a threat of harm to self or others.
86. … laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object …

Carter Para 72

 Rubric of Deemed Consent

 Deemed consent to treatment and request for a second opinion MHA Section 31

Domain over One’s Mind and Body

 

87. It is a most fundamental right to hold domain over one’s mind and body. The long-standing common-law tradition, its linage and importance are summarized in Fleming v. Reid. “The right to determine what shall, or shall not, be done with one's own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law …”

Fleming v. Reid, 1991 CanLII 2728 (ON CA) Part IV

88. This right was clearly communicated in Carter as follows:

 

[67] The law has long protected patient autonomy in medical decision-making. In A.C. v . Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, a majority of this Court, per Abella J. (the dissent not disagreeing on this point), endorsed the “tenacious relevance in our legal system of the principle that competent individuals are — and should be — free to make decisions about their bodily integrity” (para. 39). This right to “decide one’s own fate” entitles adults to direct the course of their own medical care (para. 40): it is this principle that underlies the concept of “informed consent” and is protected by s. 7’s guarantee of liberty and security of the person (para. 100; see also R. v . Parker (2000), 49 O.R. (3d) 481 (C.A.)). As noted in Fleming v . Reid (1991), 4 O.R. (3d) 74 (C.A.), the right of medical self-determination is not vitiated by the fact that serious risks or consequences, including death, may flow from the patient’s decision. It is this same principle that is at work in the cases dealing with the right to refuse consent to medical treatment, or to demand that treatment be withdrawn or discontinued: see, e.g., Ciarlariello v . Schacter, [1993] 2 S.C.R. 119; Malette v . Shulman (1990), 72 O.R. (2d) 417 (C.A.); and Nancy B. v . Hôtel-Dieu de Québec (1992), 86 D.L.R. (4th) 385 (Que. Sup. Ct.).

 

[68] In Blencoe, a majority of the Court held that the s. 7 liberty interest is engaged “where state compulsions or prohibitions affect important and fundamental life choices”

 

(para. 49). In A.C., where the claimant sought to refuse a potentially lifesaving blood transfusion on religious grounds, Binnie J. noted that we may “instinctively recoil” from the decision to seek death because of our belief in the sanctity of human life (para. 219). But his response is equally relevant here: it is clear that anyone who seeks physician-assisted dying because they are suffering intolerably as a result of a grievous and irremediable medical condition “does so out of a deeply personal and fundamental belief about how they wish to live, or cease to live” (ibid.). The trial judge too described this as a decision that for some people is “very important to their sense of dignity and 9/2/2020 Carter v. Canada (Attorney General) - judge, too, described this as a decision that, for some people, is very important to their sense of dignity and personal integrity, that is consistent with their lifelong values and that reflects their life’s experience” (para. 1326). This is a decision that is rooted in their control over their bodily integrity; it represents their deeply personal response to serious pain and suffering. By denying them the opportunity to make that choice, the prohibition impinges on their liberty and security of the person. As noted above, s. 7 recognizes the value of life, but it also honours the role that autonomy and dignity play at the end of that life. We therefore conclude that ss. 241 Ž(b) and 14 Ž of the Criminal Code Ž, insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, infringe the rights to liberty and security of the person.

Nature of Consent

 

89. It is the very nature of “consent” that it can only be granted and never imposed. A point made Rafferty v. Power “… Consent is a voluntary act of will. Forced consent is a non sequitur. A court cannot make an involuntary act a voluntary one … “

Rafferty v Power [1993] B.C.J. No. 173

Mund v. Braun, 2010 BCSC 1714 (CanLII) Para 38 – Cluster of related caselaw

90. The presumption of capacity is also a longstanding element of common law.

Health Care (Consent) and Care Facility (Admission) Act Section 3

Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 Page 2

Presumption of Capacity & Guardianship

 

91. “The Court noted that under the Health Care Consent Act (Ontario) there was a presumption that people were capable of making treatment decisions and that the onus rested with those who challenge the presumption to establish incompetence. Further, the Court examined the two-part test under the Act for determining whether a person was capable of making treatment decisions: first, the person has to “understand the information that is relevant to making a decision about treatment;” and, second, the person has to be “able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

Excerpt from Case Study of Starson v. Swayze.

92. Under the rubric of deemed consent the presumption of capacity is ignored. There is no functional independent assessment of capacity as a safeguard as there is in other jurisdictions in Canada.  The right to give, refuse or revoke consent to health care is withdrawn from people accused of having a mental illness.

Health Care (Consent) and Care Facility (Admission) Act Section 2

93. The right to delegate treatment judgement is arrested under the rubric of deemed consent and all treatment decisions reside with the institution.  The director of the institution holds final authority over all treatment, in practice however, treatment decisions reside with, and are arbitrarily dictated by, the treating physician.

Health Care (Consent) and Care Facility (Admission) Act Section 2 & 16

BC Mental Health Act. Section 8

94. The only recourse available to an individual detained under the MHA or a family member is Section 33 which provides for review by a BCSC Justice. The writer in this case, and one other, are the only individuals that have attempted to use this section. The challenge this section presents is all the “substandard” “evidence” “created” in the Review Panel Process in effect “corrupts” this review. Essentially, the Justice is tasked with making sure forms were filled out correctly. A circumstance emerges that finds parallel in the adage from computer programing “garbage in, garbage out”. As with many aspects of the MHA, this is disturbing, particularly when one contemplates there were some 20,000 people affected by the MHA each year.

BC Mental Health Act. Section 33

Operating in the Darkness:  BC’s Mental Health Act Detention System Pg. 16 & 154          

95.  “The presumption of capacity can be displaced only by evidence that a patient lacks the requisite elements of capacity provided by the Act. Capacity involves two criteria: first, a person must be able to understand the information that is relevant to making a treatment decision and second, a person must be able to appreciate the reasonably foreseeable consequences of the decision or lack of one.”

Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32 Page 2

96. In Fleming the court supported the notion of “the presumption of capacity” and capacity’s retention and displacement in much the same manner as Starson “Mentally competent" is defined in s. 1(g) as: ... having the ability to understand the subject-matter in respect of which consent is requested and able to appreciate the consequences of giving or withholding consent ...”.

Fleming v. Reid, 1991 CanLII 2728 (ON CA) Part

97. In this case, the writer was apprehended, detained and forced to treatment absent any independent assessment of capacity; had the legal test been applied, the writer would have been deemed to have capacity.

 

Subordination to Federal Paramountcy Required – Capacity and Deemed Consent

 

98. The Charter contains three provisions that govern the granting of remedies where there is a finding of unconstitutionality. Section 24(1) provides remedies against unconstitutional government action; section 24(2) provides for the exclusion of evidence obtained in violation of the Charter; and section 52(1) of the Constitution Act, 1982 provides that a law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect.

 

Similar or related provisions are found in the following international instruments binding on Canada: article 2(3) of the International Covenant on Civil and Political Rights; article 2(c) of the Convention on the Elimination of All Forms of Discrimination Against Women; and articles 2(1) and 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

 

See also the following regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article 25 of the American Convention on Human Rights and article 13 of the European Convention on Human Rights.

Department of Justice - Canada - Annotated Charter of Rights and Freedoms S 24

 

99. The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health. Health is an area of concurrent jurisdiction, which suggests that aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation. Based on the record, the interjurisdictional immunity claim cannot succeed.

Carter Preamble

100. The trial judge was entitled to revisit this Court’s decision in Rodriguez. Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Here, both conditions were met. The argument before the trial judge involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez. The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.

Carter Preamble

101. There is no jurisdictional shelter from compliance for the Government of British Columbia, as was the case in Carter, “concurrent jurisdiction” permits nuances in the administration of a matter related to the mentally ill, however, there is clear imperatives to subordinate the MHA to the charter.
102. Further, neither of the two situations noted in Carter for reconsidering a SCC’s decision are available to the Government of British Columbia in respect to Starson and capacity, a concept initiated by the Ontario Courts. Ontario has a designated forum to “test” capacity.

Deemed Consent – The necessity to meet the pressing and substantial objective of the MHA involuntary provisions.

 

103. Sections 241(b) and 14 of the Criminal Code are not saved by s. 1 of the Charter. While the limit is prescribed by law and the law has a pressing and substantial objective, the prohibition is not proportionate to the objective. An absolute prohibition on physician-assisted dying is rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, because prohibiting an activity that poses certain risks is a rational method of curtailing the risks. However, as the trial judge found, the evidence does not support the contention that a blanket prohibition is necessary in order to substantially meet the government’s objective. The trial judge made no palpable and overriding error in concluding, on the basis of evidence from scientists, medical practitioners, and others who are familiar with end-of-life decision-making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. It was also open to her to conclude that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally. The absolute prohibition is therefore not minimally impairing. Given this conclusion, it is not necessary to weigh the impacts of the law on protected rights against the beneficial effect of the law in terms of the greater public good.
104. The pressing and substantial objective of the involuntary provisions of the MHA is to protect and treat the “seriously mentally ill”. This paragraph speaks to a rational connection between measures taken and answering the substantial objective of a given law. Deemed consent is unnecessary to meet the general objectives of the MHA, this is evidenced by the fact other jurisdictions, such as Ontario, have found the means to meet the same objective and be subordinated to the Charter.
105. The measure of deemed consent, which revokes completely from the individual or a designated guardian, domain over mind and body – a measure that effectively makes an individual a complete ward of the state and at the discretion a director of an institution (effectively the discretion of a single medical professional) is draconian. It is a measure that would find parallel in an emergency measures act. Therefore, deemed consent is not proportionate to the objective. The ability to apprehend and treat the seriously mentally ill is critical, trampling the rights of 20,000 people annually is clearly an affront to anyone’s sense of justice.
106. One needs to also consider, that at the point of accusation of mental infirmity, the affected individuals rights are trampled. The dynamics of the processes and realities of hospital procedures impair access to due process that is consistent with fundamental law. The RPP, is in effect a “expert panel” and it holds absolute power over an individual; that is to say, legal process overwhelmingly favours expert testimony over a layperson’s testimony. The RPP, effects a circumstance of a lay person’s word against an expert doctor’s word, judged by an expert doctor and two others. Once ensnared in that process, the more an individual fights, the more “evidence” is created against them. In the case of the writer, the courts continually gave weight to the fact the writer had been condemned by several Review Panels and would never accept his assertions that the process was flawed from the point of accusation.
107. The rationale for the approach taken in British Columbia is that the mental health community needs to be able to intervein early in the disease process to prevent deterioration of a given patient. Other jurisdictions achieve effective results absent the regime of Deemed Consent.
108. The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object:  Bedford, at paras. 101 and 112-13.  Like the other principles of fundamental justice under s. 7, overbreadth is not concerned with competing social interests or ancillary benefits to the general population.  A law that is drawn broadly to target conduct that bears no relation to its purpose “in order to make enforcement more practical” may therefore be overbroad (see Bedford, at para. 113).  The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature.  The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammeled.

Carter Para 85

109. The willingness on the part of the courts to accept the compromise to due process inherent in the MHA, largely at the behest of interveners in the form of mental health “advocates”, falls afoul of the SCC imperative to hold elements of fundamental law paramount and above convenience in the application of the law.  
110. The two reports that prompted the writers second Notice of Civil Claim to the BCSC offer an account of thousands of British Columbias having their rights trampled. This affront to judicial process can be attributed to the compromise in due process permitted by the courts.

Committed to Change – Special Report #42 –

BC Ombudsperson

Operating in the Darkness – BC’s Mental Health Detention System –

Community Legal Assistance Society

 

 

Section 15 – Discrimination

 

 

111. The Supreme Court of Canada offers a two-part test to determine if there is discrimination.

 

Does the law create a distinction?

 

112. (i) Does the law create a distinction based on an enumerated or analogous ground?

                                                             a.      The enumerated ground is Mental Illness.

                                                            b.      The discussion offered herein in regard to deemed consent and the facts, argument and law offered in Tabs 9 and 14 above, brings the distinction into sharp resolution.

                                                             c.      People merely accused of having a mental illness and those who do have a mental illness clearly are made distinguishable by their association with the MHA. 

Distinctions Summary

113.                      Matrix of Impugned Laws

		Variance in Treatment or Impact
Statute	Section	Impact on Mentally Ill	General Public
Mental Health Act.	Section 31	The assessment of capacity is absent and hence, the presumption of capacity and other “consent rights” are revoked.	Other afflictions than mental health retain capacity assessment as a determent in giving, refusing or revoking consent.
	Section 25 (1)	The application of the MHA Section 22 results in the loss of liberty and the right to give, refuse or revoke consent to care. The “legal process” is optional at the discretion to the patient – that is to say there, is no mandatory legal process at the point of detention to review said detention. This is material because affected parties are regularly mis-directed from pursuing the RPP.	In society at large, schemes that revoke liberty have a mandatory review of detention – non - mentally ill people have court process to rely on.
	Section 22, 24, 25 and 31	Mentally ill person, or someone accused of being mentally finds themselves disempowered. The MHA structure flouts many fundamental law imperatives. The presumption of innocence (reverse onus imposed), proper discovery and evidentiary process, the presumption of competence, compliance with hearsay use (the use of unchallenged collateral information}, ability to cross examine accusatory comment are all challenged in varying degrees. Please see Tabs 9 & 14 for details.	People who come into contact with the law for other reasons, like criminality, are provided more robust protection and the full complement of process and fundamental law. The standard of review, beyond reasonable doubt in the case of criminal matters is far higher than the substandard standard of review found at RPP – which falls far short of balance of probabilities.
	Section 33 Application to court for discharge	Section 33 is peculiar to the MHA and Section 33’s statutory direction precludes “fair and impartial” review of the petitioner’s case. “Evidence” brought up from the tribunal process serves to corrupt the superior court as there in no requirement to meet the rules of evidence that are fundamental to the functioning of legal process.	The majority of circumstances with sanction as extreme as detention are dealt with in the courts where there is correct legal process.
Health Care (Consent) and Care Facility (Admission) Act	Section 2	This section has the effect of negating all obligations on the part of medical professionals to seek consent, to objective assessment of competency or to seek the direction of a guardian in the absence of competency on the part of the patient. Effectively, on accusation ONLY, the detained are  defacto wards of the state. A patient’s right to appoint a guardian is relinquished to a final authority in the form of the Director as defined by Section 8 of the MHA.	All other patients enjoy the protection afforded by Section 3, 5, 11, 16.
REPRESENTATION AGREEMENT ACT	Section 11	Negates the ability of a Mentally Ill person                                                                                                                                 to appoint a representative.

 

114. The right to equality in s. 15(1) does not guarantee equality in the abstract; it rests on a comparison with others. This requires us to examine whether the claimant group suffers pre-existing disadvantage, stereotyping, prejudice or vulnerability as compared with the selected comparison group, and as related to the subject-matter of the legislation.

 Department of Justice - Canada - Annotated Charter of Rights and Freedoms S 15

Tab 1, Tab 9

 

 

Is the distinction discriminatory? 

115. Is the distinction discrimination?
1. It is self-evident having reviewed the data herein, that the MHA and the complex of laws that are affected by it are distinctive and discriminatory.
2. Further, inherent in being associated with mental illness one is stereotyped – Stigma is a widely accepted reality in society. The stigma associated with an errant accusation of mental infirmity or mental infirmity generally lasts forever, the words of those affected fall hollow against the words of “experts”.
3. Specific to this case, the forced association with the mental health complex pushed the writer into the realm of being discriminated against by the structural stigma that is systemic and further, again, by the societal realities of being associated with mental infirmity. Part and parcel of this reality was the fact he was forced to subsistence. Impoverishment was effected by negligent government action and served to place the writer in yet a “greater state of discrimination”.
4. Having been associated with mental illness, illegally and unnecessarily, and the defendants having failed to offer any declarative relief, a basic aspect of full membership in Canadian society is challenged. Having the “the effect of perpetuating arbitrary disadvantage on the claimant” to this day.

 

Contextualizing this Case’s Discrimination Claim to the General Approach Found in Law v. Canada (Minister of Employment and Immigration)

 

Three Central Issues

116. (2) The approach adopted and regularly applied by this Court to the interpretation of s. 15(1)  focuses upon three central issues:  (A) whether a law imposes differential treatment between the claimant and others, in purpose or effect; (B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and  (C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.  The first issue is concerned with the question of whether the law causes differential treatment.  The second and third issues are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1) .

Law V. Canada Para 2

1. (A) whether a law imposes differential treatment between the claimant and others, in purpose or effect;

See Matrix of Impugned Laws and Tabs 9 and 14 of Case Overview.

2. (B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment;

As stated above – Mentally Illness is an enumerated ground.

 

3. (C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.
116. (3) Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
1. Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics.
2. Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
3. Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

Law V. Canada Para 3

118. (4) In general terms, the purpose of s. 15(1)  is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

Law V Canada Para 4

119. (5) The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1)  is essential in order to found a discrimination claim.  The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant.
120. Law V Canada Para 5
121. In para 4 of Law, the court states “In general terms, the purpose of s. 15(1)  is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.”

 

122.               It is clear the MHA violates an “essential human dignity”, Section 31 and the rubric of deemed consent precludes the assessment of capacity and effects the loss of liberty – an extreme loss of liberty, which includes relinquishing domain over mind and body – through rudimentary and arbitrary means – legal process that is demonstrably inferior to that expected in a matter related to maintenance or loss of liberty – legal process that is peculiar to the enumerated ground of mental or physical disability .

It is clear the MHA curtails freedom through the imposition of disadvantage. By way of example (there are many), Section 33, the statutory means by which to solicit court review of one’s circumstance is so cumbersome that two people in the MHA’s entire history have availed themselves of it – neither of the two had any success; this with a back drop of 20,000 detentions annually.

 

The structure and nature of the RPP imposes disadvantage at the table itself, and worse, imposes disadvantage relative other’s who are having their liberty arrested. There is a disproportionality between legal process extended those accused of mental infirmity and the severity of the imposition on their rights.

 Structural Arbitrariness – Overbroad – Vagueness

 

123. The prohibition on physician-assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily.

Carter Pre Amble

124. However, the prohibition catches people outside the class of protected persons. It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad ...

Carter Pre Amble

125. It is clear that the involuntary provisions of the MHA “catches people outside the class of protected people”, the writer was clearly other than “seriously mentally ill”, yet the MHA was applied with disastrous results.
126. Due to the MHA being ill-defined in relation to the degree of state response to the degree of the “accused” behaviour, people with mild behaviours may encounter treatment that lands anywhere along the same spectrum of response as people with severe or violent inclination. 
127. Under the Rubric of deemed consent and the MHA’s involuntary measures, the Writer, on accusation only, became a ward of the state. Further, given the direction of the legislation and the manner it is administered the “patient’s” detention, treatment, care, and direction effectively fall to a single individual (the treating physician).
128. The MHA’s review processes, and protection mechanisms perpetuate and strengthen the position of the accuser and weaken the position of the accused. Further, the nature of review processes and protection mechanisms render them unobjective.
129. Medical professionals fill out legal forms as instructed by government literature, the forms enter into the record and then into legal process that effects detention and the loss of domain over mind and body. The information placed in the forms are the product of subjective analysis of a medical professional absent any objective review. Further, and most disturbing, collateral information, hearsay, informs their conduct rather than personal observation – they “retain” hearsay, failing to allow the “accused” any cross-examination or even the ability to explain their actions.
130. As the involuntary measures of the MHA are interpreted and the manner in which supplemental literature directs medical professionals, there is no “narrowly defined class of offenders”, there is instead the financially irresponsible, those affected by environmental factors – depressed from the loss of a loved one perhaps and those afflicted with severe mental illness.
131. The overbreadth inquiry asks whether a law that takes away rights in a way that generally supports the object of the law, goes too far by denying the rights of some individuals in a way that bears no relation to the object:  Bedford, at paras. 101 and 112-13.  Like the other principles of fundamental justice under s. 7, overbreadth is not concerned with competing social interests or ancillary benefits to the general population.  A law that is drawn broadly to target conduct that bears no relation to its purpose “in order to make enforcement more practical” may therefore be overbroad (see Bedford, at para. 113).  The question is not whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life, liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature.  The focus is not on broad social impacts, but on the impact of the measure on the individuals whose life, liberty or security of the person is trammelled.

Carter 85

132. The argument for the present MHA’s involuntary provisions and the model it imposes is that it allows for the early intervention that permits more effective intervention and treatment. This is in effect a plea to make “enforcement more practical”, a plea taken in jurisprudence to date that has effected widespread abuse of Charter rights and negated adherence to fundamental law and fulsome due process.   
133. There is no clear direction in the MHA as to the gradation of illness (negative behaviour) and permissible degree of forceful intervention. This missing element is necessary in addition to the correction of deemed consent.
134. The literature provided medical professionals confounds the appropriate application of the MHA by broadening the purpose of involuntary provisions from the application of the MHA generally. By way of example in “BC’s Mental Health Act In Plain Language” it is stated in relation to Section 22 that, “The term “protection” covers more than just physical harm. It also relates to the social, family, work or financial life of the patient as well as physical condition. (This is paraphrased from the BC Supreme Court case of McCorkell v. Riverview Hospital [1993])” This implies that. if someone is behaving in a manner inconsistent with the perception of other’s sense as “responsible conduct”, the draconian measures in the act related to apprehension and detention are justifiably applied. If someone is seriously mentally ill, there is an immediate threat to their wellbeing or that of others – an event that can be measured by the common law doctrine of necessity in emergency situations. Specific to the writer’s case and as brought to light by CLA’s and Ombudsperson’s reports related to other cases, there was no imperative as would be indicated by the common law doctrine of necessity in emergency situations.
135. This reality generates a circumstance analogous to the circumstance described in Carter Para 86 -  Applying this approach, we conclude that the prohibition on assisted dying is overbroad.  The object of the law, as discussed, is to protect vulnerable persons from being induced to commit suicide at a moment of weakness.  Canada conceded at trial that the law catches people outside this class:  “It is recognised that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives” (trial reasons, at para. 1136).  The trial judge accepted that Ms. Taylor was such a person — competent, fully informed, and free from coercion or duress (para. 16).  It follows that the limitation on their rights is in at least some cases not connected to the objective of protecting vulnerable persons.  The blanket prohibition sweeps conduct into its ambit that is unrelated to the law’s objective.

 

136. We do not agree.  The situation is analogous to that in Bedford, where this Court concluded that the prohibition on living on the avails of prostitution in s. 212(1)(j) of the Criminal Code was overbroad.  The law in that case punished everyone who earned a living through a relationship with a prostitute, without distinguishing between those who would assist and protect them and those who would be at least potentially exploitive of them.  Canada there as here argued that the line between exploitative and non-exploitative relationships was blurry, and that, as a result, the provision had to be drawn broadly to capture its targets.  The Court concluded that that argument is more appropriately addressed under s. 1 (paras. 143-44).

Carter Para 88

137. The blurry element in the case of the MHA’s administration is between those who have a “serious mental illness” warranting forceful intervention and those who are seeking to ameliorate a mental illness that challenges their happiness but does not affect the capacity to interpret reality or relate to others.
138. Overbreadth in the case of the MHA, starts at the point of accusation. Effectively, anyone can make the accusation of mental infirmity against another. The mechanisms provided in the act to actuate state power in relation to an accusation of mental infirmity and involuntary measures in the MHA sends the accused directly to a MHA scheme dedicated to mentally ill people. The nature and extent of rights intrusion requires the full breadth and traditions associated with the complex of law related to protection against illegal and arbitrary detention – they are absent to anyone caught in the functionality of the MHA. In this way the MHA “catches people outside the class of protected persons”, the entire population is effectively at risk of wrongful detention.
139. The Diagnostic and Statistical Manual of Mental Disorders list some 900 diagnostic codes. While this manual is only part of the diagnostic process, this vast number of illnesses, the majority of which fail to reach the threshold as a “serious mental illness” can bring people into the ambit of the mental health complex. Given the involuntary measures are so easily implemented by filling out a form rather than through the courts, they often are inappropriately actuated. The CLA report Operating in the Darkness chronicles an instance where a person was detained to prevent them going home for Christmas as their treating physician deemed it to be stressful. This breath in type and severity of illness effects a circumstance where people are having their liberty arrested for purposes other than managing a serious mental illness.  

Limitations Review

 Overarching Proposition

140. Whereas, the Supreme Court of Canada has provided clear direction on the purpose of limitations acts in Novak and, the government of British Columbia adopted the SCC directive in the development of the present limitations act - it is clear when this case is contextualized to the direction given by the SSC that all the concerns the SCC has in regard to the application of limitations acts are met by the facts of the case – given this is the case, the limitations act was applied in contravention of its purpose and was therefore arbitrarily applied.
141. Further and/or alternatively the courts’ errored in by using the date of release from detention as the point of crystallization, as there were instances within the 2 year limitation period were IHA – MHSU actuated themselves in regard to the writer.
142. Further and/or alternatively, the damages sustained by the writer are the product of a contiguous series of acts and omissions that are damaging the writer to this day – as such all acts by the defendants, including the nature in which they have conducted themselves at court proceedings and by failing to withdraw the accusation of mental infirmity, constitute a continuing violation against the writer. 

 

Contextualising the Writer’s Case to the Purpose of Limitations Law

 

143. The complex of factors coming to bear on this case indicates that the rationale behind the Statute of Limitations would be satisfied if any of the courts had ruled as requested by the writer.  
144. The Supreme Court of Canada has repeatedly identified three rationales that underlie limitations legislation, which may be summarized as the certainty, evidentiary and diligence rationales:

White Paper on Limitations Reform – Page 5

 

Certainty – Unfair accounting for ancient obligations

 

145. It is clear from the facts that the claims against the defendants are current by the origin of the Defendants’ actions and the conduct by the defendants that caused injury to the Writer, injuries which are the product of a series of linear and contiguous events that started in 2000 and continue to this day by acts and omissions.

Case Overview Tabs 6 & 8

146. Discriminatory elements of the law are still affecting the Writer as evidenced by the Defendants’ recent activities in regard to the Writer; the Writer is being injured by an additional discriminatory element in the form of ongoing threat of incarceration absent due process, a fact that the defendants were informed of vigorously.

Discriminatory Treatment Case Overview Tab 1 & 9

Affidavit of Rae-Anne Samson TAB 2 EX A Tab 13 AB PAGE 244

147. The Defendants hold an elevated fiduciary duty to the Writer which they are presently negligent in attending to by failing to withdraw the accusation of mental infirmity.

Case Overview Tab 5

148. As indicated above, the Writer’s lives now, while “discharged”, with many rights of citizenship suppressed due to having once been associated with mental illness via an illegitimate and unnecessary accusation of mental illness.

 

Stale Evidence

 

149. The Writer has asked the Defendants to expunge all records, they have refused –all data, albeit faulty, is readily available.
150. All relevant personnel are readily available.
151. The Defendants have ardently retained “evidence” against the Writer’s will and permitted some 40 people over the course of two years to view it.

Case Overview Tab 14

152. There are requests for the Defendant’s to produce evidence outstanding.

 

Writers are expected to act diligently and not “sleep on their rights”

 

153. The Writer has worked in every manner possible on a continuing basis to regain his full rights of citizenship.
154. The literature provided by government to direct patients on how to respond to the actuation of the MHA against them suggests the Review Panel Process, Section 33 a BCSC review and the Ombudsman; the Writer attended to all processes including an Appeal to the BCCA which he had to end due to the lack of resources and the threat of costs against him from the defendants.
155. The Writer engaged the Minister of Health by submitting a request for a ministerial order to have records expunged and for a declaration that the accusation of infirmity was unwarranted – discourse took place between October 2013 and September 2014.
156. As recently as December 2014 the Writer informed the Attorney General of the situation.
157. Then again the writer engaged the BCSC, BCCA and the SCC and again the BCSC on the ground of new evidence.
158. It would be impossible to say the Writer has slept on his rights.

 

Summary of Cumulative Limitations Issues that Marginalise the BCSC & BCCA Ruling

 Postponement

 

159. Whereas, the courts have failed to recognize financial hardship as a substantive impediment to the pursuit of justice they effected an injustice.
160. There has been an injustice as a result of impoverishment, as impoverishment certainly obstructed the Writer from pursuing a claim in the second instance. Impoverishment is a source of hardship in of itself, court process is extremely taxing emotionally, threat of costs is a deterrent and the complete absence of funds imposes a nearly insurmountable obstacle to justice.

Ocean Pastures V Old Masset Economic Development Corporation, 2016 BCCA 12 a Para 24

 

Continuing Violations

 

161. The Writer asserts that the case warrants status as a continuing violation. The Writer asserts the continuing violation is ongoing for a number of reasons, the most prominent of which is that Dr. Buller, IHA MHSU and the government have failed to withdraw the accusation of mental infirmity when they themselves admit that the Writer no longer meets the requirements for involuntary committal.

Henry v. British Columbia, 2016 BCSC 1038 Paras 51 & 52

Commencement Dates

 

162. The Writer fails to understand why the courts deemed that the commencement date of the running of time is the day which IHA – MHSU discharged him. The Writer sought remedy from the Minster of Health, a process that ended September 2014. It is documented that IHA – MHSU attempted an emergency home visit in September of 2015. Filling out a form is an insignificant act in light of the fact IHA – MHSU can act at will absent any due process when one is discharged, as is evidenced by the fact they did is September 2015.

Conclusion

163. As illustrated in the contextualization of this to SCC concerns as they relate to the administration of limitations law, that is to say, that the case’s furtherance offends none of the preconditions set out by the SCC related to limitations law; as such, the case should proceed on its merits. As such, the steadfast adherence to the two-year limitations period is arbitrary.  

Res Judicata

Introduction

1.      On February 12, 2020, the writer filed a “new” notice of civil claim on the basis of new evidence – or, under the new evidence exception to Res Judicata.  BCSC File No. 058636 Thomson v. British Columbia (Interior Health)

2.      The new evidence relied on was Report 42, “Committed to Change” prepared by the BC Ombudsperson for the legislature, and, “Operating in the Dark”, prepared by the Community Legal Assistance Society.

Summary of the law related to Res Judicata

3.      The operation of the principle of res judicata can be barred by “special circumstances” or “special cases”, such that an action will not be struck out as unnecessary or an abuse of the court’s process. Where the earlier judgment does not appear to have fully covered the issues raised in the second action, the burden is on the party seeking dismissal of the action to establish that the first action is conclusive of issues raised in the second.

MacDonald w. Marriott (1984), 52 B,C.L.R. 346, 1984 CarsweIlBC 90 (S.C.)

4.      Speckling y. British Columbia (Labour Relations Board), 2005 CarsweII BC 2327. 2005 BCSC 1406 (S.C.) On an application to strike out a claim for abuse of process on the basis there is another action dealing with the same issue, the question is whether there are issues that have not been tried. The court has to ascertain if there are triable issues that may be outside the ambit of the earlier judgment or action in determining whether res judicata applies, all the evidence and the history of the matter should be considered. A decision at this summary stage does not fetter the trial judge in applying res judicata or abuse of process. The preconditions to a finding of abuse of process in the form of issue estoppel are: a) the same issues have been decided; b) the judicial determination which is said to create the estoppel was final; and C) the parties to the judicial decision or their privies were the same persons as the parties to proceeding in which estoppel was raised or their privies. In deciding whether to dismiss a case on the basis that it is an abuse of process it is appropriate for the court to use a two-step approach. The court must first determine if the applicant has established the preconditions and if the preconditions are met, the court should exercise its discretion to determine if abuse of process should be applied or if it would work an injustice in the circumstances of the case.

Chapman w, Canada (2003), 2003 Carswell BC 2992. 2003 BCCA 66i 1 R (‘I

Contemplation of Res Judicata in the Context of this Case

Key Facts

5.      First and foremost, the matrix of facts associated with this claim have never been tried, they have been relegated to the sidelines by undue attention to technicalities in the law, rather than promoted in the interests of justice and the public interest. The courts have had the discretionary leeway to rule in the interests of justice, they choose to do otherwise, the writer is unclear why.

6.       None of the issues raised in the second action were addressed by the court in the first action, save the issue of limitations.

7.      In the first action the court proceeded with ruling on limitations absent review facts and law that a limitation decision would be contingent on – by way of example – was the first apprehension and detention legal.

See above Limitations Review

Special Circumstances – The Law

8.      In this case, the pre-conditions for issue estoppel have been met: the same issue is raised in both proceedings, the decision of the ESA officer was final for the purposes of the Act since neither the employer nor the employee took advantage of the internal review procedure, and the parties are identical.  The Court must therefore decide whether to refuse to apply estoppel as a matter of discretion.  Here this Court is entitled to intervene because the lower courts committed an error of principle in failing to address the issue of the discretion.  The list of factors to be considered with respect to its exercise is open.  The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice, but not at the cost of real injustice in the particular case.  The factors relevant to this case include the wording of the statute from which the power to issue the administrative order derives, the purpose of the legislation, the availability of an appeal, the safeguards available to the parties in the administrative procedure, the expertise of the administrative decision maker, the circumstances giving rise to the prior administrative proceeding and, the most important factor, the potential injustice.  On considering the cumulative effect of the foregoing factors, the Court in its discretion should refuse to apply issue estoppel in this case.  The stubborn fact remains that the employee’s claim to commissions worth $300,000 has simply never been properly considered and adjudicated.

Danyluk v. Ainsworth Technologies Inc. Preamble

9.      Finality is thus a compelling consideration and judicial decisions should generally be conclusive of the issues decided unless and until reversed on appeal. However, estoppel is a doctrine of public policy that is designed to advance the interests of justice. Whereas, here, its application bars the courthouse door against the writer’s $300,000 claim because of an administrative decision taken in a manner which was manifestly improper and unfair (as found by the Court of Appeal itself), a reexamination of some basic principles is warranted.

Danyluk v. Ainsworth Technologies Inc., Para 19

10.     “ In Bugbusters, supra, Finch J.A. (now C.J.B.C.) observed, at para. 32:

                ‘It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application.  Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process.  The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice.  It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case” …

Danyluk v. Ainsworth Technologies Inc. Para 63

11.   Courts elsewhere in the Commonwealth apply similar principles.  In Arnold v. National Westminster Bank plc, [1991] 3 All E.R. 41, the House of Lords exercised its discretion against the application of issue estoppel arising out of an earlier arbitration, per Lord Keith of Kinkel, at p. 50:

One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result . . . .

 Danyluk v. Ainsworth Technologies Inc. Para 64

12.     As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice.  Rosenberg J.A. concluded that the writer had received neither notice of the respondent’s allegation nor an opportunity to respond.  He was thus confronted with the problem identified by Jackson J.A., dissenting, in Iron v. Saskatchewan (Minister of the Environment & Public Safety), [1993] 6 W.W.R. 1 (Sask. C.A.), at p. 21:

The doctrine of res judicata, being a means of doing justice between the parties in the context of the adversarial system, carries within its tenets the seeds of injustice, particularly in relation to issues of allowing parties to be heard.

Whatever the writer’s various procedural mistakes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated.

Danyluk v. Ainsworth Technologies Inc. Para 80 

13.   On considering the cumulative effect of the foregoing factors it is my view that the Court in its discretion should refuse to apply issue estoppel in this case.

Danyluk v. Ainsworth Technologies Inc. Para 81

14.   What has been clearly indicated in Danyluk is that justice is the overriding aim of legal process, the facts of the writer’s case clearly support the claim of an injustice being inflicted upon the writer.

15.   Also indicated, “exceptional circumstances”, can serve to permit an action to proceed even if all three elements of the doctrine of Res Judicata are met.

Varco Canada Limited v. Pason Systems Corp., 2011 FC 467 (CanLII) Para 20

Danyluk v. Ainsworth Technologies Inc. Generally

16.   The special circumstances exception applies where, in previous proceedings, there was fraud or other misconduct that raises natural justice issues.[14] In addition, the exception extends to decisive new evidence that could not have been discovered by the exercise of reasonable diligence in the first proceeding. It is understood that the burden of proof is on the person alleging that special circumstances exist.

Momperousse v. Canada (Citizenship and Immigration), 2011 CanLII 95560 (CA IRB) Para 18

Summary of Special Circumstances

17.   The writer has been chronically disadvantaged by process and the lack of funds.

18.   The courts indifference to the lack of funds is evidenced by the unwillingness to recognize the writer’s inability to finance process as an impediment to making a claim in the first place, by failing to issue an order for special costs when asked to do so and finally, by awarding cost against the writer.

19.   The court’s expectation of the writer as a SRL has been at par with their expectation of professionals – no quarter has been given by the courts that would enable a reasonable person to say the courts “have worked in the writer’s best interested”. That is to say, there is a set of facts that carry legal ramifications, the court is privy to the law, and yet failed to apply the law to the facts – the courts allowed the superior procedural skills of the defence and the defence’s legal knowledge determine the outcome of the case – rather than facts and law.

20.   The writer’s avenue to appeal was once blocked due to the lack of resources. Now the lack of resources and the threat of costs and the lack of funds are blocking an appeal of this most recent decision. The only avenue for appeal would have been to make application for leave to appeal to the BCCA.

21.   The writer has never been heard in relation to his claims against the defendants.

22.   The process to date has flouted natural law.

23.   Attempts to raise an objection to evidence that migrated from inferior process were thwarted.

24.   The writer perpetually and diligently pursued his rights and remedy and has done so for 20 years. The lobbying done to government has been to remedy his own circumstance and as ardently, to promote a public good.

25.   Constitutional issues, in the form of CR&F breaches and infringements came to the fore at the point the BCCA failed to subordinate itself to the CR&F and the paramountcy of the SCC.

26.   [12] The comments in the Ombudsperson’s Report and in “Operating in Darkness” may confirm what Mr. Thomson already knew when he filed his first claim. The trial judge reviewed the circumstances of persons detained under the MHA in his analysis of whether the limitation period should be postponed. That analysis touched on the concerns now proposed by Mr. Thomson as being new evidence. It serves no useful purpose to repeat what has already been said in the trial decision and as upheld on appeal.

Thomson v. British Columbia (Interior Health), 2020 BCSC 1591 Para 12

a.       The purpose of evidence is to substantiate facts and argument – of course, the evidence was related to my claim.

b.      To suggest that the Trial Judge’s review of the circumstances of people detained under the MHA could be anywhere near at par with the two reports, observations bore of debriefing 100’s of people and doing regressive analysis on institutional conduct is a misperception.

c.       Inherent in my pleadings and in subsequent applications was a plea to exercise discretion to circumvent technical elements obstructing access to justice, the court had the authority to move the process forward, it chose instead to effect injustice.

d.      The writer’s raising of issues had no effect on the courts, they’ve never once affirmed or even acknowledged the inferiority of the RPP or the related processes in the MHA that arrest people’s liberty on hearsay and rudimentary processes.

e.       The courts, by their actions, have failed to empathize with the devastating effects of an accusation of mental infirmity nor have they empathized with how taxing legal process is – it is demoralizing in the extreme for one to have no recompense or justice done.   

f.        The two reports substantiate the writer’s case – this evidence, if presented at trial, would have changed the result. It would be hard to imagine someone reading those reports failing to gain better insight into the plight of the writer and by extension, giving greater weight to his claims.

g.       Since the writers first exposure to the MHA 20 years ago to this day, likely in excess of ¼ million people have been detained under the MHA, two people have attempted a Section 33 challenge – nobody has succeeded. The suborn fact, in this case, is, the MHA ensnares people rather than offering viable process to protect their rights. The reports substantiate this fact by relaying the experience of thousands of people.

h.      From the first RPP to the last court proceeding, government misconduct has effected injustice, misconduct in the form of legal process that: flouts fundamental law, flouts common law traditions, flouts the CR&F, offers no apparent attempt to mitigate a gross asymmetry in capacity in favour of the defendants and then the court thwarted attempts by the writer to remedy substandard evidentiary process.

 Conclusion

General Comment

27.   It is the case that the law must be administered with as keen an eye toward the misdirection of the law as with the intended purpose of the law.

28.   The complex of laws protecting the citizenry from wrongful detention has been a longstanding fixture in our legal system – some 400 years in the refining.

29.   The MHA deviates from various legal imperatives in an attempt to facilitate ready detention of mentally ill individuals, these deviations have effected widespread abuse of peoples’ rights. In the writer’s case, the misdirection of the MHA has imposed irremediable harms.

30.   MHAs generally are widely abused the world over, they are abused to diminish political actors, to misdirect inheritance, to wrongfully garner control of assets etc... The presence of these types of abuses requires that there be as rigorous adherence to protection mechanisms afforded those accused of affronts to society. At the point of accusation, there should be no variance in state action related to the deprivation of liberty.

31.   In the complex of legal factors that have come to bear on the MHA and its administration, there exists a perilous circumstance. A circumstance, where mentally ill people are increasingly hesitant to seek help, where they are disempowered, and their rights are trampled – so the act is bad for the mentally ill. As concerning, is the courts permitting the abandoning of long-held traditions associated with apprehension and detention, in this way, the courts have put all British Columbians at risk. British Columbia’s government has an obligation to honour the Charter of Rights and Freedoms, it is failing to do so in the case of the MHA.

Comment Specific to the Writer’s Case

32.   The writer has made every effort to have a fair hearing, the courts have failed to permit access to any remedy, the writer asserts that an injustice has been done.

33.   The precedent left in the wake of this case is dreadful and serves to encourage further abuse of people who are caught in the system unfairly – this fact is clearly documented in both reports that prompted a request for a new trial.

34.   The writer has invested years of his time in seeking remedy, invested limited resources on photocopying and binding, incurred travel expenses and has had costs levied against him. The last attempt at justice was thwarted for technical reasons and costs levied against the writer. The writer has no resources to withstand the kind of legal process the defendants can deliver – the writer is simply out resourced.

35.   The defendants have been completely unresponsive to requests for remedy, evidently, absent any direction from the courts they feel no compunction to help rectify the damage they have done.