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.
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.
Abbreviations Often Used Here &
Through Out Documents
- MHA or BCMHA – British Columbia Mental Health Act.
- HCHFA - HEALTH CARE (CONSENT) AND
CARE FACILITY (ADMISSION) ACT.
- Limitations Act – BC Limitations
Act. – Often differentiated by “old” & “new”
- RIH – Royal Inland Hospital
- MHSU – Interior Health Authority
– Mental Health and Substance Use
- IHA – Interior Health Authority
- HMQ – “Government of British
Columbia” and “Her Majesty the Queen in Right of British Columbia”
- CR&F – Charter of Rights and
Freedoms
- RPP – MHA Review Panel Process
- SLR – Self Represented Litigant
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
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
- 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.
|
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:
Other
Considerations
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.
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 |
- All actions taken by the defendants occurred against the writer’s will and absent his consent.
- The writer was gainfully pursuing business opportunities at the time he was apprehended.
- 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
- Dr. Buller asserted the Writer required
medication and held compliance with medication as his primary reason for
the Writer’s detention.
- 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.
- The Writer constantly stated his
opposition to medication throughout his association with the defendants.
- 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.
- The
fact that the writer had capacity is supported by the following documents.
Tab 7 Page 34 Tab 14
Page 5 Para 18
- 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.
- 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
- “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)
- 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.
- Implicit in "treat" is
HELP. Also, a well-understood imperative for medical personnel is to do NO
HARM
- 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.
- 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.
- “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
- [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
- The day the Police attended the
writer’s home, he was working in his office.
- 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.
- 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
- 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.
- Further, similar offenses are
indicated to be occurring across the province, …
- "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
- 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.
- 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.
- 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.
- 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.
- 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
- 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
- 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.
- 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
- 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
- There was no emergency and
neither of the statutory requirements to determine a mental illness were
present.
Analysis – Section 7
Charter Breach
- Section 7 involves a two-step
analysis:
- 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?
- 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
- 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
- Restriction of movement –
Detention under MHA Section 37
- Surrender of domain over mind and
body – revocation of the right to refuse medical treatment – Deemed
Consent MHA Section 31 and several other acts.
- Existing elevated risk of
re-detention.
- Suppressed liberty due to the
release of private information.
- Forced consumption of an unnecessary pathogenic substance.
- Forced consumption of an
unnecessary pathogenic substance that was contraindicated to a pituitary tumor the Writer was diagnosed with.
- By the disclosure of private information resulting in stigmatization.
- By the reckless disregard on the
part of medical professionals for possible risks to the Writer caused by
their actions. (Initial Apprehension)
- The actions by defendants involved both a physical and psychological aspects.
- 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?
- 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.
- 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.
- “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
- 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.
- 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
- 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
- The Supreme Court of Canada has
developed a two-part test to use to contemplate the validity of a section
9 claim.
- 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
- The writer was detained under the
MHA Section 37 more or less consistently for 12 years against his will and
without consent.
- There were several instances when
the writer was detained in hospital as a punitive measure to enforce the
consumption of medications.
- 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.
- “Leave detention” also required
that the writer stay in Kamloops. Requests for treatment in other centers
were denied.
Tab
5 Page 6
- “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.
- 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.
- 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.
- 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.
- … 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
Domain over One’s Mind and Body
- 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
- 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.
- 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
- 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
- “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.
- 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
- 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
- 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
- “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
- 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
- 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
- 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
- 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
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- The Supreme Court of Canada offers a two-part test to determine
if there is discrimination.
Does the law create a
distinction?
- (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.
|
|
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. |
|
- 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?
- Is the distinction discrimination?
- 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.
- 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”.
- 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”.
- 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.
- (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
- (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.
- (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.
- (C) whether the law in question has a
purpose or effect that is discriminatory within the meaning of the
equality guarantee.
- (3) Accordingly, a court that is called
upon to determine a discrimination claim under s. 15(1) should make the
following three broad inquiries:
- 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.
- Is the claimant subject to differential
treatment based on one or more enumerated and analogous grounds?
- 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
- (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
- (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.
- Law V Canada
Para 5
- 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.
- 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
- 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
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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.
- The Writer has asked the
Defendants to expunge all records, they have refused –all data, albeit
faulty, is readily available.
- All relevant personnel are
readily available.
- 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
- There are requests for the
Defendant’s to produce evidence outstanding.
Writers are
expected to act diligently and not “sleep on their rights”
- The Writer has worked in every
manner possible on a continuing basis to regain his full rights of
citizenship.
- 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.
- 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.
- As recently as December 2014 the Writer
informed the Attorney General of the situation.
- Then again the writer engaged the
BCSC, BCCA and the SCC and again the BCSC on the ground of new evidence.
- It would be impossible to say the
Writer has slept on his rights.
Summary of Cumulative
Limitations Issues that Marginalise the BCSC & BCCA Ruling
- Whereas, the courts have failed
to recognize financial hardship as a substantive impediment to the pursuit
of justice they effected an injustice.
- 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
- 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
- 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.
- 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.
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
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.
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.
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