Law, Legislation and Civil Liberty – BC Mental Health Act. (BCMHA) – Discriminatory

If one contemplates the application of this act in the context of Section 8 (1) b of the human rights code,

a.       Unlawful to discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.

Discrimination begins at the point of accusation and continues with the circumvention of due process and procedure.  In Canada, as per fundamental law, the Charter of Rights and Freedoms and the full breadth of Canadian Jurisprudence’s history and practice, one critical fundamental lies at the core of our law, we exist in a state of liberty and for that state liberty to be interrupted it must be proven justified in front of a justice and / or jury. The BC Mental Health Act denies this right, it permits an opinion of a layperson to have a person incarcerated, it then requires a doctor’s opinion to have you detained for 24 hours and another doctor’s opinion to have you detained indefinitely. If you object, a retrograde process in the form of a Review Panel is provided, a lawyer, a doctor, and another member preside over your future – no judge or jury like criminals get. So at the mere accusation of mental infirmity by a layperson or a police officer, absent imminent threat to self or others, you can be locked up and forced to treatment for an extended period of time; the subject in the subject case was detained under section 37 Leave or Extended Leave for 12 years.

Excerpt Section 22 BCMHA

(c) a statement, separate from that under paragraph (a), by the physician that the physician is of the opinion that the person to be admitted, or the patient admitted, under subsection (1)

(i)  requires treatment in or through a designated facility,

(ii)  requires care, supervision and control in or through a designated facility to prevent the person's or patient's substantial mental or physical deterioration or for the protection of the person or patient or the protection of others, and

(iii)  cannot suitably be admitted as a voluntary patient.

Absent a single act of violence, absent any threat of suicide, absent any objective evidence, absent any proof of a physical pathogen; the BCMMA can be activated and you can be incarcerated. People accused of mental infirmity are at the whim of medical opinion – see Section ii above – there is no requirement for imminent harm to self or others, no requirement of proof. “Patient’s mental or physical deterioration” has had the act applied if someone is appearing to be “irrationally” managing their money. If you choose to stop working and to sit on the side of a hill and meditate, and your spouse or other layperson deems this an irrational act, they could have the BCMHA actuated.

Discriminatory Elements of the Act.

1.       No judicial review before incarceration.

2.       A Review Panel process that makes rudimentary the incarceration and detention of people and flouts the traditions of Canadian jurisprudence.

3.      Reduced standard of review – the balance of probabilities vs beyond reasonable doubt (we extend criminals better protection), if complaints ever make it to court by people accused of mental illness.

4.       Reduced evidentiary standards:

a.       The “evidence” presented has no obligation to be based in fact.

b.      The “evidence” presented is written by the doctors and accepted by Review Panel as “evidence”, this is like the Crown Attorney writing “guilty” on a sheet of paper and the Judge accepting it.

c.       “Evidence” is collected from third parties, interpreted, and then entered into a judicial process – absent opportunity for review by the accused or incarcerated.

d.      There are no discovery obligations in the Review Panel process, the accused can be denied access to information that contributes to their incarceration.
e.   If the Review Panel Process is challenged in the Courts under Section 33, evidence that accumulated in a process that is substandard to Supreme Court proceedings is admissible and is the only Statutory avenue available to access the BCSC.

5.    The accused can be denied access to process altogether upon the recommendation of the accusing doctor.

6.    There is no more severe form of sanction than arresting a person’s state liberty in Canadian law, save the requirement to relinquish control over mind and body, people merely accused of Mental Illness are subject to both – WITH NO JUDICIAL REVIEW – accused criminals are only subject to incarceration and they have better treatment.    

    

This is intended to bring awareness to the inequity of the act, it is discriminatory make no mistake about it – grossly so. In an attempt to “have better ability to help”, a group of people have lobbied for this act, a group of people radicalized by bad experience – they have succeeded in convincing the government and in doing so have grossly damaged legal processes and permitted discrimination. As you read more of my posts on the subject of the BCMHA, it will come to light that what is even worse than the ill being discriminated against – which is bad enough – is the fact that the entire population is at risk of its abuse. Abuse does happen – it has and will again.  

PLEASE CLICK HERE TO REVIEW - VAGUE ASPECTS OF THE BCMHA

Law, Legislation and Civil Liberty – BAD LAW - DANGEROUS LAW - UNJUST PROCESS

THERE IS A LINK TO SPECIFIC CHALLENGES WITH THE BCMHA AT BOTTOM OF PAGE.
____________________________________________________________________
It is the case that in the practice of law, that the minutia tends to take us away from justice, the big picture. In Canada, we have a circumstance in play that has the erosion of fundamental law occurring at an alarming rate. If you have a deep belief in common law and its fundamental tenets that are the foundation of our system, then you will share my concern with respect to this disturbing trend, a trend that has expediency trump due process. There are a number of examples of this trend throughout the system, no more glaring however than the BC Mental Health Act. An act that has drifted away from fundamental law, and that was drafted and is now administered is a manner that flouts common law traditions and the charter. We need to be very wary of the “tribunalisation” of legal process, as it has been applied here a number of ills have emerged; not the least of which is the stagnation of statute absent exposure to court process and alterations due to its administration in the face of precedent effect. We need to ensure that people have the benefit of the “full due process” that courts provide. We need to protect evidentiary process. We need to ensure that the standard of review is commensurate with state sanction. We need clarity in law. We need the absence of arbitrariness. As the BC Mental health act is written and administered there is a litany of breaches and infringements on expected process, fundamental law and the charter. The BC Mental Health Act, as it is administered, counts evidence in a manner that would be analogous to Crown Counsel writing “guilty” on a piece of paper, handing to the judge, and having it accepted. I have prepared a summary of a case of an individual severally affected by the mis-application of the BC Mental Health Act, please take the time to review this case by clicking on the link below. I am sure you will find this act and its administration as concerning as I do.  
___________________________________________________________________

There has never been a better legal system than “common law”, it is fair, it is responsive and through the use of precedent a single “law” can evolve at a  measured pace. One can attribute common law’s fairness in large measure, I believe, to the fact that the people who devised the process knew they would never be subject to it. As common law is now applied, as directed by our charter, “universally”; we have certain protections and obligations. It is my assertion that the hard-earned protections afforded us, years of tradition that has built the foundation of our system – or the bank of fundamentals that make our common law jurisdiction’s residents’ safe from intrusion by others or government – are all being seriously challenged by a complex of factors; the apathy of the people to long accustom to legal fundamentals of freedom being in place, legislation greatly influenced by “special interests” that are in effect radicalized to the point of lobbing to weaken the fundamentals of freedom, technology in the hands of government and other actors that circumvent traditional legal and societal protocols. There has been an insidious slide backwards to state authority gaining greater and greater influence over the full continuum of human existence, we are all complicit in this, we need to be more diligent in arresting further state intrusion into the citizenry's private lives by ensuring the fundamentals of freedom; presumption of innocence, habitus corpus, protection against arbitrariness, overreaching legislation, charter protections, property rights etc. are upheld – the law must be administered off the foundation of first principles, as opposed to contemporary concerns and nouveau tangents.

A most glaring example of this is the British Columbia Mental Health Act. (BCMHA), where lobbing has effected a circumstance that has the interests of a few, very few, overriding the fundamental rights of the entire population. Through the experiences of a friend, I have witnessed a travesty of justice – where the most draconian measures available in Canadian society, incarceration was utilized inappropriately and on the judgment of what amounts to a single individual. This is a terrifying piece of legislation because it attacks the fundamental rights and freedoms of the entire population, and worse, discriminates against people at the mere accusation of mental infirmity (oft times accusations by laypeople) and then discriminates by the mechanics of the systems as it disempowers the accused to a greater extent the more they object. These types of legislations the world over have been the favoured tool of oppressors, as they both incarcerate and discredit in one fell swoop; Soviet Russia, China, jurisdictions in the United States and Europe have seen abuse of these types of statues, we need now to work to see that in Canada, that statutes of this nature are brought into accord with fundamental justice and the Charter of Rights and Freedoms.

In Canada, we are in a trend of lessening liberty as opposed to increasing liberty, I intend, with the BCMHA as a lens, to enlighten those who are interested in how our liberty is being eroded, how institutional inertia is taking the law further away from base principles and how easy it is for legislation to be misapplied and power abused. The BCMHA was conceived and promoted by people injured by what can be a ravaging experience, they have my empathy, however; in the creation and administration of the law a sober mind is required, and as much attention needs to be given to a law’s misuse as it’s intended use. The only way to ensure the law is properly directed is to build it on base principles which have at their core the protection of the individual against misapplied state power and or the actions of others.  It is a most grievous circumstance, that in Canada, we have legislation in place that both endangers the general populous, and both arrests the rights of the ill and discriminates against the ill.

PLEASE CLICK HERE - TO REVIEW DISCRIMINATORY ELEMENTS OF THE BCMHA

    

Security Challenges 3

PLEASE NOTE: I have had security challenges, subtle changes have been made to my work on occasion – I am working to rectify the situation. Should you witness anything untoward or require clarification do contact me. THANK YOU.

Supply Management - Ed Fast - Trade Talks

Neil E. Thomson

nthomson2@yahoo.ca

October 17, 2013

Honourable Ed Fast

Minister of International Trade

Ottawa Office

Room 105, East Block
Ottawa, ON K1A 0A6
Phone: (613) 995-0183
Fax: (613) 996-9795
E-mail: ed.fast@parl.gc.ca

Dear Sir,

In a recent article in the Nation Post your representatives indicated an undying support for Supply Management as it is now configured.

The EU trade deal is only part of the world trade picture, as I know you’re aware; one of the biggest inhibiting factors in the Doha Round of WTO talks has been supply management and agriculturally related trade. The EU agricultural operating environment is similar to ours, a reality which has permitted you to “keep your promise” regarding the Supply Managed sector, other important regions are less hospitable.

The reality is that the present configuration of the Supply Managed sector effects all manner of ills on the participating industries and Canadian consumers. Your extended inhabitation in Abbottsford undoubtedly has had you in contact with the BC Milk Marketing Board who have their office in Abbottsford. The supply management regime, especially as it pertains to milk, requires restructuring; as the system’s long tenure has allowed a decadence to settle in and the world trading system will demand change.

Preservation of the system as it now stands is errant, transition out of supply management as it is now configured, with fair remuneration to farmers for lost “assets” is the path to contemplate now.  We are seeking free trade with the world, clinging to outmoded market practices to appease groups who would better absent said outmoded practices is folly. Your government has run on the “free market ticket”, how does that pair up with the ardent support of supply management communicated by your office.    

Sincerely,

Neil E. Thomson

Please see Blog for a more fulsome discussion regarding Supply Management.

http://nthomson2.blogspot.ca/2013/07/bc-milk-supply-management-system-sms.html

Medical Ethics – Challenge with Consent

Medical Ethics – Challenge with Consent

All segments of the medical service space require consent; there are statutes that arrest one’s state of “competency” and permit treatment without consent – some draconian - to be discussed later. There are even provisions for people to be treated absent their knowledge and this is determined as appropriate, in some cases by a committee. Of course, as one who treasures choice, consent in the medical service space, or any space, is paramount – consent is the substrate of choice. For those of us lucky enough to have a “significant other” personal relations are oft times referred to as “love making”, the only component that separates “love making” from rape is consent. I offer this metaphor to sharpen the reader’s attention to the gravity of this discourse; this is much more than theoretical chit chat, this discussion brings resolution to the fact that “consent” & personal choice are one in the same, and when, by force, or deception, choice is removed people are, as the rape victim, disempowered and violated.

The only effective means to garner consent is to ask “is it ok to do this” and then to ensure that if the person answers in the affirmative they understand what they are agreeing to. There is no such thing as implied consent, people in the medical profession use the term “implied consent”. “Implied Consent” is loosely determined by deducting an action or verbiage as parallel “enough” that if the subject could provide consent they would. The Challenge with “Implied Consent” is that practitioners unable to garner consent think they need it, so they “over interpret” information, or they enter the process with confirmation bias as their companion, or the assumption of consent fails to adjust for a variance in risk and treatment – he takes Aspirin so Oxycontin is okay. The other challenge with implied consent is that inherent in implied consent is the absent of explicit discourse, so the subject is absent any knowledge; this grossly under rates the capacity of the lay person to manage or understand, and denotes a professional arrogance on the part of the practitioner. Implied consent can have a person exposed to a drug absent knowledge of what they are being exposed to, this practice is fraught with risk for any number of reasons – common sense will fill in the blanks.

Finally, there is the removal of the requirement to get consent – by way of example – the BC Mental Health Act. grants Doctors the power to deem someone mentally ill and incarcerate them. There are a host of ills with this specific act and discourse is outside the scope of this document, however, it suffice to say that when government action interrupts a person’s state of liberty, that judicial review should be commensurate with the “sentence” administered – now we have lay people deciding what defines “competency”, this reality is more than unethical, it flouts years of Canadian Jurisprudence.   

Consent is also a moving target; consent today can change to consent tomorrow or vise versa. So consent given ten years ago is no longer valid, as time passes circumstance can change – people learn more, people become more evolved. The critical element in consent is full disclosure of actions taken and ongoing assurance that the subject is fully informed and has understanding.

The base point of contemplation in matters related to consent is – make it explicit.       

Law, Legislation and Liberty - Policy Creation – Correct Perspective - Government as Educator not Regulator

Law, Legislation and Liberty - Policy Creation – Correct Perspective - Government as Educator not Regulator

When you read any piece of legislation, legislation being the practical expression of policy, the language is always directive by authority. The fundamental view in structuring law has government as the authority and the population to obey or suffer the consequences. This is an errant perspective as it assumes us subordinate to government; a) when the opposite is supposed to be true b) when our charter extends us autonomy as a basic human right. If you believe as I do, that we exist as sovereign beings and liberty is a right of our humanity as opposed to something the state grants us, this authoritarian stance of the government is very offensive. The government should be issuing directions as opposed to edicts.

Government has an important role as a mediator, or, through the law, to provide the effective interaction of the citizenry – the government has no meaningful role in personal choice, especially when personal choices made are benign to the rest of the populous. Government has an important role as a protector from outside threats; it has no role in protecting us from ourselves - saves to the provision of non-biased & reliable information for us to choose with. When thinking about the policy the thrust needs to be, how do we facilitate human action as it originates from the individual, as opposed to how do we control people; Canadians are a collection of individuals as opposed to a group of people, so in providing choice to a well-informed populous, we move decision making closer to the point of action and inherent in exercising choice is ownership, and in ownership is responsibility; a more responsible and actuated population emerges.   

Rather than having a drug policy that enforces a moral code against the altered state, have a drug policy that informs the public of the risks and benefits of all substance use. In the early 1970s, 70% of the adult population smoked, now about 15% do. Cigarettes are still legal, however, by informing the public, the government effected a cultural shift that moved smoking from an action of status to one of a fool. When people see the skull and crossbones on a container they know the contents are poison – rationale people avoid eating the contents. The Canadian landscape has literally millions of dangers, the government is unable to put handrails on every cliff in Canada, and it relies on parents to teach their children to avoid walking off cliffs. People have the capacity to manage their own lives, and government policy should extend them as full a breath of action as possible. 

With law – less is more. In Canada we are over-governed, increasingly our personal lives are governed. This is the case because the government to often is trying to manage personal matters, the government has trouble with managing slow-moving, large and sturdy infrastructure, so it should stay away from micro-managing Canadian’s personal lives by regulating every possible aspect of life. Since my parent's day, there has been an insidious escalation into our private lives, we have become in many ways a totalitarian state – if one measures the breadth of government involvement in our personal lives juxtaposed against any other point in history.            

Law, Legislation and Liberty Policy Creation – Correct Perspective - Morality

Law, Legislation and Liberty Policy Creation – Correct Perspective - Morality

If you begin the process of making policy with a skewed perspective, the policy will be skewed. If you begin policy making from the perspective of what should be, rather than what is, you will get a skewed policy. Religious morality is founded on the assertions of people in the context of their metaphysical contemplations rather than fact, whether they believe in God or Christ, Mahmoud, polytheist or some variation on a given theme. The challenge with the irrationality of religion being mixed with policy is that people are busy effecting control over the populous rather than managing societal outcomes.  Religious morality came into being to manage human interface in a beneficial manner, morality is in no way created to stop the behaviour, but rather to effect societal outcomes – as a person subjecting themselves to theocratic rigour one has the right to ignore outcome, one involved in the governance process must hold outcome as paramount.    

To assert religious belief as irrational is accurate, in that, the notion of faith absent tangible proof is irrational as a result of the assertion being unsubstantiated. This is, in no way an affirmation of atheism, but rather, a criticism of the misapplication of religious morality in governance which results in outcomes that contradict the basic premises of the Christian faith (in the Canadian context) and conflict with the enlightenment / secular ideals as they are want to find expression in a free and democratic society. There needs to be a detachment from religious belief in the policy creation process to ensure rational policy that meets the requirements of society at large.

As an aside, a comment on the Christian moral perspective. Metaphysical contemplation has inherent the reality that it must start where human knowledge ends, the Christian moral perspective evolves from the views and general understanding of people who, in many cases, lived in excess of 2000 thousand years ago. The assumption that order is preexisting, as opposed to realizing the universe is in a state of flux, assumes that all creatures and things were the product of a single Genesis and are fixed when the world indicates differently. Assuming a fixed point of origin provides a reference point, but creates a distortion in perception, as the “fixed point of origin” occurred in a state of flux. The beginning and the end are unknown and unknowable, and are the place of metaphysical contemplation; assumptions that distort this reality serve to confound thought, distort progress and generally limit humanity. The ardent adherence to orthodoxy ofttimes generates an immoral circumstance; one would think that in our modern society “orthodoxy” as it relates to any religion & government policy would have folded, it does linger, however, so we have to work to ensure that the negative outcomes generated by orthodoxy get remedied and the positive preserved.

Moral Relativism is a term normally murmured as a pejorative; I, on the other hand, see moral relativism as a philosophy that permits “traditional believes” to provide direction while allowing people’s conduct to evolve with advancements in knowledge and technology. When one permits the “reexamination” of moral tenets, an examination undertaken with the desired outcomes of the “founders” of a given m oral complex in mind – one can begin to expand the human endeavour and achieve the worthwhile “societal” outcomes we all desire. One is also permitted to examine an issue absent prejudice, to really examine an issue from a place of reason. Many of (y)our most vexing challenges – even in modern Canada – paths to a solution are blocked by the inappropriate adherence to “outmoded” moral perspectives. Rather than taking a public health perspective, a populist perspective or just the most efficient solution perspective, we are locked in a repeat of bad policy the attempts to adhere to a single moral perspective with outcomes that marginalize and effect grossly immoral outcomes on our most vulnerable.

If it is your goal, as it is mine, to have whole and well-adjusted family units – which is the underlying desire of much of the religion-based moral complex, then build a policy that addresses that goal – rather than directing resources to block “vice” for example. Prostitution will occur, it is contrary to the aforementioned goal, however, by directing resources to stop it you starve the governance energy to support a family or what some may term as the more “wholesome” aspects of life. It is necessary at times to “ignore” behaviour to address the root causes of the behaviour you're want to correct or redirect. The public health perspective on prostitution brings people in the “trade” into the ambit of health professionals, people who can offer a way to a different life should a different life be desired. In the process of “fighting” vice, we marginalize and alienate people drawn to the “trade”, oft times by unfortunate circumstances. There is a paradox that exists in developing policy – the ardent adherence to moral orthodoxy often leads to a damaging outcome. It is the ardent adherence to the institutionalized Christian moral perspective with respect to the altered state that has us “warring” against our own people in the realm of drug policy; even when it was our very drug policy that has imposed illness on a given individual.  

The correct basis in thought for good policy has firstly, the desire to find the best overall outcome founded on science and fact, and secondly, the willingness to expose policy execution to honest, rigorous post-application assessment. Only by establishing indicators, benchmarks and milestones based on a clear set of metrics can we ensure the policy is doing what it is intended to do.          

Morality is far too idiosyncratic for government to manage; morality belongs squarely in civil society. Any given person’s moral perspective evolves, most often absent conscious thought, from their family and their family’s religious practice or the absence of religious practice.  So you may disagree with a person’s actions, fear for their sole – so speak to that person; you may enlighten them to another perspective. I should emphasize that this commentary is in no way an attack on any given religious perspective. The challenge arises when institutional credibility rides on dogma challenged by substantiated fact and government authority is appropriated to further dogma. To paraphrase Bill Clinton, all we need for a reason to prevail is to accept another’s truth to be as valid as our own. It is critical, however, that government policy generates neutrality in the public square. A child should be the able to start down any street with a given moral perspective and level of awareness and emerge out the other end unchanged, save a parent’s chosen direction.