This article was written by Andrew Robb, and originally appeared in the edition of DABC’s Transition magazine, Dying for Health Care: Navigating An Ableist System (Fall/Winter 2022). Read the issue here.

If you’re interested in contributing to Transition as an individual or an organization, please email transition@disabilityalliancebc.org. 

On June 23, 2022, the Supreme Court of Canada released a decision finding that the Council of Canadians with Disabilities (CCD) has public interest standing to challenge parts of BC’s Mental Health Act (MHA) because it violates Canada’s Charter of Rights and Freedoms.

The Attorney General of BC had argued that CCD was not entitled to public interest standing, unless there was an individual co-plaintiff who had been directly affected by the MHA.

This decision is part of CCD’s ongoing challenge to laws regarding involuntary psychiatric treatment. CCD says the MHA violates the Charter and the courts should force the government to change it.

BC is the only place in Canada where patients with involuntary status, including people detained in psychiatric facilities, are “deemed” to consent to all forms of psychiatric treatment, without safeguards.

For example, under the MHA, a patient can be forcibly administered psychotropic medications and electroconvulsive therapy, without consent from the patient or their legal guardians or family members.

The issue before the Supreme Court of Canada was a procedural question about whether CCD would be allowed to bring the case forward at all, without an individual co-plaintiff. The Supreme Court of Canada did not consider whether the MHA violates the Charter. That issue will now be decided by the BC Supreme Court.

The Supreme Court of Canada’s decision is very important to CCD and people in BC who are detained under the MHA. It means CCD’s legal challenge to the MHA can continue, but the legal process takes a long time; it may be years before the courts make a final decision about whether the MHA must be changed. The Supreme Court of Canada’s decision will also set a precedent that will be helpful to other groups who want to challenge discriminatory and other unconstitutional laws in court.

CCD is a national organization of people with disabilities working for an accessible and inclusive Canada. Disability Alliance BC is a member organization.

DABC staff assisted the CCD committee that works with CCD’s pro bono lawyers. We are proud to play a role in this important case.

Andrew Robb is staff lawyer with DABC’s Disability Law Clinic.