The Supreme Court of Canada is allowing a constitutional challenge to go ahead against a law authorizing the forcible treatment of involuntary psychiatric patients in British Columbia.
The 9-0 ruling on Thursday follows a six-year battle by an advocacy group asserting a right to bring the challenge on behalf of psychiatric patients, without the involvement of individuals directly affected by the law.
The Supreme Court ruled that directly affected litigants aren’t strictly necessary in every constitutional challenge, and that groups with a history of expertise and involvement such as the Council of Canadians With Disabilities, which challenged the B.C. law, may deserve to be heard.
The principle has broad importance, not just for psychiatric patients in B.C., but for other vulnerable or marginalized populations attempting to contest government actions in court. That importance was reflected by the participation of more than 20 intervenors, representing groups such as refugees, women, religious and racial minorities, and prisoners, plus three provinces and the federal government.
“Some courts, including the trial court in our case, have been rigid in their view that challenges must be brought by affected individuals, despite whatever barriers they may face and no matter how marginalized or disadvantaged they may be,” said Michael Feder, a lawyer for the Council of Canadians With Disabilities (CCD).
He also underlined the importance of the ruling for psychiatric patients.
“B.C. is the only place in Canada where everyone with involuntary status is ‘deemed’ to consent to all forms of psychiatric treatment, without safeguards like an assessment of their capacity to make treatment decisions or the ability to use a supportive or substitute decision maker, like a family member. This disturbing approach to forced treatment reinforces harmful stereotypes by equating having mental health problems with being incapable of participating in one’s own recovery.”
The legal issue at the heart of B.C. v. the CCD is who qualifies for “public-interest standing” – that is, who may bring a challenge in court to a law affecting large numbers of people.
Initially, the CCD and two psychiatric patients challenged the law. But when the patients withdrew, the B.C. government asked a court to dismiss the challenge. Chief Justice Christopher Hinkson of the B.C. Supreme Court did so, saying that without the individuals involved, the case lacked the kind of factual context that courts need to review constitutional issues. The B.C. Court of Appeal disagreed, stressing the importance of access to justice, and B.C. appealed the ruling to the Supreme Court of Canada.
The court said that while constitutional challenges can’t be decided in a factual vacuum, and while access to justice is not the only consideration, it is not always necessary for directly affected litigants to be involved in the challenge.
For one thing, there are barriers to the involvement of psychiatric patients in long, arduous litigation. “Some may fear reprisals from health care providers who, under the legislation at issue, control their psychiatric treatment,” Chief Justice Richard Wagner wrote for the court. “Or they may hesitate to expose themselves to the unfortunate stigma that can accompany public disclosure of their private health information.”
For another, some cases, such as this one, do not turn on individual facts; much of the forcible-treatment case could be argued on the basis that the law is unconstitutional on its face, the court said.
Many of the biggest constitutional challenges have involved directly affected litigants. In 2015, for instance, a successful challenge to the federal ban on medical assistance in dying involved an advocacy group, a doctor and two individuals who wished assistance in dying.
Elin Sigurdson, a lawyer representing the B.C. Civil Liberties Association, which intervened in the CCD case, said that laws on public-interest standing were restrictive during the 1980s and 90s, but in 2012, in a case involving a sex-workers organization, the Supreme Court made it easier for organizations to stand on their own. Ironically, she said, it took six years for the CCD to “gain access to a rule that is about ensuring access to the courts.” The Supreme Court ordered B.C. to pay the CCD’s costs in fighting for its right to be heard.
Cheryl Milne, a lawyer for an intervenor, the University of Toronto’s David Asper Centre for Constitutional Rights, said the ruling reaffirms “a progressive and flexible approach to public interest litigation that should assist vulnerable people who might otherwise have difficulty bringing forward claims that their rights have been abused.”
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