Significant Charter Win for the Council of Canadians with Disabilities

McCarthy Tétrault represented the Council of Canadians with Disabilities (“CCD”) in a successful Charter challenge to the involuntary treatment regime under British Columbia’s Mental Health Act. The Supreme Court of British Columbia held that the regime established by the Mental Health Act was unconstitutional—a significant victory for persons living with mental disabilities in British Columbia and confirmation of the Charter’s strong protection for healthcare decision-making autonomy.

Under the Mental Health Act and related legislation, individuals involuntarily detained for treatment lack the health care consent rights enjoyed by all other British Columbians. Involuntary patients do not have the right to give, refuse, or revoke consent to psychiatric treatment—even if they are capable of making treatment decisions while detained (as some are). Further, involuntary patients cannot appoint a representative or rely on a family member or friend to serve as a substitute decision-maker: the power to administer treatment rests with the director of the facility detaining the person. No other province or territory has a regime for involuntary treatment that limits health care consent rights as much as the Mental Health Act and related legislation.

CCD challenged British Columbia’s involuntary treatment regime under s. 7 (the right to life, liberty, and security of the person) and s. 15 (the right to equality) of the Charter. The trial lasted 34 days and involved dozens of witnesses, including experts from around the world, health care practitioners, and patients and their family members. 

The Supreme Court of British Columbia accepted virtually all of CCD’s submissions:

1. The Mental Health Act does not authorize what BC’s Attorney General says it does. Even aside from the constitutional defects in the legislation, treatment is occurring unlawfully because the government overstates the authority the legislation provides.
2. The impugned provisions violate s. 7 of the Charter: BC’s regime eliminates the health care consent rights of involuntary patients who do not want to consent to treatment. That deprives involuntary patients of their rights to life, liberty, and security of the person in a manner contrary to the principles of fundamental justice. The regime is arbitrary, overbroad, and grossly disproportionate. Plus it is procedurally unfair.
3. The impugned provisions violate s. 15 of the Charter: BC’s regime creates a distinction based on mental disability by denying all involuntary patients the benefits all other patients have. That perpetuates the stereotype that persons with mental disabilities lack capacity and exacerbates the historical disadvantages faced by persons with mental disabilities.
4. None of this is justifiable under s. 1 of the Charter: BC’s regime is not minimally impairing—including because every other province and territory impairs rights significantly less. Further, the impugned legislation is not proportionate: it causes significant harm to some involuntary patients.

Our team was led by Patrick Williams and included Connor Bildfell, Tanner Lorenson, and Kyra McGovern. McCarthy Tétrault partnered with the Community Legal Assistance Society to represent CCD pro bono. In recognition of that service—and the magnitude and importance of this case—the court awarded CCD special costs of the trial.