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Tuesday, September 29, 2020 @ 6:21 AM  

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Appeal by the plaintiff from summary judgment dismissing its action challenging the constitutional validity of B.C.’s mental health legislation related to the provision of non-consensual psychiatric health care treatment on the basis the appellant lacked public interest standing to pursue the challenge. The appellant was a national not-for-profit association founded by persons with disabilities to represent and advance their interests, including the interests of those with mental health-related disabilities. The appellant acted as a consultant to the federal government on issues relating to the rights of persons with disabilities. The appellant alleged the impugned provisions deprived all involuntary patients of the right to consent to psychiatric treatment regardless of their actual capability to do so and precluded substitute decision makers from making treatment decisions as their representatives, thus infringing ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter). The appellant argued the judge erred by misapprehending the factors that governed public interest standing, considered legally irrelevant criteria and denied the appellant standing for failing to meet those criteria.

HELD: Appeal allowed. The appellant’s application for public interest standing was remitted for reconsideration. The judge’s analysis of standing did not comport in all respects with the flexible, purposive approach mandated. The judge erred in his assessment of the factual foundation required to ground the constitutional challenge advanced and satisfy the serious justiciable issue criterion. The appellant’s claim did not require a factual context of an individual’s case or an individual plaintiff and manifestly raised a serious justiciable issue. A challenge to the constitutional validity of legislation was always justiciable, regardless of whether it had policy implications, because the challenge concerned government policy translated into law and thus subject to Charter compliance. The appellant’s claim was a comprehensive and systemic constitutional challenge to specific legislation that directly affected all members of a defined and identifiable group in a serious, specific and broadly-based manner regardless of the individual attributes or experiences of any member of the group.

Council of Canadians with Disabilities v. British Columbia (Attorney General), [2020] B.C.J. No. 1326, British Columbia Court of Appeal, S.D. Frankel, G. Dickson and J. DeWitt-Van Oosten JJ.A., August 26, 2020. Digest No. TLD-September282020003