In August 2018, nearly two years after this case started, the BC government brought an application arguing that the Council of Canadians with Disabilities (“CCD”) should not be allowed to bring the case to trial. The government said that CCD did not have “standing” – or the legal status – to stand up for the rights of people with mental disabilities in court. It is very common for non-profit organizations to file Charter challenges to laws that impact the communities they serve because marginalized individuals often face barriers to launching and sustaining lengthy court cases. However, on October 12, 2018 the BC Supreme Court decided that CCD did not have standing and dismissed the case before it went to trial (read the decision here). CCD has appealed the BC Supreme Court’s decision.
Public interest standing is an important way to improve access to justice for marginalized communities. People with mental disabilities, particularly those detained under the Mental Health Act, face many barriers to accessing the courts. Charter cases take many years and significant resources to wind through the courts. Individuals who file Charter challenges face the risk of public exposure of their identity, stigma and discrimination, a loss of privacy over confidential psychiatric records, the risk of court costs being awarded against them, potential reprisal from health care providers and personal supporters, and significant stress and upheaval in their lives. For these reasons, many important cases would never get to court unless non-profit organizations like CCD come forward to take on important Charter challenges.
It is disappointing that the government chose to challenge the ability of non-profit organizations to represent the communities they serve in court instead of coming to court to address the issues. The serious questions raised by this Charter challenge about the rights of people with mental disabilities deserve to be considered in court.