Finally, a challenge to detention of ‘certifiable’ people in BC

Unlike other Canadian jurisdictions, those who are deemed to be mentally ill in British Columbia can be held indefinitely. B.C. does not have an automatic review of ongoing detention and unless individuals can take the case to the court, there is no recourse.

image: BC Mental Health Rights

That means that persons, who may or may not be mentally ill, can be held endlessly. Who is deemed “mentally ill” can be arbitrary. Those with cognitive impairments or genetic illnesses that impair their ability to communicate can be held in institutions under a doctor’s orders.

More than 25,000 people detained every year under BC’s Mental Health Act.

“BC is the only jurisdiction in Canada that still uses a ‘deemed consent’ model, which violates the Canadian Charter and the UN Convention on the Rights of Persons with Disabilities,” says Michael Feder, a lawyer for the Council of Canadians With Disabilities (CCD).

Deemed consent means that people who are involuntarily detained under BC’s Mental Health Act are assumed to have given consent to detainment and treatment.  They are legally forced to receive all psychiatric treatment, including medications and electroconvulsive therapy -even when they are mentally capable of making their own treatment decisions.

The law also deprives detained individuals the right to a substitute decision maker, like a representative or family member, to give or refuse treatment on their behalf.

It’s difficult, but not impossible for wrongly detained people to gain freedom –but only if they take the case to court themselves.

Take the case of “A.H.,” a First Nations 39-year-old woman who was wrongfully detained for almost a year.

In a court case between A.H. and the Fraser Health Authority, the Supreme Court of B.C. learned that A.H. had been held against her will and that she was not even found to be mentally ill.

It wasn’t a simple case. A.H. suffers from cognitive impairments and mental health issues. She has a history of substance abuse, family violence and sexual abuse. She was also diagnosed with Fetal Alcohol Spectrum Disorder (FASD).

A.H.’s mother sexually exploited her by pressuring her to drink alcohol and take drugs to make her compliant to sexual abuse.

However, many of those held against their will don’t have the resources to take their case to court. In that event, they will languish indefinitely. Michael Feder says:

“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.”

In the past two psychiatric patients tried to challenge the law but given their fragile condition, withdrew.  People with cognitive impairments, or those who face cultural or racial bias, are not well equipped to handle the stress of legal cases. The B.C. government asked the court to dismiss the challenge because the two had withdrawn from the case. The B.C. Supreme Court agreed, 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 with the B.C. Supreme Court, stressing the importance of access to justice. B.C. then appealed the ruling to the Supreme Court of Canada.

The Supreme Court of Canada is allowing a constitutional challenge to go ahead against B.C.’s law that authorizes the confinement and forcible treatment of psychiatric patients in British Columbia.

It’s about time.

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Local content on the new aether

Medieval scientists believed that radio waves were carried through a medium they called the aether. Seems sensible. If sound waves require a medium, why not radio waves? It turns out that radio doesn’t need a medium; a vacuum will do nicely.

     radio waves

The internet is the new aether. The “network of networks” depends on wires and optical fibers to carry signals. The internet wouldn’t exist without it (Wifi is radio but it’s just a connection to the internet).

We straddle both worlds –ethereal radio waves surround us while the internet remains wired. If I put up an antenna, I can receive CFJC TV for free. I chose to pay Shaw cable to have the station delivered to my house.

The internet is as disruptive as early radio and TV was and its role is still being defined. Is the internet a broadcaster? If CFJC is a broadcaster and if I can receive the same station over the internet, it would seem like it.

Not so. In 2012, the Supreme Court of Canada heard arguments from program producers that cable companies were broadcasters. The court agreed with cable companies that they were not.

It’s not trivial matter. If traditional TV stations are broadcasters and cable companies are, then the cost of production local shows and news has to be paid for by the TV stations –they receive nothing for the signals that cable carries.

It’s a problem in small cities like Kamloops because local news and programming is expensive to produce and ad revenue is not as high as large cities.

In the past, cable and satellite companies have grudgingly paid into temporary funds to support local programming but it’s a constant battle. This has left small markets scrambling to make ends meet.

Local news is vital. It not only informs the community it serves, reflects its values, and is vital in emergencies. Rick Arnish, Chair of the Small Market Independent Television Stations Coalition (SMITS), was a strong advocate of local TV before retiring. He also supported free over-the-air TV for people who can’t afford cable. He made that clear in his letter to the Canadian Radio-television & Telecommunications Commission in 2015:

“Over 95% of the participants who posted comments on the topic of over-the-air television in the online consultation held during Phase 3 referred to the importance and value of the ability to receive television programs inexpensively over the air and opposed proposals to shut down transmitters. Canadians value local news, with a CRTC commissioned poll putting the number who consider it ‘important’ at 81%.”

Arnish also made clear that cable companies should share the cost of local TV if small stations are to survive.

“Moreover, all things being equal, with the phase out of LPIF [Local Programming Improvement Fund] now complete, the SMITS Coalition stations as a group will be in the red this broadcast year, given the loss of the $5.4 million contributed by LPIF last year.”

Before retiring last year, Arnish was Program Director at CFJC TV and General Manager of Broadcast Centre and later President of the Jim Pattison Broadcast Group.

The internet transmits the content from traditional sources without paying for its creation. Unlike the old aether which radiated local programming, the new aether sucks the life from local TV.

Removal of links and the death of history on the internet

Convicted killer Clifford Olson would probably have preferred that any account of his murder of eleven children and young people in the 1980s removed from the internet. Links such as this Wikipedia article which detail the grisly horror.

Courtesy of Gizmodo

A B.C. technology company also wants links removed for a completely different reason. Equustek’s wants Google to remove links to a competitor’s website. Equustek successfully sued that competitor for theft of their hardware design but the competitor persisted on selling it online. The B.C. Supreme Court ruled in 2014 that Google had to comply with Equustek’s request and remove the links. Google complied reluctantly.

However, the court order lays bare a much bigger problem than murder or industrial theft –the erasure of history on the internet. At issue is whether anyone, of motives pure or corrupt, should be able to remove records of significant historical events. Katherine Maher from Wikipedia worries about the jurisdiction of any court to remove history.

“If any country can demand the worldwide removal of search results, vast sections of history, science and culture could disappear from the global Internet. This could infringe on our ability to learn about the history of Tiananmen Square, the potential medical properties of cannabis, the discoveries of Darwin, or unsavoury allegations against the U.S. president-elect (Globe and Mail, Dec 9, 2016).”

Google doesn’t think it’s fair either and has taken their case to the Supreme Court of Canada where issue is currently being deliberated.

But Google is just the messenger. They don’t make webpages, they just find them.  While I’m reluctant to defend global corporate giants, I’m on Google’s side on this one. So are lawyers Ivo Entchev and Jeremy Opoplsky. Not only has the Google been “deputized” to carry out duties of Canadian law but Google is not even incorporated in B.C.

“Google did nothing wrong, but is being forced to bear the cost and responsibility to fix the problem.” “Moreover, Google is concerned by the prospect that court orders from a single jurisdiction can require the search engine to change its worldwide results Globe and Mail Dec. 11, 2016).”

So far, the Supreme Court sees only the little picture. Dissuaded by the threat to history and Google’s argument that the court doesn’t have global jurisdictions, Justice Rosalie Abella was sympathetic to arguments from Equustek’s lawyer.

“Just looking at it from the public interest point of view and the public perception point of view, you really think the public is going to line up behind the right to distribute internationally illegal contraband?” Justice Rosalie Abella asked, “What’s the harm to Google in preventing illegal activity in its wide distributive reach (Globe and Mail, Dec. 6, 2016)?”

If I may respond, Madame Abella, the harm in preventing illegal activity through the deletion of links is that search engines are not the problem. Google is simply shining a spotlight on the grimy nooks and interesting crannies of the world; some of them are illegitimate businesses that well-intentioned Equustek would like to eliminate; others that murderers, tyrants and presidents-elect would prefer remain unseen.

Clash of law, politics, treaty rights, and technology at Site C dam

Protests continue at the Site C dam location on the Peace River despite a court that allows building.  The Supreme Court of British Columbia ruled in September that attempts by the Prophet River and West Moberly First Nations to quash an environmental certificate issued by the government were invalid.

“I am satisfied that the petitioners [first nations] were provided a meaningful opportunity to participate in the environmental assessment process,” Justice Robert Sewell wrote.

That didn’t stop Arthur Hadland from blocking construction. The long-time politician and area farmer was charged with mischief after being arrested earlier this month. “I don’t want to be a hero,” Hadland told CBC News. “Someone has to speak for the river.” He’s a Peace River Regional District director and ran as an independent in the last provincial election. Pat Pimm, who won the riding for the B.C. Liberals, is in favour of the dam.

Helen Knott of the Prophet River First Nation is occupying an historic trading post site in protest of the construction. Knott and her group are committed to defending treaty rights, even if it means being arrested.

“It’s not necessarily anybody goes into it with that idea, like, yeah, we’re going to be arrested, right? It’s that, yeah, we’re committed to saving this tract of land and to, you know, actively use our treaty rights here,” she told CBC News.

Knott’s view epitomizes a clash of cultures in B.C. This province is unique in Canada in that only two historical treaties were signed with indigenous people. As a result the question of land ownership remained unsettled for much of B.C. until the Tsilhqot’in decision of the Supreme Court of Canada. It ruled that, yes, B.C. natives had aboriginal title to a 1,750 square kilometres region.

The implications of the Supreme Court ruling are unclear. Globe and Mail reporter Jeffrey Simpson says: “The court’s ruling was complicated, which might explain the variety of interpretations. It did say that the Tsilhqot’in First Nation had aboriginal title over a portion of the land it had claimed, but by no means all of it.”

B.C.’s aboriginal leaders have a different interpretation. The Union of British Columbia Indian Chiefs and representatives of the First Nations Summit and the B.C. Assembly of First Nations argue that the ruling gives title to aboriginals over all of British Columbia, not just pieces where the courts decide title exists.

In a press release last June, First Nations affirmed that in one of four principles: “1) Acknowledgement that all our relationships are based on recognition and implementation of the existence of indigenous peoples inherent title and rights, and pre-confederation, historic and modern treaties, throughout British Columbia.”

In their view, in light of the ruling, nothing has changed from before European settlers came here.

From a technical viewpoint, there’s disagreement about the need for this dam. I argued a year ago that, while dams are an excellent complement to solar and wind, Site C will produce power that we don’t need now; especially not now that the scaled-down LNG plants won’t need the electricity. While the technology is sound, the location at site C isn’t at this time.