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There are complexities associated with the administration of the BC Mental Health Act. and the federal statutes related to criminality and mental illness that tend to get lost in the emotional debate that has erupted around the dangerous offender legislation. I agree with Mr. Moore that the prospect of a man who killed three innocent children being released is appalling, I share his view that there is the complete absence of concern for justice, survivors and the optics around the pursuit of justice peculiar to this case. Please note, however, that to the extent the system has failed the victims, in this case, the system has failed those accused of mental illness in a multitude of other cases.
There are complexities associated with the administration of the BC Mental Health Act. and the federal statutes related to criminality and mental illness that tend to get lost in the emotional debate that has erupted around the dangerous offender legislation. I agree with Mr. Moore that the prospect of a man who killed three innocent children being released is appalling, I share his view that there is the complete absence of concern for justice, survivors and the optics around the pursuit of justice peculiar to this case. Please note, however, that to the extent the system has failed the victims, in this case, the system has failed those accused of mental illness in a multitude of other cases.
In James Moore’s discourse he says, the federal government
writes the law, in fact, the BC Mental Health Act is written by the provincial government.
What has facilitated the absence of justice, in this case, is the willingness for
provincial bodies to permit Review Boards to do what courts should. This is a
two-edged sword, it permits the lax management of dangerous people AND the lax
conviction of the innocent people. The BC Mental Health Act. The Review Panel process
is retrograde justice as it flouts common law traditions and fundamental justice.
In this case, it has failed in any way to bring a reasonable response to a heinous
event and every day the BC Mental Health Act. fails to bring the appropriate degree
of Judicial Review to the apprehension, incarceration and forced treatment of those
accused of mental illness.
The BC Mental Health Act. has removed legal process from the
courts and transferred it into medical institutions. The case in question utilized
federal legislation that provisions for a designation of innocence due to
mental illness. Once the court has deemed someone to be mentally ill they are
then administered under the respective provincial mental health act. If someone
is ill, the illness generates “criminal” behaviour and then they are cured, the
state has done its job – as the logic goes. The challenge is that “severity” is
unaccounted for – it is the severity of the action in the case in question that
the public is responding to and that motivated the creation of Dangerous Offender Legislation.
It is fundamental in law that Standards of Review (the rigour
by which the court “questions” and “supports” data) be commensurate with both
criminal action and state sanction. By way of example, the court processes associated
with a speeding ticket are less rigorous than court processes related to the murder. It is also fundamental that there is clarity in the law, that the law is sufficiently
well defined that it gives a clear direction to those required to administer it.
The present act fails to define the severity of disease and
fails to account for the variance of action subsequent to disease. Section 22 of
the BC Mental Health Act. can incarcerate people for the murder of three
children and for spending their own money radically – that is the breath of
human action a single law addresses. The present act fails to account for the severity of action, if someone is accused of Bi-Polar disease absent any “wrongdoing” they are subject to the same or perhaps more rigorous treatment than another
with the same diagnosis; depending on the judgement of the treating physical
and subsequent treatment (arbitrary).
I have written extensively on the BC Mental Health Act and
the imperative for change; it was refreshing to me to witness rapid action in
defence of victims. One wishes the government were as eager to come to the aid
of another set of victims, those accused of mental illness that are grossly discriminated
against by retrograde judicial process, process detached from the judiciary and
process, as clearly demonstrated in this case, detached from reality. The BC Mental Health Act is bad law, it
breaches the Charter of Rights and Freedoms in several ways, it flouts common
law traditions, it is divorced from fundamental or natural law, it is
discriminatory and worse, its processes effect a state of reverse onus at the outset of The Review Panel Process. Good law tacked on top of bad law – is still
bad law, the federal government needs to be as rigorous in holding British
Columbia to account for bad law, as it has been in generating this new law.
For more on this issue click the links below
Bad Law - BC Mental Health Act.
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