Abstract
Relying on the Supreme Court of Canada’s decision in British Columbia (Attorney General) v. Council of Canadians with Disabilities as illustration, this paper aims to broaden perspectives about the availability of disability rights and disability justice. The first section considers the access to justice concerns that flow from the initial decision to deny standing to the Council of Canadians with Disabilities. Second, it addresses the barriers to accessing justice for persons with disabilities that grounded the case and the disproportionate impact of the impugned mental health legislation on equity-denied communities. The final section evaluates the persistence of procedural and substantive barriers to accessing disability justice. While we celebrate the Supreme Court’s decision, public interest standing alone is insuffıcient to address the deeply rooted barriers to disability justice. Instead, a comprehensive and collective approach is necessary to confront systemic barriers to justice, acknowledging intersecting forms of sanism.
Citation Information
Sheldon, C. Tess; Spector, Karen R.; and Dhand, Ruby.
"From Rights to Justice: Perspectives on Access to Disability Justice in BritishColumbia (Attorney General) v. Council of Canadians with Disabilities."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
115.
(2024).
DOI: https://doi.org/10.60082/2563-8505.1445
https://digitalcommons.osgoode.yorku.ca/sclr/vol115/iss1/3
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
References
1 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27, 2022 SCC 27 (S.C.C.) [hereinafter "CCD v. BC"].
2 This paper uses various terms including "disabled persons", "persons with disabilities", "persons with mental health issues" and persons with "mental health disabilities". We recognize that these terms are politically and academically contested and evolving. Other terms include consumer-survivors of the psychiatric system, ex-patients, neurodivergent, neurotypical, neurodiverse, service users/refusers. We sometimes adopt "person-first" language (i.e., persons with mental health issues instead of the mentally ill) and other times adopt "identity-first'' language (i.e., an autistic person versus person with autism). It, however, consistently avoids over-emphasis on diagnostic labels, including from the Diagnostic and Statistical Manual of Mental Disorders, American Psychiatric Association.
3 All three authors were counsel to interveners at the Supreme Court. Tess Sheldon, Karen R. Spector and Kelley Bryan represented the Mental Health Legal Committee, a group of lawyers in Ontario who represent clients with mental health disabilities on issues of capacity, consent, detention, discrimination and constitutional challenges to mental health legislation. Ruby Dhand was part of a legal team led by Anita Szigeti for a different intervener, the Empowerment Council, a non-profit organization that acts as a voice for the collective community of mental health and addiction service users, primarily in the Toronto area and at the Centre for Addiction and Mental Health.
4 Stephanie Ortoleva, "Inaccessible Justice: Human Rights, Persons with Disabilities and the Legal System" (2011) 17:2 ILSA Journal of International and Comparative Law 281; Justice Richard D. Schneider, "The Mentally Ill: 'Under-Righted' or 'Under-Lawyered'?" (2008) 25 Windsor Rev. Leg. and Soc. Issues 145; David Lepofsky, "People With Disabilities Need Lawyers Too! A Ready-To-Use Plan for Law Schools to Educate Law Students to Effectively Serve the Legal Needs of Clients With Disabilities as Well as Clients Without Disabilities" (2022) 38 W.Y.A.J. 148 at 152: "People with disabilities too often encounter recurring disability barriers when seeking legal services and/or when involved with courts, administrative tribunals, or regulatory regimes. Our legal system, court system, regulatory tribunal system, and legal profession, like the rest of our society, has operated for years on the implicit, invisible, and pervasive premise that those they serve have no disabilities." https://doi.org/10.22329/wyaj.v38.7780
5 Ontario Human Rights Commission, By the Numbers: A Statistical Profile of People with Mental Health and Addiction Disabilities in Ontario (Toronto: OHRC, 2015), online: https://www3.ohrc.on.ca/sites/default/files/By%20the%20numbers_Statistical%20profile%20of%20people%20with%20mental%20health%20and%20addiction%20disabilities%20in%20Ontario_accessible_5.pdf ; Ontario Human Rights Commission, Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions (Toronto: OHRC, 2014), online: https://www3.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf at 26ff.
6 C. Tess Sheldon, Karen R. Spector & Mercedes Perez, "Re-Centering Equality from the Inside: The Interplay Between Sections 7 and 15 of the Charter in Challenges to Psychiatric Detention" (2016) 35:2 N.J.C.L. 193 at 219.
7 Eilionóir Flynn, "Access to Justice and its Relevance to People with Disabilities" in Disabled Justice? Access to Justice and the UN Convention on the Rights of Persons with Disabilities (London & New York: Routledge, 2015) at 14ff.
8 Sagit Mor, "With Access and Justice for All" (2019) 39 Cardozo L. Rev. 611 at 633.
9 Trevor Farrow, "What is Access to Justice?" (2014) 51:3 Osgoode Hall L.J. 957 at 971. https://doi.org/10.60082/2817-5069.2761
10 Kristin Bennett & Mark Hannah, "Transforming the Rights-Based Encounter: Disability Rights, Disability Justice, and the Ethics of Access" (2022) 36:3 J. Business & Technical Communication 326 at 328. https://doi.org/10.1177/10506519221087960
11 Mia Mingus, "How our communities can move beyond access to wholeness" (February 12, 2011), online (blog): Leaving Evidence https://leavingevidence.wordpress.com/2011/02/12/changing-the-framework-disability-justice/.
12 Leah Piepzna-Samarasinha, Care Work: Dreaming Disability Justice (Vancouver: Arsenal Pulp Press, 2018).
13 Ontario Human Rights Commission, Policy on ableism and discrimination based on disability (Toronto OHRC 2016), online: https://www3.ohrc.on.ca/sites/default/files/Policy%20on%20ableism%20and%20discrimination%20based%20on%20disability_accessible_2016.pdf.
14 Simi Linton, Claiming Disability: Knowledge and Identity (New York: New York University Press, 1998).
15 Michael Perlin, "Half-wracked Prejudice Leaped Forth: Sanism, Pretextuality, and Why and How Mental Disability Law Developed As It Did" (1999) 10 J. Contemp. Legal Issues 28; Michel Perlin, "Sanism and the Law" (2013) 15:10 Medicine and Society 878. https://doi.org/10.1001/virtualmentor.2013.15.10.msoc1-1310
16 Jennifer Poole, Tania Jivraj, Araxi Arslanian, Kristen Bellows, Sheila Chiasson, Husnia Hakimy, Jessica Pasini & Jenna Reid, "Sanism, 'Mental Health', and Social Work/Education: A Review and Call to Action" (2012) 1 Intersectionalities: A Global J. of Soc. Work Analysis, Research, Polity, and Practice 20.
17 Judi Chamberlin, The Ex-Users' Movement: Empowerment, Recovery, and the Politics of Mental Health (New York: Routledge, 1987); Judi Chamberlin, "The Ex-Patients' Movement: Where We've Been and Where We're Going" (1990) 11:3-4 Journal of Mind and Behaviour 323. Judi Chamberlin adopts the term "mentalism", "a set of assumptions which most people seemed to hold about mental patients: that they were incompetent, unable to do things for themselves, constantly in need of supervision and assistance, unpredictable, likely to be violent or irrational, and so forth".
18 Chief Justice Richard Wagner, "Access to Justice: A Societal Imperative" (delivered at the seventh Annual pro Bono Conference, October 4, 2018) [unpublished], online: https://www.scc-csc.ca/judges-juges/spe-dis/rw-2018-10-04-eng.aspx?pedisable=true.
19 Mental Health Act, R.S.B.C. 1996, c. 288, s. 31(1). https://doi.org/10.1108/13619322199600042
20 Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c. 181, s. 2(b), (c).
21 Representation Agreement Act, R.S.B.C. 1996, c. 405, s. 11(1)(b), (c).
22 There are alternatives to predominant approaches to legal capacity that rely on simplistic view of either having or lacking capacity. Supported decision-making models, on the other hand, offer support to individuals whose capacity is in question to make their own decisions. See, e.g., Law Commission of Ontario, "Legal Capacity, Decision-making and Guardianship: Final Report" (Toronto: March 2017) at 68ff; Sheila Wildeman, "Consent to Psychiatric Treatment: From Insight (into Illness) to Incite (a Riot)" in Colleen Flood & Jennifer Chandler, eds., Law and Mind: Mental Health Law and Policy in Canada (Toronto: LexisNexis Canada, 2016) at 23ff.
23 Mary Louise MacLaren, D.C. and Council of Canadians with Disabilities v. Attorney General of British Columbia, 2022 SCC 27 (Amended Claim at para. 17). After Louise MacLaren and DC discontinued their claims, this paragraph was crossed out of the Plaintiff's Amended Notice of Civil Claim.
24 Community Legal Assistance Society, "Charter challenge of forced psychiatric treatment filed in BC Supreme Court" (September 13, 2016), online: https://clasbc.net/charter-challenge-of-forced-psychiatric-treatment-filed-in-bc-supreme-court/.
25 Community Legal Assistance Society, "Charter challenge of forced psychiatric treatment filed in BC Supreme Court" (September 13, 2016), online: https://clasbc.net/charter-challenge-of-forced-psychiatric-treatment-filed-in-bc-supreme-court/; Mary Louise MacLaren, D.C. and Council of Canadians with Disabilities v. Attorney General of British Columbia, 2022 SCC 27 [hereinafter "Amended Claim").
26 Amended Claim at paras. 39, 41. After Louise MacLaren and DC discontinued their claims, this paragraph was crossed out of the Plaintiff's Amended Notice of Civil Claim.
27 Amended Claim at para. 47. After Louise MacLaren and D.C. discontinued their claims, this paragraph was crossed out of the Plaintiff's Amended Notice of Civil Claim.
28 Amended Claim at paras. 34, 47. After Louise MacLaren and D.C. discontinued their claims, this paragraph was crossed out of the Plaintiff's Amended Notice of Civil Claim.
29 MacLaren v. British Columbia (Attorney General), [2018] B.C.J. No. 3387 at para. 38, 2018 BCSC 1753 (B.C.S.C.).
30 MacLaren v. British Columbia (Attorney General), [2018] B.C.J. No. 3387 at para. 53, 2018 BCSC 1753 (B.C.S.C.).
31 Council of Canadians with Disabilities v. British Columbia (Attorney General), [2020] B.C.J. No. 1326 at para. 95, 2020 BCCA 241 (B.C.C.A.).
32 Council of Canadians with Disabilities v. British Columbia (Attorney General), [2020] B.C.J. No. 1326 at para. 11, 2020 BCCA 241 (B.C.C.A.).
33 Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] S.C.J. No. 45, 2012 SCC 45 (S.C.C.).
34 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at paras. 66-67, 92-94, 2022 SCC 27 (S.C.C.). https://doi.org/10.21608/jstc.2022.229880
35 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at para. 116, 2022 SCC 27 (S.C.C.). https://doi.org/10.1017/aju.2021.68
36 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at para. 115, 2022 SCC 27 (S.C.C.).
37 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter "Charter"].
38 Entrop v. Imperial Oil, [2000] O.J. No. 2689 at para. 89, 137 O.A.C. 15 (Ont. C.A.).
39 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at para. 85, 2022 SCC 27 (S.C.C.).
40 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at para. 23, 2022 SCC 27 (S.C.C.) (Affidavit of Melanie Benard, then Chair of CCD's Mental Health Committee dated August 14, 2018). Melanie Benard indicated that all persons with disabilities face individual experiences that "may vary depending on the specific context, type of disability, personal characteristics (such as gender or race), and numerous other factors".
41 Ontario (Attorney General) v. G, [2020] S.C.J. No. 38 at para. 62, 2020 SCC 38 (S.C.C.): "The prejudicial idea that those with mental illnesses are inherently and perpetually dangerous, along with other stigmatizing, prejudicial notions, has led to profound disadvantage for individuals living with mental illnesses . . . This disadvantage has deep historical roots."
42 The Law Commission of Ontario, "The Law as it Affects Persons with Disabilities: Preliminary Consultation Paper: Approaches to Defining Disability" (June 2009), online: https://www.lco-cdo.org/wp-content/uploads/2010/10/disabilities_Disabilities%20Threshold%20Paper%20-%20July%202009.pdf at 34.
43 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at para. 26, 2022 SCC 27 (S.C.C.) (Affidavit of Melanie Benard, then Chair of CCD's Mental Health Committee dated August 14, 2018).
44 Stewart v. Elk Valley Coal Corp., [2017] S.C.J. No. 30 at paras. 10, 34, 59, 71, 88, 100, 101, 2017 SCC 30 (S.C.C.); Ontario (Director, Disability Support Program) v. Tranchemontagne, [2010] O.J. No. 3812 at paras. 132-133, 170-174, 179, 2010 ONCA 593 (Ont. C.A.); Ontario Human Rights Commission, "Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions" (Toronto: OHRC, 2014), online: https://www3.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf at 15; Canada (Attorney General) v. PHS Community Services Society, [2011] S.C.J. No. 44 at para. 106, 2011 SCC 44 (S.C.C.).
45 Ontario Human Rights Commission, "Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions" (Toronto: OHRC, 2014), online: https://www3.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf at 57: "Because of the extreme stigma around certain types of mental health disabilities and addictions, many people may be afraid to disclose their disability to others."
46 Ontario (Director, Disability Support Program) v. Tranchemontagne, [2010] O.J. No. 3812 at paras. 121, 126, 2010 ONCA 593 (Ont. C.A.); Ontario Human Rights Commission, "Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions" (Toronto: OHRC, 2014), online: https://www3.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf at 3, 49.
47 Ontario Human Rights Commission, "Minds That Matter: Report on the consultation on human rights, mental health and addiction" (Toronto: OHRC, 2012), online: https://www3.ohrc.on.ca/sites/default/files/Minds%20that%20matter_Report%20on%20the%20consultation%20on%20human%20rights%2C%20mental%20health%20and%20addictions.pdf?_gl=1*1wjhyqy*_ga*MjExNDQ0MzMyMC4xNjk1ODIxNzgy*_ga_K3JBNZ5N4P*MTY5NTgyNjE4NC4yLjAuMTY5NTgyNjE4NC4wLjAuMA. at 15: "Some participants did not identify as having a disability or a psychiatric disability. This occurred in part because they did not experience barriers that negatively affected them; they did not identify with the label; they felt the description implied that they are chronically unwell, which removed a sense of hope; or they generally rejected the concept of "mental illness."; "I have a diagnosis but don't consider myself disabled; the person next to me could have the same diagnosis and be disabled. At what point is it a disability? - Representative from Ontario Peer Development Initiative".
48 Theresia Degener, "Disability in a Human Rights Context" (2016) 5:3 Laws 35 at 37: "Disability according to the medical model remains the exclusive realm of helping and medical disciplines." https://doi.org/10.3390/laws5030035
49 Montréal (City) v. Quebec (Commission des droits de la personne et des droits de la jeunesse), [2008] S.C.J. No. 49, [2008] 2 S.C.R. 698 (S.C.C.); Eaton v. Brant County Board of Education, [1996] S.C.J. No. 98 at para. 67, [1997] 1 S.C.R. 241 (S.C.C.); Granovsky v. Canada (Minister of Employment and Immigration), [2000] S.C.J. No. 28 at paras. 29-30, 2000 SCC 28 (S.C.C.); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] S.C.J. No. 24 at para. 77, 2000 SCC 27 (S.C.C.): "By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a 'handicap'. In fact, a person may have no limitations in everyday activities other than those created by prejudice and stereotypes."
50 David Lepofsky, "Discussion: The Charter's Guarantee of Equality to People with Disabilities - How Well Is It Working?" (1998) 16 W.Y.A.J. 155 at 162.
51 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at para. 27, 2022 SCC 27 (S.C.C.) (Affidavit of Melanie Benard, then Chair of CCD's Mental Health Committee dated August 14, 2018).
52 Ruby Dhand, "Access to Justice for Ethno-Racial Psychiatric Consumer/Survivors in Ontario" (2011) 29 W.Y.A.J. 127 at 128. https://doi.org/10.22329/wyaj.v29i0.4483
53 Ruby Dhand, "Access to Justice for Ethno-Racial Psychiatric Consumer/Survivors in Ontario" (2011) 29 W.Y.A.J. 127 at 128. https://doi.org/10.22329/wyaj.v29i0.4483
54 Ombudsperson, British Columbia, "Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act" (Special Report No. 42) (March 7, 2019), online: https://bcombudsperson.ca/assets/media/OMB-Committed-to-Change-FINAL-web.pdf at 76.
55 Ombudsperson, British Columbia, "Committed to Change: Protecting the Rights of Involuntary Patients under the Mental Health Act" (Special Report No. 42) (March 7, 2019), online: https://bcombudsperson.ca/assets/media/OMB-Committed-to-Change-FINAL-web.pdf at 76.
56 Bill 23, Mental Health Amendment Act, 2022, 3rd Sess., 71st Leg., British Columbia, 2022, online: https://www.leg.bc.ca/content/data%20-%20ldp/Pages/42nd3rd/1st_read/PDF/gov23-1.pdf.
57 Health Justice, "ICYMI: April Edition" (May 12, 2022), online: https://www.healthjustice.ca/blog/icymi-april-edition-2022.
58 Health Justice, "Bill 23 Overview: Introducing Independent Rights Advice in the Mental Health Act" (April 29, 2023), online: https://www.healthjustice.ca/blog/mha-bill-23#:~:text=Bill%2023%20says%20that%20detaining,a%20request%20is%20made%20(ss.
59 West Coast LEAF, "Rights-Based Legal Aid: Rebuilding BC's Broken System" (November 2010), online: https://westcoastleaf.org/wp-content/uploads/2023/08/2010-REPORT-Rights-Based-Legal-Aid-Rebuilding-BCs-Broken-System.pdf at 4.
60 Sagit Mor, "With Access and Justice for All" (2019) 39 Cardozo L. Rev. 611 at 618.
61 Doron Dorfman, "[Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights" (2020) 10:2 U.C. Irvine L. Rev. 557
Doron Dorfman & Mariela Yabo, "The Professionalization of Urban Accessibility" (2020) 47 Fordham Urb. L.J. 1213 at 1217. https://doi.org/10.2139/ssrn.3674101
62 Sagit Mor, "With Access and Justice for All" (2019) 39 Cardozo L. Rev. 611 at 613.
63 Katie Eyer, "Claiming Disability" (2021) 101:2 B.U.L. Rev. 547 at 561.
64 Convention on the Rights of Persons with Disabilities, December 13, 2006 (entered into force May 3, 2008).
65 Lucy Series, "The Development of Disability Rights under International Law: From Charity to Human Rights" (2015) 30:10 Disability & Society 1590. https://doi.org/10.1080/09687599.2015.1066975
66 Colin Barnes, "Understanding the social model of disability: past, present and future" in Nick Watson & Simo Vehmas, eds., Routledge Handbook of Disability Studies, 2d ed. (New York: Routledge, 2020) 14 at 20.
67 Anna Lawson & Angharad Beckett, "The Social and Human Rights Models of Disability: Towards a Complementarity Thesis" (2021) 25:2 The Intl. J. of Human Rights 348. https://doi.org/10.1080/13642987.2020.1783533
68 Article 13 of the CRPD protects access to justice, "which may include criminal as well as civil proceedings, administrative hearings, and quasi-judicial tribunals, and it covers the preliminary stages that precede the formal stage of a trial, including any inquiries run by investigative and other agencies".
69 United Nations Human Rights Office of the High Commissioner, International Covenant on Civil and Political Rights (December 16, 1966), art 14.
70 Amended Claim at para. 8.
71 Jessica De Marinis, Kerri Joffe & Rachel Weiner, "The Influence of the Convention on the Rights of Persons with Disabilities on Canadian Jurisprudence in the First Decade Since its Ratification" (2022) 38 W.Y.A.J. 192 https://doi.org/10.22329/wyaj.v38.7781
see also Ravi Malhotra, "The United Nations Convention on the Rights of Persons with Disabilities in Canadian and American Jurisprudence" (2015) 32:2 W.Y.A.J. 1. https://doi.org/10.22329/wyaj.v32i2.4679
72 Sheila Wildeman, "Protecting Rights and Building Capacities: Challenges to Global Mental Health Policy in Light of the Convention on the Rights of Persons with Disabilities" (2013) 41:1 J.L.M.E. 48. https://doi.org/10.1111/jlme.12005
73 Catalina Devandas-Aguilar, "End of Mission Statement" (delivered at the United Nations Special Rapporteur on the rights of persons with disabilities visit to Canada, April 12, 2019) [unpublished], online: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24481&LangID=E; Sandra Fredman, "Human Rights Transformed: Positive Duties and Positive Rights" (2006) 38 Leg. Research Paper Series 1.
74 Katharina Heyer, Rights Enabled: The Disability Revolution, from the US, to Germany and Japan to the United Nations (Ann Arbor: University of Michigan Press, 2015); Neta Ziv, "The Social Rights of People with Disabilities" in Daphne Barak-Erez & Aeyal M. Gross, eds., Exploring Social Rights Between Theory and Practice (London: Hart Publishing, 2007) 369.
75 Sagit Mor, "With Access and Justice for All" (2019) 39 Cardozo L. Rev. 611 at 628.
76 David Lepofsky, "Equal Access to Canada's Judicial System for Persons with Disabilities - A Time for Reform" (1995) 183:5 N.J.C.L. 1.
77 Joshua Sealy-Harrington, "Access to (In)justice: A critical race reflection" (March 24, 2021), online: Law360 https://www.law360.ca/articles/25551/access-to-in-justice-a-criticalrace-reflection-joshua-sealy-harrington.
78 Trevor Farrow, "What is Access to Justice?" (2014) 51:3 Osgoode Hall L.J. 957 at 970. https://doi.org/10.60082/2817-5069.2761
79 Trevor Farrow, "What is Access to Justice?" (2014) 51:3 Osgoode Hall L.J. 957 at 970. https://doi.org/10.60082/2817-5069.2761
80 Trevor Farrow, "What is Access to Justice?" (2014) 51:3 Osgoode Hall L.J. 957 at 970. https://doi.org/10.60082/2817-5069.2761
81 Doris Rajan, "Justice Denied", Iris Institute (February 19, 2021), online: https://irisinstitute.ca/wp-content/uploads/sites/2/2021/02/2021-02-24-Info-Sheet-Justice-Project.pdf.
82 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27, 2022 SCC 27 (S.C.C.) (Factum of Mental Health Legal Committee at para. 8; Factum of Empowerment Council at para. 25).
83 Statistics Canada, "Experiences of violent victimization among persons with mental health-related disabilities in Canada" (January 26, 2022), online: https://www150.statcan.gc.ca/n1/daily-quotidien/220126/dq220126b-eng.htm. Statistics Canada, "Persons with mental health-related disabilities: Experiences of violent victimization in Canada, 2018" (January 26, 2022), online: https://www150.statcan.gc.ca/n1/en/catalogue/11-627-M2022005.
84 Helgi Maki & Tess Sheldon, "Trauma-Informed Strategies in Public Interest Litigation: Avoiding Unintended Consequences Through Integrative Legal Perspectives" (2019) 90 S.C.L.R. (2d) 65.
85 Law Commission of Ontario, "Legal Capacity, Decision-making and Guardianship: Final Report" (Toronto: March 2017), online: https://www.lco-cdo.org/wp-content/uploads/2017/03/CG-Final-Report-EN-online.pdf at 33.
86 Chris Chapman & A.J. Withers, A Violent History of Benevolence (Toronto: University of Toronto Press, 2019) at 360: "Those whose work includes helping others may need to be very careful that they don't imagine themselves as selfless, independent saviour outsiders." https://doi.org/10.3138/9781442625082
87 British Columbia (Attorney General) v. Council of Canadians with Disabilities, [2022] S.C.J. No. 27 at para. 1, 2022 SCC 27 (S.C.C.).
88 Joshua Sealy-Harrington, "Access to (In)justice: A critical race reflection" (March 24, 2021), online: Law360 https://www.law360.ca/articles/25551/access-to-in-justice-a-criticalrace-reflection-joshua-sealy-harrington.
89 Daniel Del Gobbo, "Queer Dispute Resolution" (2019) 20 Cardozo J. Conflict Resolution 283 at 291.
90 James Livingston, "Mental Illness-Related Structural Stigma: The Downward Spiral of Systemic Exclusion Final Report" (Mental Health Commission of Canada, 2013): "There is also reason to believe that criminal justice professionals, such as police, judges, and correctional officers routinely endorse negative stereotypes about people with mental illnesses (i.e., that mental illness alone is a significant risk factor for violent and criminal behaviour), which then affects policy and practice."
91 Geri Sjoquist, "Bias Towards the Disabled" (February 2, 2022), online: American Bar Association https://www.americanbar.org/groups/family_law/publications/family-advocate/2022/winter/bias-towards-disabled/.
92 Andreas Fischer-Lescano, "From Strategic Litigation to Juridical Action" (2021) 6 Transnational Leg. Activism in Global Value Chains 299 at 301: "Strategic litigation . . . seldom questions the system in which it participates, frequently abstains from partisanship in favour of those affected, and often fails to articulate the injustice of the social order." https://doi.org/10.1007/978-3-030-73835-8_15
93 Sins Invalid, "What is Disability Justice?" (June 16, 2020), online: https://www.sinsinvalid.org/news-1/2020/6/16/what-is-disability-justice: "The political strategy of the Disability Rights Movement relied on litigation and the establishment of a disability bureaucratic sector at the expense of developing a broad-based popular movement . . . Rights-based strategies often address the symptoms of inequity but not the root."
94 Jay Dolmage, Disability Rhetoric (New York: Syracuse University Press, 2017) at 70. https://doi.org/10.4324/9781315453217-4
95 Kristin Bennett & Mark Hannah, "Transforming the Rights-Based Encounter: Disability Rights, Disability Justice, and the Ethics of Access" (2022) 36:3 J. Bus. & Technical Communication 326 at 342. https://doi.org/10.1177/10506519221087960
96 Natalie Chin, "Centering Disability Justice" (2021) 71 Syracuse L. Rev. 683.
97 Archibald Kaiser, "Canadian Mental Health Law: the Slow Process of Redirecting the Ship of State" (2009) 17 Health L.J. 139 at 143: "The typical mental health statute evinces almost complete silence on human rights protections, equality rights and discrimination, health promotion, crisis prevention and positive rights to supports and services. . ."
98 Tess Sheldon, "Entangling Liberty and Equality: Critical Disability Studies, Law and Resisting Psychiatric Detention" (2023) Dalhousie L.J. Working Paper.
99 See Community Legal Assistance Society, "Operating in Darkness: BC's Mental Health Act Detention System" (November 29, 2017), online: clasbc.net/operating-in-darknessbcs-mental-health-act-detention-system/.
