Authorities – breaking the letter & spirit of the law

February 14, 2022 – EXPLAINER

In a previous Explainer, we reviewed several of the laws intended to protect the rights of citizens from abuse by the state: BC laws – what you need to know to protect yourself and your assets. In this Explainer, we review the fundamental principles that Island Health and the RCMP, and their agents, are expected to consistently follow. This is not based on opinion; we cite the explicit principles spelled out within the legislation, as well as reinforced in judicial decisions. — Editor

An oft quoted maxim encourages compliance with “both the letter and the spirit” of the law.

Some of the weaknesses in the laws that protect people from abuse by the state and others have been egregiously demonstrated by Island Health, aided by the RCMP, in their mistreatment of both Eileen and Trevor Wicks, as recently reported by Second Opinion QB. See RCMP squad enters BC condo without legal authority, apprehends couple in their 70s

Adult Guardianship Act

Let’s start with the B.C. Adult Guardianship Act, which Island Health social worker Sarah Jarvinen claims gave them (we are still trying to figure out who is ultimately accountable for that decision) the authority to abduct Eileen Wicks from her home without warning and without explanation and without her lifelong partner and personal Representative.

Is it really the intent of the Adult Guardianship Act to enable this kind of draconian intervention? Not according to this Guiding Principle (section 2): “This Act is to be administered and interpreted in accordance with the following principle: All adults are entitled to live in the manner they wish and to accept or refuse support, assistance or protection as long as they do not harm others and they are capable of making decisions about those matters.”

Ignorance of the law is no excuse. Nor is ignorance of the directives regarding consent to care contained in a Representation Agreement.

Island Health, in non-compliance with this basic Guiding Principle, has attempted to claim an exception for Eileen Wicks by suggesting (without an actual person coming out of the shadows and presenting proof, i.e. evidence) that she was an “abused or neglected adult, and unable to seek support and assistance,” thus legitimizing their abusive interventions under AGA section 59.

However, Island Health and the RCMP seem to have overlooked section 45 which sets the boundaries for the entire Part 3 of the Act (support and assistance for abused or neglected adults): “This Part [3] does not prevent an adult’s representative or guardian from refusing health care for the adult in accordance with the wishes the adult expressed while capable, even if the refusal will result in the adult’s death.

That may shock some people – but it is the law – and the law has been broken in the Wicks case, by the authorities. Everyone from Island Health VP James Hanson down to his frontline social workers are expected to know and respect this law.

Just to underscore the point, AGA section 45 also states as plainly as can be: “This part [3] does not override the rights in section 4 of the Health Care (Consent) and Care Facility (Admission) Act,” which states, again in no uncertain terms, that:

“Every adult who is capable of giving or refusing consent to health care has: the right to give consent or to refuse consent on any grounds, including moral or religious grounds, even if the refusal will result in death; the right to select a particular form of available health care on any grounds, including moral or religious grounds; the right to revoke consent; the right to expect that a decision to give, refuse or revoke consent will be respected; and, the right to be involved to the greatest degree possible in all case planning and decision making.”

And these rights extend to the adult’s chosen Representative under the terms of their Representation Agreement. Another oft quoted maxim: Ignorance of the law is no excuse. Nor is ignorance of the directives regarding consent to care contained in a Representation Agreement.

Island Health and its agents are obliged to determine if a person has a Representation Agreement (RA), and, if they do have an RA, to comply with the consent directives expressed in the RA — BEFORE proceeding with any non-emergent intervention. In the Wicks’ case, Island Health appears to have done neither.

Our Constitutional shield

These three BC laws (Guardianship, Representation, Consent) have too many inconsistencies and contradictions, as well as too much opportunity for abuse by authorities like Island Health through arbitrary, subjective, non-transparent interpretation of some of the dodgy parts of the laws.

But we hope that the reader can discern the common edict underpinning all BC laws – respect for the individual. This is not some made-in-BC government benevolence. This obligation to respect each individual is enshrined in the Canadian Charter of Rights and Freedoms.

Our own BC Supreme Court is empowered to rule on Charter violations, as we showed in our previous article when Madame Justice Warren, with clear reasons, ruled that multiple Charter rights of a vulnerable adult were violated by the Fraser Health Authority. [2019 BCSC 227]

Of particular application to British Columbia’s laws governing the RCMP’s and Island Health’s conduct are the following fundamental Charter rights:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [7]

Everyone has the right not to be arbitrarily detained or imprisoned. [9]

Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. [10]”

Compliance with the law

Some laws are well-constructed and fit for purpose; some are not. Most actors with authority over vulnerable people (i.e. all of us) are conscientious, law-abiding, caring individuals. Some aren’t. Unfortunately, some so-called “caring” professions seem to attract bullies like the priesthood attracts pedophiles.

The public is thus continually at risk of being harmed by bad actors, regardless of the strength, clarity and rigour of the laws under which these actors are obliged to behave. It remains vitally important that light be shone on misconduct, accountability be asserted, and every effort be made to prevent recurrence.

Our next issue will feature an Explainer about the many so-called “watchdog” and oversight bodies and agencies in British Columbia that the public is led to believe exist to protect the public from abuse of authority or address misconduct when it occurs, but whose efforts produce a multitude of reports, findings and recommendations, but little in the way of actual accountability or improvement.