Re: Matter of E.L.K. & Application for Warrant s.28(3) Mental Health Act, 2023 BCPC 172

Citation: Re: Matter of E.L.K. & Application for Warrant s.28(3) Mental Health Act 2023 BCPC 172 Date: 20230720 File No: 27448-1 Registry: Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF E.L.K. AND AN APPLICATION FOR A WARRANT UNDER SECTION 28(3) OF THE MENTAL HEALTH ACT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE N. PREOVOLOS Appearing on her own behalf (July 12 and 13, 2023): J.R. Appearing on behalf of J.R. (July 20, 2023): K.B. Places of Hearing: Kamloops, North Vancouver and Salmon Arm , B.C. Dates of Hearing: July 12 and13, 2023 Date of Judgment: July 20, 2023

INTRODUCTION [1] For over 25 years, E.L.K. has been living on a rural property at [omitted for publication], British Columbia. She lives with two ofher children, ages 24 and 18, under austere conditions. She exhibits signs of severe paranoia and shuns the outside world.

To block theview of her front yard and house from the street and to prevent anyone from observing the front of her house by looking over the fence,she has set up bedsheets adorned with crosses on the perimeter of her property. [2] Following a recent report to the RCMP by E.L.K.’s eldest son, W.K., who expressed concern about his mother’s mental healthand the well-being of his two adult siblings, the RCMP attended at her residence and contacted Interior Health’s Community CrisisResponse Team.

Neither the RCMP nor the Community Crisis Response Team was able to make contact with her or anyone else on theproperty. [3] Based on the information provided to her by the police, J.R., a registered psychiatric nurse employed as a crisis response nursewith Interior Health, is applying under s. 28(3) of the Mental Health Act (the “MHA”) for a warrant to apprehend E.L.K. and have herexamined at a provincial mental health facility.

ISSUE [4] The main issue in this application is whether E.L.K. requires care, supervision and control in or through a designated facility toprevent her substantial mental or physical deterioration, for her protection or for the protection of others.

FRAMEWORK FOR MHA WARRANT APPLICATIONS [5] Any person may apply under s. 28(3) of the MHA for a warrant to apprehend someone and have them examined at a “designatedfacility”, which is defined in s.1 as a “Provincial mental health facility, psychiatric unit or observation unit.” Applications are made byfiling an “Application for Warrant” on Form 9 under the MHA, and are typically made by a family member without notice to the personto be apprehended. Moreover, the applicant is typically not a medical professional or represented by legal counsel.

In this case, althougha crisis response nurse made the application, she did not examine or interview the person to be apprehended, and the impetus for theapplication was a report made by a family member to the police. [6] Sometimes these applications are granted by desk order based on the affidavit that forms part of the application, and other timesthe Court holds a hearing and requires the applicant or other witnesses to testify. Although these applications are not uncommon, I havenot been able to find a single published judgment on a warrant application or a judicial review of a warrant.

This is not entirely surprisingbecause of the short-term nature of an apprehension under s. 28(4). [7] Legal proceedings to challenge a warrant under s. 28(4) are likely to be moot by the time they are brought, as the warrant doesnot authorize a person’s detention for more than 48 hours. Further detention requires completion of medical certificates by physicians,which is subject to review by the Mental Health Review Board under a formal process prescribed by the MHA. Disputing the initialapprehension under s. 28(4) therefore becomes moot: see McCorkell v. Director of Riverview Hospital, (BC SC),[1993] B.C.J.

No. 1518, 81 B.C.L.R. (2d) 273 (BCSC) at para 18 [McCorkell] for the problem of mootness in mental health detentions. [8] Section 28(4) of the MHA allows the Court to issue a warrant if the applicant has “reasonable grounds to believe” that ss. 22(3)(a)(ii) and (

c) of the MHA describe the condition of the person to be apprehended, and if s. 22 of the MHA cannot be used to admit theperson involuntarily to a designated facility without reasonable delay. [9] “Reasonable grounds to believe” are not defined in the MHA. For the purpose of s. 28(4) of the MHA, which treads on theliberty and autonomy of the individual, I consider the meaning of the phrase in criminal law appropriate. In R. v.

Fong, 2023 BCCA 196at para 21, “reasonable grounds” were recently described as follows: The reasonable grounds standard requires something more than reasonable suspicion, but something less than proof on a balance ofprobabilities. The appropriate standard is one of reasonable or credibly-based probability. A reasonable belief exists when there areobjective grounds for the belief based on compelling and credible information: Beaver at para. 72(6); R. v. Tim, 2022 SCC 12 at paras.23-24; R. v.

Henareh, 2017 BCCA 7 at para. 38. [10] Section 22(3)(a)(ii) describes a “person with a mental disorder,” which is defined in s. 1 of the MHA as: [A] person who has a disorder of the mind that requires treatment and seriously impairs the person's ability (

a) to react appropriately to the person’s environment; or (

b) to associate with others [11] “Treatment” is defined in s. 1 as “safe and effective psychiatric treatment and includes any procedure necessarily related to theprovision of psychiatric treatment.” [12] Section 22(3)(

c) describes a person who: (

i) requires treatment in or through a designated facility; (ii) requires care, supervision and control in or through a designated facility to prevent the person’s substantial mental or physicaldeterioration or for the protection of the person or the protection of others; and (iii) cannot be suitably admitted as a voluntary patient.

[ 13 ]

Section 22 provides for involuntary admission of a person to a designated facility upon receipt of a medical certificate completed by a physician or a nurse practitioner who has examined the person not more than 14 days prior to admission. The certificate must attest to the matters in ss. 22(3)(a)(ii) and (

c) and include a

summary of the medical practitioner’s opinion. [ 14 ] In

summary, a warrant may be issued under s. 28(4) where: There are reasonable grounds to believe: 1. The person is a “person with a mental disorder,” defined in s. 1 of the MHA as person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability to react appropriately to the person’s environment or to associate with others; 2. The person requires treatment in or through a designated facility; 3.

The person requires care, supervision and control in or through a designated facility to prevent his or her substantial mental or physical deterioration or for the protection of the person or the protection of others; 4. The person cannot suitably be admitted as a voluntary patient; and it has been established on a balance of probabilities that: 5. The person cannot be involuntarily admitted under s. 22 of the MHA without unreasonable delay. EVIDENCE [ 15 ] During the hearing of the application, I asked J.R., Cst. N.A. and W.K. to testify. J.R. attended court by MS Teams, and W.K. and Cst.

N.A. attended by telephone. In addition, I have the affidavit sworn by J.R. as part of the Application for Warrant on Form 9. J.R.’s Evidence [ 16 ] For the most part, J.R.’s evidence was hearsay, as she did not speak to or meet with E.L.K. or attend at her residence. In her affidavit sworn July 12, 2023, she set out Cst. N.A.’s account of the evidence he obtained from W.K. In her testimony at the hearing, she repeated some of that evidence, including her understanding that W.K. “escaped” from E.L.K.’s property two years ago.

She expressed concern about her own safety if she has to deal with E.L.K. in person and mentioned that she had asked an Operations Manager with the Interior Health Authority to provide her with a Kevlar (bullet proof) vest, which he declined, if she has to go to E.L.K.’s property. [ 17 ] There were significant inconsistencies between the

summary of W.K.’s evidence in J.R.’s affidavit and the viva voce evidence of W.K. at the hearing.

Examples include the following: • J.R.’s affidavit states that W.K. “escaped his mothers (sic) home two years ago” whereas W.K. testified that he moved away with his mother’s blessing in 2015 after graduating from high school; • J.R.’s affidavit states that police reported “[E.L.K.] has firearms in the home,” whereas W.K. testified that his mother used to have firearms and he does not know whether she has any now; and • J.R.’s affidavit states that W.K. went to E.L.K.’s house to ensure his adult siblings are okay, whereas W.K. testified that the main reasons for his last visit were issues surrounding his paternity as well as a financial dispute with his mother. [ 18 ] I cite these inconsistencies not to criticize J.R. but to draw attention to the perils of hearsay evidence and the importance of calling critical witnesses to testify at mental health warrant hearings.

The viva voce evidence of W.K. puts a very different complexion on the case. Cst. N.A.’s Evidence [ 19 ] Cst. N.A. testified that he attended at E.L.K.’s property and was unable to make contact with anyone; however, he did observe the bedsheets that are set up on the perimeter of the property and confirmed that the property is closed off to visitors. He also confirmed that E.L.K. had a firearms possession and acquisition license that expired on April 17, 2019. W.K.’s Evidence [ 20 ] W.K. is 26 years old and E.L.K.’s eldest son.

He was born in [omitted for publication], B.C., and raised on the property where E.L.K. currently lives. E.L.K. raised W.K. with his two younger siblings, now 24 and 18 years old, and home-schooled all three from kindergarten to Grade 12. [ 21 ] When W.K. graduated from high school in 2015, he left the province for the summer to work on the ranch of a family friend and returned to British Columbia to study full time at [omitted for publication] College and live on campus. He did both with the blessing of E.L.K.

In May 2016, at the end of his first year of studies, E.L.K. persuaded him to live at home for the summer in a cabin on her property. After a falling out part way through the summer, W.K. lived in a tent on the property and returned to [omitted for publication] in the fall to resume his studies and live on campus again. [ 22 ] Since the summer of 2016, W.K. has not lived with E.L.K. and only visited her and his siblings four times.

The first visit was in the spring of 2017 when he went to the property to say goodbye before leaving for [omitted for publication], British Columbia, where he would be working in forestry. In July 2019, he was in the Kootenays for a “religious revival” event and stopped by to visit. W.K. spent the night at the house and left the next day. [ 23 ] Things seemed more dilapidated and E.L.K. was “fairly paranoid.” He had to climb over the fence to access the property and submit to a body pat down because E.L.K. was worried he might be there to “take her out” on behalf of one of her enemies.

W.K. says that E.L.K. has a long list of enemies that includes ex-partners and neighbours. She is also fearful of identity theft.

[ 24 ] E.L.K. is particularly worried about drug dealers because she has reported her neighbours to the police for drug dealing and believes she is a target because she knows how they operate. To W.K.’s knowledge, nothing has ever come of E.L.K.’s allegations of drug dealing. [ 25 ] On March 18, 2023, W.K. visited again. This time he had a specific purpose in mind. He had recently discovered from a DNA ancestry service that his biological father is not the man his mother told him it was.

Remarkably, W.K. used fireworks to try to get E.L.K.’s attention when he arrived, and eventually jumped over the fence when she did not come out. E.L.K. thought the fireworks were gunshots but did not respond with violence or force. She was “standoffish” and denied W.K.’s paternity allegations, claiming that the man whom W.K. now believes is his father wants W.K.’s body for “spare parts” for his children. [ 26 ] In total, W.K. spent about four hours on the property before leaving.

He noticed that there were no animals, whereas in 2019 there had been livestock such as chickens, sheep and goats as well as several cats. On occasion, E.L.K. even kept a cow. When asked what happened to the animals, E.L.K. told him she had to get rid of them because people were coming onto the property and molesting them. [ 27 ] W.K.’s last visit was on April 16, 2023. He wanted to speak to E.L.K. about an agreement he had made with her to buy her property and about his real father.

He stood outside in the rain at the edge of the property for about five hours trying to speak to her but made no progress on the issues he came to discuss. She refused to honour the agreement though she had received $20,000 from him as a down payment. She said horrible things to him, repeating, in his view, her pattern of eventually alienating everyone in her life. [ 28 ] W.K. recalls his mother being moderately religious when he was very young. In 2008, she was briefly affiliated with the Seventh Day Adventist Church, but cut ties and never joined another denomination.

In W.K.’s view, she has become progressively more “radical” in her religious beliefs. W.K. says that between 2010 and 2012, his mother started claiming that God was speaking to her and telling her to do certain things. As early as 2012, she told W.K. that she could hear footsteps coming from upstairs and that it was the Devil coming to take their souls. [ 29 ] Between 2015 and 2017, when B.C. Hydro workers came to the property to install smart meters, E.L.K. refused service and the power was cut off.

She used to source water from a well on her property but stopped doing that out of fear that neighbours were poisoning the well. Her property backs onto a river, so she meets her water needs by hauling water by the bucket from the river, and she heats her house by burning wood. [ 30 ] W.K. testified that E.L.K. had firearms on her property when he was growing up but he does not know whether she has them anymore (W.K. told Cst.

N.A. that she had a 30-06 rife, a .22 calibre rifle, a 12-gauge shotgun, and an assault style BB rifle). [ 31 ] Until W.K. was five years old, the family had a doctor, and after that the only contact E.L.K. had with medical professionals was for the birth of her two younger children. To W.K.’s knowledge, E.L.K. has never received a psychiatric diagnosis. [ 32 ] E.L.K. is rarely seen leaving her property, and neighbours have reported to W.K. that on occasion they have seen her and her two children leaving her property wearing Halloween style animal masks.

W.K. describes E.L.K.’s mental condition as “not good” and says she has “deteriorated a lot.” ANALYSIS 1. Are there reasonable grounds to believe E.L.K. is a “person with a mental disorder”? [ 33 ] The evidence of E.L.K.’s longstanding paranoia and delusions establishes reasonable grounds to believe that she is a “person with a mental disorder.” [ 34 ]

Section 1 of the MHA defines a “person with a mental disorder” as a “person who has a disorder of the mind that requires treatment and seriously impairs the person's ability to react appropriately to the person’s environment or to associate with others.” “Treatment” is defined in s. 1 as “safe and effective psychiatric treatment and includes any procedure necessarily related to the provision of psychiatric treatment.” [ 35 ] E.L.K. is therefore a “person with a mental disorder” if: (

a) she suffers from a “disorder of the mind” (not defined in the MHA ); (

b) the “disorder of the mind” requires treatment; and (

c) the “disorder of the mind” seriously impairs her ability to react appropriately to her environment or to associate with others. (

a) E.L.K. suffers from a “disorder of the mind” [ 36 ] W.K.’s evidence of E.L.K.’s paranoia and delusions and Cst.

N.A.’s evidence of the bedsheets on the perimeter of her property constitute reasonable grounds to believe that E.L.K. suffers from a “disorder of the mind.” [ 37 ] W.K.’s evidence includes the following: • Between 2010 and 2012, E.L.K. claimed that God was speaking to her and telling her to do certain things; • As early as 2012, E.L.K. told W.K. that she could hear footsteps upstairs and that it was the Devil coming to take their souls; • E.L.K. preferred to have the electricity cut off between 2015 and 2017 than allow BC Hydro employees to install smart meters; since then she has lived without electricity;

• E.L.K. stopped drawing water from the well on her property some time ago out of fear that her neighbours were poisoning the well, and started hauling water by the bucket from the river running behind her property; • E.L.K. believes various people, including ex-partners and neighbours, are her enemies and out to get her; • When W.K. visited E.L.K. in 2016, E.L.K. subjected him to a “pat down” search to make sure he was not there to “take her out” on behalf of one of her enemies; • E.L.K. stopped keeping livestock sometime between 2019 and 2023 because of her belief that people were entering her property and molesting the animals; • E.L.K. is rarely seen leaving her property, and neighbours have reported to W.K. that on occasion they have seen her and her two children leaving her property wearing Halloween style animal masks; • When W.K. confronted E.L.K. earlier this year with evidence that she lied to him about who his father is, she told him that the man he believes is his father was lying to him because he needed him as a source of spare body parts for his children; and • W.K. believes that E.L.K.’s mental health is “not good” and has “deteriorated a lot” since 2019. (

b) The “disorder of the mind” requires treatment [ 38 ] In A.T. v. British Columbia (Mental Health Review Board) , 2023 BCCA 283 at paras 46 , 47 and 49, the Court of Appeal recently found that the words “requires treatment”’ refer to the disorder – more particularly, whether the disorder is one that requires (psychiatric) treatment as defined in s. 1.

The intention is to limit the application of the MHA to individuals who suffer from disorders of the mind that can be treated psychiatrically. [ 39 ] Whatever disorder of the mind E.L.K. has, I find there are reasonable grounds to believe that it “requires treatment,” that is, psychiatric treatment. There is no evidence that the cause of E.L.K.’s disorder of the mind is non-psychiatric, such as traumatic brain injury or stroke. In the absence of any other explanation for E.L.K.’s disorder of the mind, there are reasonable grounds to believe that psychiatric treatment is required. (

c) The “disorder of the mind” seriously impairs her ability to react appropriately to her environment or to associate with others [ 40 ] E.L.K.’s paranoia and delusions are preventing her from interacting normally with anyone outside her household. She has had the electricity cut off to her property, disposed of her livestock, stopped using well water, and hidden herself behind bedsheets on her property because of paranoia and delusions. If this were a conscious choice born out of a preference for a monastic existence, there would be no issue.

But the evidence of the connection between E.L.K.’s paranoia and delusions and the life she leads, gives rise to reasonable grounds to believe that a disorder of the mind is severely impairing her ability to react appropriately to her environment or to associate with others. 2.

Are there reasonable grounds to believe that E.L.K. requires treatment in or through a designated facility and cannot be suitably admitted as a voluntary patient, and has it been proven, on a balance of probabilities, that E.L.K. cannot be admitted involuntarily under s. 22 of the MHA without unreasonable delay? [ 41 ] Whether E.L.K. requires treatment in or through a designated facility, cannot be suitably admitted as a voluntary patient or cannot be admitted involuntarily under s. 22 of the MHA without unreasonable delay, depends on her willingness to accept treatment or submit to an examination. [ 42 ] Treatment in or through a designated facility is “required” if it must be administered involuntary, and admission as a voluntary patient requires the patient to admit herself.

Involuntary admission under s. 22 does not require the person to admit herself, but requires her to facilitate an examination by a medical doctor or a nurse practitioner who can issue the required medical certificate for involuntary admission. [ 43 ] The evidence before me establishes reasonable grounds to believe that E.L.K. does not consider herself mentally ill or in need of psychiatric treatment – an all too common feature of mental illness that makes involuntary treatment necessary – and would not agree to be assessed, treated or voluntarily admitted. [ 44 ] The requirement that E.L.K. cannot be admitted involuntarily under s. 22 without reasonable delay must be proven on a balance of probabilities because the “reasonable grounds to believe” standard is prescribed by s. 28(4) only with respect to the criteria in ss. 22(3) (a)(ii) and (c).

The balance of probabilities standard otherwise applies to proceedings under the MHA : Huang v. Vancouver General Hospital , 2019 BCSC 874 at para 40 . [ 45 ] I am satisfied on a balance of probabilities that E.L.K. cannot be brought before a medical doctor or a nurse practitioner without unreasonable delay for examination and, if appropriate, preparation of the required certificate for involuntary admission under s. 22. 3.

Does E.L.K. require care, supervision and control in or through a designated facility to prevent her substantial mental or physical deterioration or for her protection or the protection of others? [ 46 ] I have no evidence that E.L.K.’s living conditions are materially different today than they were several years ago. There is no evidence that she is unkempt, malnourished or suffering from untreated medical problems despite her austere living conditions.

In short, there is insufficient evidence to form reasonable grounds to believe that care, supervision or control in or through a designated facility are needed to prevent E.L.K.’s substantial physical deterioration. [ 47 ] Similarly, there is insufficient evidence to establish reasonable grounds to believe that care, supervision or control in or through a

designated facility are needed to prevent E.L.K.’s substantial mental deterioration. Although W.K. testified that E.L.K.’s mentalcondition was “not good” and had “deteriorated a lot” since 2019, he has had limited contact with her since 2019 – four visits in total.E.L.K. is a 63 year old woman whose behaviour has been highly abnormal for at least 10 years.

As early as 2010, E.L.K. told W.K. thatGod was telling her to do certain things, as early as 2012 she told W.K. that she was hearing footsteps upstairs and that it was the Devilcoming to take their souls, and by 2015 the perimeter of her property was more or less in the same state as it is today with bedsheetsshielding it from outside view. [48] There is no evidence of specific, recent behaviours to suggest that her mental health is materially worse now than it was before orthat it is likely to deteriorate substantially if she does not receive treatment.

In short, reasonable grounds to believe that care, supervisionor control in or through a designated facility are needed to prevent E.L.K.’s substantial mental deterioration do not exist. [49] The real question is whether E.L.K.’s care, supervision and control in or through a designated facility are required for herprotection or the protection of others.

Unfortunately, the need for protection is not defined in s. 22(3)(c)(ii) of the MHA. [50] In McCorkell at paras 48 and 49, Donald J. (as he then was) grappled with the meaning of substantially the same language in theMHA in 1993: “care, supervision and control in a Provincial mental health facility for his own protection or for the protection of others.”In the result, the involuntary committal scheme survived a challenge under the Charter of Rights and Freedoms [Charter] based onvagueness and overbreadth, and was not found to violate the principles of fundamental justice under s. 7 of the Charter. [51] In his decision, Donald J. referred to the purpose of the MHA, which the Court of Appeal recently cited with approval in A.T. atpara 69: In McCorkell v.

Riverview Hospital (Director), (BC SC), [1993] B.C.J. No. 1518 (S.C.) at para. 51, Donald J., as hethen was, said: “[t]he purpose of the [Act] is manifestly plain: the treatment of the mentally disordered who need protection and care in aprovincial psychiatric hospital”. While the appellant argues, to some degree correctly, that aspects of the language used in McCorkellmight today be considered inappropriate, that observation does not undermine the substance of what was said. Justice Donald’s statementwas cited with approval in Mullins v. Levy, 2009 BCCA 6 at para.106. In E.M.E v.

D.A.W., 2003 BCSC 1878, the court said that one ofthe purposes of the Act “is to ensure appropriate care is available to persons who are unable, due to a disorder of the mind, to function ata minimally effective level in the community”: at para. 27. [52] McCorkell at para 34 reviewed the history of mental health legislation and three specific models of involuntary committal: needfor treatment, modified need for treatment, and dangerousness or bodily harm.

On one end of the spectrum, the “need for treatment”model permits involuntary admission if it is necessary for a person’s “own protection or welfare or for the protection of others”: seeHoskins v. Hislop (1981), (BC SC), 121 D.L.R. (3d) 337 (BCSC) for a review of the involuntary committal criteria in1980.

On the other end of the spectrum, an apprehension under the “bodily harm” or “dangerousness” model requires a risk of bodilyharm to someone. [53] The process for involuntary admission under s. 28(3) pursuant to an application by any person or under s. 22(1) pursuant to thefiling of medical certificates by medical practitioners, falls under the “modified treatment” model.

In contrast, the warrantlessapprehension by police under s. 28(1) falls under the “bodily harm” or “dangerousness” model, as it requires the police to be satisfiedthat the person to be apprehended is “acting in a manner likely to endanger that person’s own safety or the safety of others.” [54] The “modified treatment” model is a compromise between the strict, civil liberties-oriented “bodily harm” model and thepaternalistic, “need for treatment” model.

McCorkell at para 66 found that the involuntary committal regime passed constitutional musterbecause it struck a reasonable balance between the rights of the individual to be free from restraint by the state and society's obligation tohelp and protect the mentally ill. Further, McCorkell at para 52 found that differences in

interpretation of the language did not prove thewords were incapable of guiding legal debate. [55] Donald J. at paras 57 and 58 referred to similar legislation in Manitoba that survived Charter challenge: I agree with Mr. Groberman’s argument that the Manitoba criteria bears a close similarity to the British Columbia standard. In theManitoba legislation, “serious harm” is not qualified; it can include harms that relate to the social, family, vocational or financial life ofthe patient as well as to the patient’s physical condition.

The operative word in the British Columbia Act is “protection” whichnecessarily involves the notion of harm. The Shorter Oxford English Dictionary defines “protection” as “... defence from harm, danger,or evil.” The Manitoba cases dealt initially with a statute that had no criteria at all, then with an amended statute with criteria remarkablylike British Columbia's Act which passed a Charter examination. [56] Interestingly, in referring to McCorkell in JH v.

Alberta Health Services, 2019 ABQB 540 at para 204, the Alberta Court ofQueen’s Bench suggested that McCorkell might have been decided differently today because of changes in the law on vagueness andoverbreadth. In Alberta, due to the failure of the legislation to define or qualify the term “harm” and to link the harm requirement to aneed for treatment in a psychiatric facility, the legislation was declared invalid, and the Alberta Court of Appeal affirmed the decision:see JH v. Alberta (Minister of Justice and Solicitor General), 2020 ABCA 317.

The language in the Alberta criteria includes “likely tocause harm to the person or others.” Here in British Columbia, the vagueness or overbreadth of the criteria are a matter for another dayand another court. [57] For my purposes, I keep in mind that the move away from the dangerousness or bodily harm standard was deliberate, and that themodified need for treatment standard requires a careful balancing of competing interests. As a starting point, the standard clearly includesprotecting E.L.K. and others from serious bodily harm or death.

In that respect, there is no evidence that E.L.K. has ever inflicted seriousbodily harm on herself or anyone else. Nor is there any evidence that she has threatened to do so. To date, evidence of her behaviourdoes not suggest that she will act out violently against anyone. In fact, when W.K. recently startled her with fireworks to get her attention– causing her to believe the sounds were gunshots – she did not respond with violence. [58] As noted in McCorkell, however, “protection” implies more than protection from bodily harm.

Yet I cannot point to any harmthat E.L.K. will personally suffer if she is not treated. Will she squander her savings during an episode of mania? Will she suffer the loss

of income earning capacity? I cannot think of any “harm” that she will suffer apart from the day-to-day hardship of her austere existence, and I do not think that constitutes the type of harm the MHA contemplates. [ 59 ] Finally, there is the question of protecting others – in particular, her two adult children, 24 and 18 years old. W.K. implies that E.L.K. might be keeping them with her against their will or that they are suffering from a form of Stockholm syndrome.

The main evidence in support of that belief is E.L.K.’s refusal to let W.K. and his siblings have a moment in private, and E.L.K. supposedly never letting his siblings out of her sight. W.K.’s siblings were willing to speak to him but chose not to come out from behind the bedsheets at the fence of the property. Does this mean they are being forced to stay there? W.K. left the property of his own volition years ago and has come and gone several times since, including after spending one summer there. He also testified that his brother “ran away” several times as a minor.

In the circumstances, the evidence does not establish reasonable grounds to believe that the two adult children or anyone else requires protection from E.L.K. DECISION [ 60 ] E.L.K.’s behaviour is unsettling and unconventional, and there is strong evidence that she is suffering from paranoia and delusions. However, the balance struck by the MHA between the autonomy of the individual and society's obligation to help and protect the mentally ill requires considerably more than a treatable disorder of the mind to permit apprehension under an MHA warrant.

That threshold has not been crossed here. [ 61 ] Accordingly, the application for a warrant is dismissed. _____________________________ The Honourable Judge N. Preovolos Provincial Court of British Columbia