"If you are successful, it is because somewhere, sometime, someone gave you a life or an idea that started you in the right direction. Remember also that you are indebted to life until you help some less fortunate person, just as you were helped."

~ Melinda Gates

Saturday, November 21, 2015

No Need to Panic ...

Just a quick note to let you know that, for many of you, there's no need to panic about the upcoming changes to the Income Tax Act concerning trusts and how they are taxed. Some of you might be aware that in 2016, the graduated taxation rate for testamentary trusts (meaning trusts created by a Will) will be replaced with a top marginal tax rate.

The bottom line relevance of this for us is that the way the world currently works is that when money is placed in a Henson Trust (aka an absolute discretionary trust), the income from that inheritance is taxed at a beginning (lower) marginal tax rate. This is a special stipulation that only applies to trusts created by a Will (testamentary trusts).

This is all about to change in 2016, however; when testamentary trusts will be taxed in the same way all other trusts are - meaning that they will be taxed at the top marginal tax rate. When you think about the inheritance you are leaving a challenged family member, you really don't want to see that eaten away by the trust being taxed at the highest taxation rate. After all, who needs that money more - the federal government or your family member?

But the reason I say that there is no need for most of us to panic is that the government has included a special exemption which states that if the beneficiary of the trust (your challenged family member, for example) qualifies for the Disability Tax Credit ("DTC"), the trust can be approved as a Qualifying Disability Trust and, as such, will continue to be taxed at beginning marginal rates, just as it is now.

There are a few more catches, of course, such as, for example, the fact that an individual can only have one Qualifying Disability Trust, which could result in some unexpected consequences if, for example, more than one family member leaves the person an inheritance in their Will. Please, always remember to check with your accountant or tax adviser, for information specific to your particular situation.

Moving past that, regular readers will recall that I have preached before as to the importance of the DTC,as that not only does it provide a nice tax break for the individual or their family, but the DTC is the very same tax credit that allows an individual to qualify for a RDSP. The math there is pretty simple ...


Going back to the rules around the taxation of trust, it's important to realize, that the mere fact that your child (or other family member) qualifies for assistance through the Province's Services for Persons with Disabilities Disability Supports Program does not mean they automatically qualify for the DTC - and, even if they do qualify, it's highly unlikely that any government official is going to come along and suggest you apply for it.

In order to qualify for the DTC, the federal government must find that the person is "markedly restricted" in the activities of daily living. The wording of this requirement seems to be continually evolving, but trust me when I say that it is always worth the effort (and re-effort, should you be turned down) for a person to apply (and appeal and/or reapply, as necessary) for the DTC, as it has the potential to open many doors, as we've just seen with these new changes to the taxation of trust.

So what are you waiting for?

Monday, October 19, 2015

CanuckKabuk Law

As I've noted before, although all kinds of links to all kinds of interesting information be found in the  sidebar, I have never had an official  blogroll at A Primer on Special Needs and the Law - the main reason being that there are very few Canadian legal-disability blogs out there, or at least very few that I'm aware of.

But today I came across "Kabuk Law" (no, I have absolutely no clue where that name came from although I can tell you that they bill themselves as "the first interactive platform for seeking legal advice in North America, enabling consumers to source desired providers and book appointments online" and there is an interesting little story behind how the site came to be) that appears worthy of sharing.

This is the link to their blog, where some interesting articles in their own right can be found. This will take you to their main page.

So what's it all about, you ask?

Basically it's a CANADIAN site that attempts to connect the public (meaning people like you. And you. And yes, you too) with lawyers. Pardon my excitement, but finding truly Canadian sites like this is indeed rare.

So check them out. Even if you're not in need of legal services at the moment, it's never hurts to be a Boy Girl Scout and be prepared. Check out their blog, too; as I said, there looks to be some very interesting stuff there, including a link to a survey asking people about their experiences looking for legal advice or (gasp) even an actual lawyer.

It would appear that they actually want to make getting legal advice easier, right here in Canada. Who would have thunk it, eh?

Sunday, October 18, 2015

Disabling Poverty, Enabling Citizenship – Canada's Federal Parties Have Their Say

We all know we should need to vote, but sometimes we wonder why we bother. And yet if the democratic process can be this frustrating to typical Canadians, it is often all the more so when it comes to individuals with disabilities and their family members, particularly since it so often seems that most of the issues that more important to us are not even on any government radar.

Operating on the theory that knowledge is power, I am passing along a Media Release from the Canadian Council on Disabilities that came to my attention today. I realize it's getting a little close to the line to question your Parliamentary Hopefuls, but if you want to know where the different political parties stand on issues of particular relevance to the disability community, read on.
The Council of Canadians with Disabilities (CCD) a national organization working for an inclusive and accessible Canada, sought commitments from Canada's major political parties on initiatives focused on disabling poverty and enabling citizenship.
  • Poverty alleviation (CCD identified a refundable Disability Tax Credit as a first step) and increased employment opportunities; 
  • Convention on the Rights of Persons with Disabilities and ratification of its Optional Protocol, and;
  •  Accessibility measures (such as a Canadians with Disabilities Act, enforceable access regulations for transportation and other areas in Federal jurisdiction, improved palliative care and other services, support for capacity building for the
    disability community)

Wednesday, September 16, 2015

Legal News - Short But Sweet

For some reason, a phrase my Mom used to use, "a lick and a promise", seems to come to mind a lot lately. I am particularly fond of it when it comes to dusting, which truly seems to be a *chore* for me.

At any rate, today I give you the legal equivalent of a lick and a promise.

Although touted for family law litigants, this new workbook [the link will also be added to the sidebar under the "Helpful Links In General" heading] now available for self-represented parties in the Province looks like it might well prove at least somewhat useful  for all self-represented litigants, no matter the legal issue.

On another positive note, a free legal clinic is being launched this week at the Halifax Law Courts.
Beginning on September 17, people who want to resolve their legal problems in court will have access to free legal advice and information at the Halifax Law Courts (Upper Water Street). The “Free Legal Clinic” will open its doors.

One morning each week, self-represented litigants will have an opportunity to meet with a volunteer lawyer and a volunteer law student in private. During the 60-minute sessions, they will offer litigants basic advice and guidance to help them through their anticipated court appearances in the Supreme Court or the Court of Appeal.

The Clinic is not “needs-based”, meaning that a person’s income has nothing to do with whether or not they qualify for the free service.

The sessions will be held by appointment only. The advice and information offered is limited to civil law cases before the Supreme Court and Court of Appeal and to family law cases (except child protection matters) before the Court of Appeal. ...

[Click on the link to learn more, as they say.]
All in all, a good step forward, I should think.
Let's hope it's a sign of more good things to come.

*Until we meet again, mes amis.*

Monday, August 3, 2015

How Do You Know When You're on the Right Track?

"We all have a destiny, a dharma to fulfill, and there are endless opportunities, people and circumstances that surface throughout  lives to illuminate our paths."
~ Dr. Wayne W. Dyer
First, I have a confession to make - I love quotes. I collect them in fact. That's right, 56 pages of quotes in a Word document. But enough about that, I want to talk about this particular quote.

I would like to believe those words above are true, you see. It's not that I believe in fate to the exclusion of free will; no, not at all. I see it much more like opportunities opening up in your life, windows if you will. Little windows of destiny, perhaps, as you make your way through your life.

Always a choice.

Even though my father had been in a wheelchair from the time I was born and I had two severely challenged older sisters (who had been institutionalized before I was born); even though during my last year of Law School, I was diagnosed with a chronic medical condition ... despite all that, before my oldest daughter was born, I had always naively thought that persons with disabilities were taken care of. The whole social contract thing at work and all that; society doing it's part to help those who were not as capable of helping themselves.

My perfect little baby girl was 13 months old when she had her first seizure. The first of many, many, many seizures - I gave up counting after a while. As if these clusters of up to 100 seizures over the course of a week was not bad enough, we discovered that after each bout of seizures, she had regressed, lost some of the skills she had previously developed.

In fact, after her second bout of seizures, which occurred when she was 19 months, she lost all her words except for mama and baby, could no longer climb stairs and had "forgotten" how to play with her toys. She was still interested in her toys; it was just that she no longer knew what to do with them. For every toy that she picked up, you had to take it gently from her and show her how to use it, what it did. After you did this a few times with the same toy, it seemed to start to come back to her.

Although I had no clue at the time and despite my own childhood and family experiences, that was my first real introduction to the world of disability. That was the beginning of a journey that I know so many of you have taken. We each may have traveled our own paths, but our experiences are so similar in so many ways.

It's funny, though, I never really picked up and focused on my daughter's developmental delay until she was around 4 years old. I was at a support group (probably one of the last occasions where I sat through a meeting just listening, taking it all in without much to say) for parents whose children had epilepsy and my child was the youngest in the group; all the other children were in school. The discussion that night turned, of course, to school and the challenges these children and their families faced in that system. Up until that point, there had been so much of focus on the medical side of stopping my daughter's seizures that our family hadn't really paid much attention to her challenges. This is hard to explain - she was taking speech therapy and in early intervention at the time. so obviously we recognized these issues but ... they simply had never been the focus. The seizures were the problem, we believed. Stop the seizures and all will be well.

Well, the rest, as they say, is history.

Tuesday, July 21, 2015

Nova Scotia's First Family Demonstration Project

I'm not sure why I have put off posting about this for so long. It definitely wasn't intentional - perhaps just a by-product of how busy my life seems to have become between going back to practice and what I am about to share.

Show of hands, please ... how many of you remember the NDP government's Roadmap for transforming Nova Scotia's Services for Persons with Disabilities Program (as it was then known)? Sure you do, remember the election campaign when all three parties endorsed the Roadmap and promised to implement it?

Now before you say anything, I must admit that I, too, was very cynical had my doubts - after all, how many times have the names of the Programs been changed? And how many times has government commissioned reports, conducted studies and, above all else, promised to change things ... all with no real or meaningful results?

So it was with great surprise (and maybe a little trepidation) that two other families and mine accepted the Department's offer last summer to turn our Transition House Project* into one of the long-awaited pilot projects for the Roadmap.

It took almost nine months to get here but I am pleased to say that my oldest daughter is one of the participants in the Province's first Family Demonstration Projects.

She has two roommates - not individuals imposed upon her (or she upon them), but two young adults that that she has grown up with and who share similar interests. Two good friends.

I must say that they have a VERY nice home. Trust me when I tell you that most of us would have killed to have our very first place out on own as nice as theirs.

But most important of all, our young adult children have the funding required to engage the support people ("house buddies" as we call them) needed so they can successfully live in their own home in the community.

Let's be clear here. This is most definitely not just enough group or small options home in disguise - we, the families (in our particular situation) decide what is needed to ensure that this will be successful for our young adult children. We, the families, are calling the shots - not the government or some residential service provider.

However, as usual, the devil is always in the details. In that vein I have some bad news and some good news for you.

The bad news is that the process, itself, of getting from the idea dream to reality was long and more than a little painful, for both sides. The good news is now that two different groups of families have successfully negotiated with the government and have committed to being in the Family Demonstration Project and one group is successfully up and running, the process for you and your family should be much, much smoother.

What's this all mean, you ask?

To put it simply ... here it is. The time has finally come. What is your dream for the ideal living situation for yourself or your family member? The time is here, people. It can and is, in fact, being done.

Full disclosure - it's a lot of work for the families to take on, there is no denying that. The Department tells us that Third Party Administrator Funding** (meaning that a third party would actually be responsible for handling the all the day-to-day tasks in making sure the financial end of things runs smoothly) won't be available for another two or three years. That leaves us, the families, to take on all aspects of managing and administrating the home, at least for the time being.

But trust me when I say that this is huge - huge for my daughter, for her roommates and for my and their families. But, most important of all, this has the potential to be huge for all persons with intellectual disabilities and their families in this Province.

Break out the band. Pop the champagne corks. We already have.

* Most definitely a story for another day.

** The Roadmap calls for participants or their families (as the case may be) to have the option of either managing the funding themselves or having a third party (I believe the plan is to redefine the roles of the current residential service providers to include acting as Third Party Funding Administrators) manage the funding. [See pp. iv, 23, 25 and 44 at the link.]

Tuesday, June 30, 2015

Guardianhip - A Middle Ground

I am pleased to say that one of the things returning to the practice of law has done is open up a lot more options for how I can be of benefit to the disability community. There is one particular option in this regard that I would like to highlight today.

If you've been reading this blawg for very long, then you are no doubt quite familiar with the Nova Scotia Legal Guardianship Kit.

The great thing about the Kit is that it gives families who have decided that guardianship is the best choice for their loved one the opportunity to obtain that peace of mind without incurring the high costs traditionally involved with retaining a lawyer. And it gives me a very good feeling to know that that option has been opened up to families for whom finances might otherwise be a barrier.

However, I realize that many continue to struggle with taking that plunge into the legal world, with taking on the commitment of preparing their own documents and appearing in court on their own without the services of a lawyer. I am happy to say that there is now another option I can offer for families in such a position.

In addition to the "either/or" options of retaining a lawyer or bringing a guardianship application on your own, I can now offer you a third option. In fact, some families have already successfully taken advantage of this third option. It combines the very best of the previous options in that allows you to save a significant amount of money while still having the services of a lawyer in reserve, so to speak, to use only as and if you need them.

What I am talking about is purchasing the NS Legal Guardianship Kit, doing the costly time and labour-intensive work of preparing the documents yourself (with the assistance of the Kit) and then hiring me on what we call a "limited scope representation", meaning using (and paying for) my services only if and when you feel you need them.

For some families that has meant preparing the documents themselves, but then having me review them before they are filed so they can walk into court confident that they have provided all the information the court requires to understand why guardianship is in the best interests of their family member.

For others, it might mean having me appear in court upon their behalf after they have completed the required paperwork.

And then there are those that fear that they might run into a few questions or concerns along the way as they are preparing the documents and need someone to run such potential issues by.

The beauty of this option is that the possibilities of just how much legal assistance (and in what areas and combinations) a family might require to complement the NS Legal Guardianship Kit are practically endless. It truly is individualized service, individualized to the particular needs of your family.

Perhaps it's time to coin a new acronym. ILS - Individualized Legal Services.

Tuesday, June 9, 2015

To Disclose or Not Disclose - Human Rights in the Workplace

I recently listened to an audiotape of a panel presentation entitled "Learning to Accommodate: A Step-By-Step Guide to Accommodating Employees with Learning and Intellectual Disabilities".

All in all, it was good and useful presentation - the Panel consisted of a former member of the CACL, a psychologist who specialized in learning disabilities, a law professor who specialized in labour and human rights issues and two lawyers - one who worked mostly for employers and one whom brought forward court cases on behalf of employees.

They did their best to represent all sides of the issue ... or should I say issues, given that it dealt with both employees with intellectual challenges and those with learning disabilities, two very different situations.

I have posted a couple of times on the issue of human rights in the workplace back in 2008 - 2009, but we haven't looked at the issue since. Before we go on, you might want to go back and read those old posts, just to give you a sense of how the human rights issue are dealt with in an employment context.

The one thing that struck me about this recent prensentation and that I wanted to share with you is the issue of whether an employee is obligated to disclose their disability to an employer, either in the hiring process or as a hired employee. I don't believe I touched on this issue back in 2008-2009 and that's too bad because it really is a very important dilemna that many employees and job-seekers face.

As we discussed previously, pursuant to both the Nova Scotia Human Rights Act and the Canadian Human Rights Act, employers are obligated to "accommodate" an employee with a disability. You can read more of exactly what this duty of accommodation requires an employer to do (and not to) here.* But the question for us today is this: How can an employer be expected to accommodate an employee if it is kept in the dark as to the employee's disabilities?

Sure, some disabilities are obvious to the naked eye but many are invisible. And even in those situations where the disability (and accommodations required) are obvious, can we automatically assume that means that all of the employee's needs will always be completely obvious?

In the situation in this video, the employer's discriminaiton is pretty blatant. The woman is in a wheelchair. The drafting table and the material on the shelves are too high for her to reach. It isn't rocket science (or, at least, it shouldn't be). But what if a physically challenged employee is also dealing with other issues that are not so obvious, such as fatigue or depression that effect their employment needs?

The bottom line is this: How can an employer legitimately be expected (and legally required) to accommodate disabilities of which it is unaware?

An employer has a has a duty to investigate the availability of accommodation options only IF it knows or should know of the person's disability and the need for accommodation. If the employer is legitimately unaware of the disability, there simply is no duty to accommodate, although one might arise later IF the disability comes to the employer's attention.

The case law is replete with instances of failed human rights claims where the employer never disclosed any information that would lead the employer to think they had a disability; often, even in cases, where the employer noted difficulties and went out of its way to enquire what it could do or offer the employee to help them meet the demands of the job.

And, really, can we honestly say that it should be any other way? You simply can't be expected (or obligated) to accommodate a disability you are totally unaware of. That is only fair.

I do realize that for many individuals with disabilities the decision as to whether or not to disclose a disability (and the accommodations required) to an employer or potential employer is a very difficult one. There are many factors to consider.

Tuesday, May 12, 2015

Can Lii, Can Do

Based on the premises that something is better than nothing *, news from the National Self Represented Litigants Project Website:
The NSRLP is proud to launch our latest resource for [Self Represented Litigants] SRLs, NSRLP CanLII Primer V1
The Can Lll Primer: Legal Research Principles and CanLII Navigation for Self-Represented Litigants is the result of innumerable hours of research and drafting by NSRLP Research Assistant Tamara Thomas, who worked with Julie to develop the Primer. Tamara says this about what she learned from the experience, and what motivated her to spend so much time and passion on this project. 
“The CanLII Primer aims to help SRLs develop a basic understanding of how to operate CanLII in a straightforward and effective way. CanLII is a wonderful resource because it is open to anyone to use – no fees, no commitments – but it can also be frustrating to operate. Of course, I say that coming from the privileged position of having taken classes specifically on legal research and writing in law school… 
I realized fairly quickly into this process – and I got a really good appreciation of this as a result of creating the Primer – that the legal system is one created by and dependent upon inaccessible and unintuitive language, and trying to access and understand the legal research process without properly understanding that language throws up yet another barrier to SRLs. Writing the Primer required that I completely deconstruct everything that I knew in a way that we are not taught in law school. ...
Check it out.

* A reference to my blogging (or lack thereof), not the content of the post.

Monday, April 13, 2015

Time to Shake Things Up

UPDATE: It gives me great pleasure to advise that this complaint will get a hearing before a Board of Inquiry and the Disabiltiy Rights Coalition has been given standing to be added as a party. Kudos to all involved.

Anybody who has been reading here for any amount of time is quite familiar with my an ongoing love affair with the Dept. of Community Services (DCS). Don't believe me? Follow the link.

On that note, I was very pleased to (very) recently learn about the Human Rights Complaint that has been brought forward against the Services for Persons with Disabilities Disability Support program on behalf of three long-term residents of Emerald Hall.

As noted in Beth's story, Emerald Hall is intended to be an acute care in-patient unit serving clients who live with intellectual disabilities as well as complex mental and/or physical health issues. What Beth's story fails to mention is that Emerald Hall is designed to provide only temporary (up to three months) stabilization care for people who are living in the community.

Note this comment from Capital District Health's Capital District Mental Health Program Services page:
Emerald Hall supports adults living with a mental illness and developmental disability who are not able to live in the community either because of a lack of available resources or a need for intense support that is only available in hospital. Many of Emerald Hall’s current clients are long-term residents. As such its occupancy is almost always 100 per cent. However, crisis admission is sometimes available to registered clients.
(Emphasis added)
Long-term residents is one way to put in I guess - some of those "residents" have lived there for 13 years. That's right - 13 years. And that's not because it was considered medically necessary - these residents individuals have been medically discharged from the NS Hospital years ago but continue to reside there because DCS either can't or won't provide them with placement in the community.

"Sad situation, indeed", you say. "But what exactly does this have to do with my family?", you ask.

Good question. Deserves a good answer.

But before we get there, let me point out one more thing.  From the Chronicle Herald article:
A complaint over the province’s failure to provide supportive, community-based housing for people with disabilities has been accepted by the Nova Scotia Human Rights Commission.

“There has been an investigation and investigative report prepared,” Donna Franey, executive director of the Dalhousie Legal Aid Service, wrote in an email to the media late Friday.

“The report notes that ‘the existence of discrimination cannot be denied in this situation,’ yet the recommendation to the commission is dismissal of the complaint.”
Riddle me this, please. How is it even possible for a Human Rights Commission investigator to find that "the existence of discrimination cannot be denied in this situation", but then go on to recommend that the complaint be dismissed?

Is it just me or does that sound awfully strange to you too? Fortunately this story is far from over.

But back to you. And me. And your children. And mine.

This complaint, if successful, has the potential to shake up the SPD Disability Support program for all of us, in a very positive way. The crux of the case is the argument that the three complainants were discriminated against by being forced to stay in an institution, where they neither want nor need to be. That DCS discriminated against these individuals by providing assistance for people without disabilities, who are in need, to live in the community while failing for many, many years to take into account and accommodate their differing needs and offer supports for them to live in the community.

Can you imagine being forced to be live in a locked unit in a psychiatric hospital even though you neither wanted nor needed to stay in the hospital, let alone in a locked unit?

Can you imagine being unable to properly develop or receive an education, of being deprived of the chance to work, make and interact with friends and do any of the myriad of other things that you and I take for granted in the community?

How about being exposed to the problems of living in a psychiatric ward, including noise and the risk of violence on a daily basis?

Can you imagine your feelings if you were  repeatedly told that you would be found a home in the community but it never happened?

I can and it makes me shudder.

At this point, we can only hope and pray that reason and the rule of law will preside when the matter goes before the Commission for review and a decision is made on whether to dismiss the case or forward it to a board of inquiry.

Wednesday, April 8, 2015

'Here To Help'

As part of Nova Scotia Legal Aid's (NSLA) current Strategic Direction ("Here to Help'), a new website has been launched. The idea is that some level of help is now available to all Nova Scotians in core areas of Family, Criminal and Social Justice.

I was at a Pro Bono Symposium last week in which this was touched upon and a few interesting points were made:
  1. the income limit under which a family/individual must fall in order to qualify for Legal Aid has risen; and
  2. for those who would still not qualify financially, service may be provided if the person "makes a [financial] contribution towards the payment of the costs of the legal services rendered".
In addition, no matter your income level, NSLA Offices are now providing summary advice service in relation to issues in relation to Canada Pension Disability, Employment Insurance, Income Assistance and Residential Tenancies issues.

Although individuals can contact their local office to make application for such summary advice, "Clinics" are now being offered across the Province*, such as 
  •      walk-in clinics the third Friday of every month in Yarmouth with respect to Landlord/Tenant Disputes, Canada Pension Plan Applications and Appeals, Social Assistance Appeals, Housing & Low Income Housing or Grant Applications, and Employment Insurance Appeals. The initiative is aimed at giving advice to people in the Yarmouth coverage area who simply need a few questions answered with respect to a legal issue but cannot wait 3-4 weeks for an appointment;
  •      questions or problems with CPP Disability, Income Assistance, Employment Insurance, Housing Grants, Landlord/Tenant relationships and Child Protection matters can be answered at the Spryfield Legal Aid Office on the first, second and fourth Tuesdays of the month; 
  •     similar initiatives are being offered in Eastern Chebucto and Sydney; and
  •     the NSLA Youth Justice Office is providing youth social justice service (school/school board issues, Department of Community Services and youth ombudsman assistance, Protection of Property Act concerns, housing and income security or any area in which a youth thinks NSLA can help with information, advocacy or representation) in both Spryfield and at Chebucto Connections on the third Tuesday of every month. Importantly, there is no financial qualification for youth summary advice so anyone aged 12 to 18 is welcome to stop by. 
I highly recommend checking out the new NSLA website, including the "Communtiy Resources" tab. And, of course, lest we forget, Dalhousie also offers Legal Aid services. 

* More details on all these clinics (including times and how to confirm an appointment) can be found on the website. 

Sunday, March 8, 2015

'Spread the Word to End the Word'

Enough said.

Saturday, February 7, 2015

'My Life ... My Death' Controversy

Big news out of the Supreme Court of Canada yesterday - relevant for all of us, whether or not we currently have a disability.

I am speaking, of course, of the Supreme Court of Canada's decision striking down the law against assisted suicide in Canada. Or, at least, that's what the media would tell you happened.

Prior to yesterday, there were two sections of the Criminal Code, which, when combined together, banned assisted suicide.

Sec. 241 prohibited counseling, aiding or abetting anyone to commit suicide
Counselling or aiding suicide
241.Every one who aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years
and sec. 14 provided that no one can consent to having someone else end their life.
Consent to death
14. No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.
What the Court did was to strike down these two sections of the Criminal Code only to the extent that they prohibited physician-assisted suicide "for a competent adult person who
  1. clearly consents to the termination of life and 
  2. has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition". 
So, just to clarify, the law against assisted suicide still stands when it comes to you or I or Joe Blow down the street counseling, aiding or abetting someone (anyone) in committing suicide - this decision only applies to physician-assisted suicide, which fact was implied in some media coverage, but perhaps not clearly stated in all of it.

And, for just a bit more clarity (in case you missed this little tidbit in the ongoing roar), this declaration of invalidity was suspended for 12 months - what that means is all will continue as it was for the next year, giving the government the opportunity to attempt to craft a new law. Of course, the federal government could also decide to do nothing at all (after all, not deciding is a decision in and of itself, isn't it?) in which case, come February 5, 2015, physician-assisted suicide (but only under the circumstances set out above) will be legal in Canada.

In case anyone is wondering why the SCC would approve of physician-assisted suicide today when it didn't, ten years ago, when the case involving Sue Rodriguez was decided (which is a very good question, by the way), the Court explained this inconvenient little inconsistency away by stating that law relating to sec. 7 of the Charter (which protects an individual's right to "life, liberty and security of the person" and is the section of the Charter that the Court used to strike down the relevant Criminal Code sections) has "materially advanced" since the Rodriguez case was decided.

But back to the Carter decision; the Court found that, insofar as the Criminal Code prohibited physician‑assisted dying for competent adults who were suffering from a grievous and irremediable medical condition that caused enduring and intolerable suffering, it deprived these adults of their right to life, liberty and security of the person under s. 7 of the Charter. How you ask?

Well, the Court reasoned that the prohibition had the effect of forcing some of these people to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person (which deal with concerns about autonomy and quality of life), were also engaged as a person’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denied people in this situation the right to make decisions concerning their bodily integrity and medical care and by leaving them to endure intolerable suffering, it impinged on their security of the person.

Further, this infringement was done in a manner that was not in accordance with the principles of fundamental justice. The object of the prohibition was not to preserve life whatever the circumstances, but to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights were not deprived arbitrarily. However, the prohibition caught people outside the class of protected persons and the limitation on their rights was in at least some cases not connected to the objective, making the prohibition overbroad.

Looking at the question of whether the government was justified in violating these individuals' right under sec. 7, the Court went on to hold that although an absolute prohibition on physician‑assisted dying was rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, the evidence did not support the contention that a blanket prohibition was necessary in order to substantially meet that objective. The evidence from scientists, medical practitioners and others who are familiar with end‑of‑life decision‑making showed that a permissive regime with properly designed and administered safeguards would be capable of protecting vulnerable people from abuse and error. Vulnerability could be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decision capacity in the context of medical decision‑making more generally.

As an interesting aside, because the Court found that the prohibition on physician‑assisted dying violated s.7 of the Charter, it did not go on to consider whether it also deprived adults with physical disabilities of their right to equal treatment under s. 15 of the Charter. Any equality arguments around sec.15 of the Charter concerning this issue remain to be dealt with on another day.

And given that the Supreme Court of Canada is the highest court in the land, that, as they say, is that. Or is it?

Monday, February 2, 2015

'To Be or Not To Be'

To be, or not to be -- that is the question:
Whether 'tis nobler in the mind to simply ignore
The fact that I have seriously neglected this blawg
Or to take arms against a sea of never-ending "to do"s
And by opposing end them.

To work, to sleep--
No more--and by a sleep to say we end
The busyness, and the thousand things
That must be done in a day. 'Tis a consummation
Devoutly to be wished. To work, to sleep--

To sleep--perchance to dream: ay, there's the rub,
For in that weary sleep what dreams may come
When we have shuffled off to bed,
Must give us pause. There's the guilty, worried conscience
That makes calamity of so short a life.

For who would bear the whips and scorns of time,
Th' opponent's wrong, the judge's contumely
The pangs of lost time, the law's delay,
The insolence of teenagers, and the spurns
That patient merit of th' unworthy takes,
When she herself might her quietus make

With a mere laptop? Who would fardels bear,
To grunt and sweat through a busy life,
But that the dread of something left undone,
The misplaced file, the limitation period long past, from whose bourn
No lawyer returns, puzzles the will,
And makes us rather bear those ills we have
Than fly to others that we know not of?

Thus conscience does make exhausted cowards of us all,
And thus the hazy blue resolution of thy computer
Is sicklied o'er with the pale cast of thought,
And enterprise of great pitch and moment

With this regard their currents turn awry
And forgets all good intentions. -- Soft you now,
The fair blawg  -- A Primer on Special Needs and the Law, in thine readership 
Be all my sins forgiven.
But my humble attempt to express my ongoing regret and sadness over the current state of this fair blawg. And yet, on a fool's errand to ease my sorely troubled conscience, I have, alas, updated thine "Places To Be". But that it were enough ...

Fear not, for this humble blawg shall not depart this earthly realm; for now I can but bid you a sad adieu and wish you pleasant dreams as I whisper one last promise in thy ear --

I. Will. Be. Back.

~ With my deepest apologies to the Bard ~

Wednesday, December 10, 2014

Spoken Word Poetry

An emotional spoken word poem written by a father to his son.

Robb Scott wrote and performed this poem for his son who was born with Down Syndrome. The poem expresses how the R-word changed for Robb and how he hopes he son deals with hearing it as he grows up. The poem expresses how the R-word changed for Robb and how he hopes he son deals with hearing it as he grows up.