“The best people possess a feeling for beauty, the courage to take risks, the discipline to tell the truth, the capacity for sacrifice.”

~ Ernest Hemingway

Monday, April 7, 2014

Stuttering as a Disability

UPDATE: Apparently we now have some US lawyers agreeing that yes, yes indeed, stuttering can indeed be a disability under the terms of the American with Disabilities Act (ADA). Good to know. 

What says you? Is stuttering a disability? And, if so, should it be "legally protected"?

It seems to me that this should have a fairly easy common sense answer. And if it doesn't, it should.

Of course, stuttering is a disability from a legal point of view.
Section 10 (1) of the Code defines “disability” as follows:
“because of disability” means for the reason that the person has or has had, or is believed to have or have had,
  1. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
But I think worrying about a potential "widespread backlash against all persons with disabilities" is a bit of fear mongering an over-reaction. Why?

All you need do is check out the comments at the end of the article to find a very common sense response.
Of course it's a disability, but not one that should ever override a common sense BFOQ. [Ed. I believe that is meant to read BFOR - "bona fide occupational requirement**.] But if a person is denied a position they could handle because a stutter "isn't pretty" then that's discrimination. 

** We've discussed this very same issue many years ago and although I didn't use the commonly-accepted terminology at the time, this is exactly what I was talking about. 

Duty to accommodate meet bona fide occupational requirements.
The duty to accommodate can include things like altering the physical workplace, redefining a job description or altering the work schedule. If a driver's license is a job requirement, for example, and the interviewee doesn't have one, there is a duty on the employer to enquire why, to see if a disability is behind it ie) epilepsy. In which case the employer would have to consider what alternations he might make so that driving would not be necessary or whether he could change the job description to give the driving portion to another employee.

And it's important to realize that it would be a lot harder to accommodate certain disabilities in some jobs than in others. For example, is it possible to accommodate a blind person who seeks to be an editor? In all honesty, even with technology, I don't know. Maybe it is, maybe it isn't.

What about a person in a wheelchair, with no use of her arms or legs, who dreams of being a firefigher? There might be some job back at the fire station that she could conceivably perform but it would be a little hard to picture her actually out there fighting a fire, wouldn't it?

Wednesday, April 2, 2014

Whazzup With That Roadmap, Anyhow?

Everybody needs a hero, right? I think I may have found (one) of mine.
This guy right here. He impresses me.

Why, you ask?

Because, in the midst of all his other work, he has written repeatedly on some very important issues for the disability community. And he's not showing any signs of letting it go. You have to like that.

And that raises a very important question - what is up with the Department of Community Services Transition Roadmap (aka The Roadmap)?
The report, written by a joint group of civil servants and representatives of community organizations, calls for the phasing out of large institutions, a more individualized approach in terms of care and funding, and altogether a new emphasis on changing services to better accommodate people with disabilities.
The short answer ... Hell if I know.

The sad reality is that the best information I have comes from Robert's article. Much like Sgt. Schultz, I see nothing, I hear nothing, I know nothing.

But fear not, for others know much, much more than I. Let's see what Robert has to say:
At the time the department, right in the introduction to the report committed to "implementing these recommendations over a five-year time frame, with major action steps for each of the ten recommendations being plotted over 2013-14 through 2017-18."
.  .  .
That was September of last year.

Now it appears things are moving ahead, but not at the pace that the report suggested.

Of the thirty or so action steps scheduled for the previous fiscal year 2013-14, not one has been completed. But work has started on all of them, Elizabeth MacDonald, departmental spokesperson, tells the Halifax Media Co-op.

Stakeholder provincial advisory groups, which according to the report should have been in place by now, have not yet been announced.
 Guess who else apparently knows something? Wendy Lill.
Wendy Lill, playwright and former Member of Parliament, has been advocating on behalf of people with intellectual disabilities for a very long time. She was co-chair of the team that helped shape the transition roadmap.

Just two weeks ago she attended a roadmap progress update for stakeholders organized by Community Services. That was also the first update provided by the department since the roadmap was launched seven months ago.

"After that meeting I am hopeful that there is some real movement happening and that there is good faith there," Lill tells the Halifax Media Co-op.
Apparently, we are to hear more about a series of pilot projects "in the spring" [wait, isn't that, like, now?] and the membership of advisory groups will be revealed some time after March 31st [so, again, that would be, like, any time now, right?]. But not just that - "a training program" for "care coordinators and service delivery people" is on the way. Thank God for that. Just, please, don't ask me what it means - I'm not entirely sure.

But, hey, know what I do (think I) know? Politics. I can talk politics. Let's try that.

The Roadmap was originally brought forward by the NDP government. The very same NDP government that a lot of people, myself included, were pretty frustrated with. We were frustrated because we expected CHANGE with our first NDP government, real CHANGE. And we didn't get it, or, at least not as fast as we wanted. It was that very frustration that caused played a large part in the NDP's defeat in the last election.

So now we have a new government. A Liberal government. And I have to wonder if people will be as hard on them, expect as much change as quickly from them, as they did our last government. Because, if so, I am pretty sure we will have another epic fail.

In the words of Wendy Lill:
"Things are dreadful now, [the Department is] spending a lot of money and they are getting very poor results," says Lill. "Strong arguments have been made that [the new way] can be sustainable, and they have leadership that is mounting that argument in a very strong way."
Yeah, they are. And how much (and how fast), if at all, that changes will be up me you and me. That's right, you. And you. And you. And me.

And that takes me back to why I am so grateful for Robert Devet's continued writing on these subjects, for his efforts to hold our government accountable for what was promised. But that you and you and you and I can do half as good of a job in that regard.

Tuesday, April 1, 2014

For What It's Worth

I'm not sure exactly what to make of this but ...
March 25, 2014) BOYNECLARKE LLP, one of Atlantic Canada’s largest law firms, will be offering free legal consultations over a three-day period in celebration of Law Day 2014
On April 8, 9 and 10, BOYNECLARKE LLP will be inviting pre-approved applicants to their office in Dartmouth for a free legal consultation. The initiative, spearheaded by Partner Gordon F. Proudfoot QC, is intended to give residents in the HRM access to justice. 
“Law Day is all about making sure everyone understands the law, has access to justice and can have their legal questions answered,” says Gordon. “This is our first year with the project, so we’re hoping to see lots of people during the three days.” 
Over 25 lawyers at the firm have volunteered their services to meet with approved applicants and discuss their legal issues in various areas of law. 
“Community service is one of things we try to make a priority here at BOYNECLARKE,” adds Gordon. “This is a way for us to give back.” 
Applications can be obtained online or by calling 1 902 460 3444.
So go on. Get out there. Get out pre-approved.

What do you have to lose?

Friday, March 14, 2014

[Almost] Street Legal

Posted on Facebook on March 6, 2014 
Lawyers need trust accounts.  
But according to the bank, in order to have a trust account, you need a business account first.  
And to have a business account you need to have registered a business name. [check
But before you can register a business name, you have to have the name approved [check
So, two out of four ain't bad for one week.

And I have a date with the banker on Monday to open the business account.

The name, you ask? Oh, that's easy.

MMC Legal Services

Of course.  

Cross-posted on Free Falling

Wednesday, March 12, 2014

New Legislation for Persons with Disabilities ~ It's Time to Have Your Say

Listen up, people.

Personally, I believe that Nova Scotia could well be a tipping point at this moment when it comes to services for persons with disabilities. We could go one way (towards truly individualized funding and real community inclusion.) or we could just stick with the status quo.

Which would you prefer?

As the province looks at bringing forward new legislation the ipro bono student group at Dalhousie Law School has taken the initiative of reviewing legislation in other provinces and elsewhere regarding services for persons with disabilities, the

They're anxious to engage as many people as possible in their project. And since you have a vested interest in the outcome, your opinion matters.

Here is a short survey (honest, it really is short) that touches on a lot of important points, some of which will really make you stop and think.

Please take a few minutes to complete it. If you like, they will send you the results, which will be included in their final report.

One other request - please share this survey widely - this legislation will affect a large number of people who are not often consulted. Indeed, the number of responses is itself a part of the message.

Wednesday, February 12, 2014

Differences Don't Matter

After that heavy duty look at the criminal law, I thought it might be nice to take a step back and look at things from a different angle.

The following poem was written by Jessica Mercola many years ago as part of a diversity contest at her middle school. I found in in an issue of Exceptional Parent magazine back in 2002.

While she wrote about a "she", the sibling in her poem is actually a "he", her younger brother, who is 6 years old, has hypotonic cerebral palsy and profound developmental delay, is non-verbal and non-ambulatory and has the most gorgeous smile and eyes of anyone! [according to Mom and who are we to argue?]
I have brown hair.
She has blond hair. 
I have long hair.
She has short hair.
I am chubby and short.
She is skinny and tall.
I have braces and glasses.
She has freckles and cerebral palsy. 
I can draw, ride a bike and read.
She can't do any of these. 
I can walk and sit.
She has a wheelchair,
and tries to talk
but out comes noises,
silly ones. 
I like to chew.
She likes to go for long walks. 
I am stubborn and loud.
She is sensitive and caring. 
I am outgoing and fun.
She is different and interesting. 
I go to dance.
She goes to therapy. 
I drink from a cup and eat regular food.
She drinks from a bottle and eats pureed food. 
I like to play outside.
She likes to play with noisy toys. 
She doesn't make any choices.
We make them all for her.
I think I have a good life.
Hers could be better. 
Every day I watch her grow,
in sorrow, laughter and snow. 
I hope no one takes her away.
I would be lonely and miss her every day. 
I start every day with the positive
attitude that one day she'll be
just like me! 
I don't care what we are.
I love her anyway. 
I don't care what other people say.
We'll always be sisters and
the best of friends.
That's the way it's going to stay.
Cross-posted at Free Falling

Sunday, February 9, 2014

Pertinent and Timely Questions in Criminal Law (The Wrap Up) ~ Part III

UPDATE: Thoughts from some of those in the trenches (the president of the NSGEU and a retired community mental health worker) on these sorts of situations: 
Both Jessome and Reece agree that people with diminished capacity should not face criminal charges for their actions. They say there are alternative ways to address their behaviors. 
“No matter what the disability is, consequences can be put in place so people understand that this is not an acceptable behavior,” said Jessome. 
“Employers need to minimize the risk, and they don’t do a good job at it. 
“There are a lot of people who don’t stay in the profession where they work with people with disabilities because they can’t get the safety issues death with.”

I received the following comment on this post regarding Anna Marie Tremoni's interview with Nichele Benn and her mother on CBC's The Current:
The problem is that community services has too many individuals to care for, and too many of these cases fall between the cracks of mental health or community services. However, if you were to look into the history of these clients, you cannot just blame bi-polar for the reason for the Amanda Murphy assault charges. Have there been many assualts done by this woman?I'm guessing yes. And her family.. How long has she been apart from them? I'm guessing they haven't been able to manage her for years and she's probably been in and out of instutitions and group homes. You are right, more policies do need to come into play for housing. However, letting serious offences be pushed under the rug by saying she is either cognitively delayed and/or has a serious mental illness is not solving the problem.
After I finished shaking my head, I asked myself what, in particular, it was that some people just aren't getting. The answer, of course, was obvious - well to me, anyway. They're missing the fact that (on at least one level) this isn't about bipolar or epilepsy or any other such condition. It's about developmental age.

But before we go there, let's back up for a second; back up and try to wrap up this trilogy on individuals with special needs and the law.

There are various places where I, personally, believe the criminal justice system could be doing a far better job when it comes to individuals with special needs. One, in particular ( a pet peeve of mine, if you will) is in how it treats complainants with special needs.

In particular, I am referring to the "hate propaganda" provisions of the Criminal Code, which create an offence for "advocating or promoting genocide", defined as certain stipulated acts "committed with intent to destroy in whole or in part any identifiable group". As you will recall, although the term "iidentifiable group" includes any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, there is mo mention of disability. The same is true with respect to the provisions of the Code concerning the promotion of hatred.

A similar pet peeve of mine is how the criminal law takes absolutely no notice of a complainant's intellectual or developmental age when it comes to luring an individual to engage in sexual activity. We protect our "children", of course; but anyone over the age of 18 years is fair game, no matter their developmental age.

And yet when it comes to the Nichele Benns and Amanda Murphys of the world, I must admit that I did not initially see these situations as a problem with the criminal justice system, per se. My reasoning being that since such cases should not be brought within 1000 yards of the criminal justice system in the first place, there should be no problem.

If the rest of the "system" (read, in this case, the Departments of Community Services and Health) was working properly, charges would never have been laid in these situations. The only *fault* I initially saw with our criminal law system was that prosecutors were exercising their discretion to lay charges in cases where a completely different decision should have been made.

At least that was the way I saw it until I read about Amanda Murphy's most recent court appearance. It was this paragraph in this story that caused light to dawn on this particular marble head.
“I’m not sure,” Gerald MacDonald, Murphy’s lawyer, said when asked after her appearance if there is a precedent stating that someone has to be dealt with by the court system according to their chronological age rather than their mental one.
That, you see, was a brilliant question asked of Mr. MacDonald. That is *the* question that needs to be asked and answered properly in these cases. And I say "properly" because if the answer happens to be that there is no such precedent, than it is long past time to create one.

The discerning reader will have noted that this very issue of whether or not there is any precedent for dealing with an accused according to their chronological age rather than their mental age is the very same difficulty we faced in pet peeve #2, above, where no recognition is given to a complainant's developmental age, even if the defendant is well aware of it.

All of which made me realize that a significant problem we face with Canada's criminal justice system is that it does not appear to offer any recognition of an adult's developmental age; not with respect to
  1. the effect it has on an accused's ability to formulate the mens rea necessary to be found guilty of committing most crimes (including both assault and assault with a weapon);
  2. the public policy issue of whether we should morally be prosecuting individuals who would not be subject to the criminal law if their developmental age matched their chronological age; and
  3. the public policy issue of why the criminal law fails to protect individuals it would otherwise protect if their developmental age matched their chronological age.
Perhaps as an aside (perhaps not), those last two points are almost enough to make a person question if our criminal justice system is guilty of discrimination, if it violates some of those very "fundamental rights and freedoms" that Canada's Constitution vows to protect. How ironic that would be.

But that, my dear friends, take us back to that anonymous commenter - the person who, much like our criminal justice system, apparently fails to see that (at least one of) the issue here is that Amanda and Nichele have developmental ages of children.

Of course this isn't the only thing this person fails to understand.

Sunday, January 26, 2014

Disability and the Justice System: A First Hand Experience

Trying to wrap your head around how well the criminal justice system deals with persons with disabilities?

"I will go wherever is available, the first bed."

I can't recommend enough this first-hand account - hear Anna Marie Tremoni's interview with Nichele Benn and her mother on CBC's The Current earlier this week. It's one thing to watch the news stories on TV and hear Brenda tell her daughter's story but it's a very different experience to listen to this in-depth interview.

In fact, it's really too bad that some of the people commenting on this article hadn't heard the interview - perhaps they might have woken up and actually learned something.

It's heartbreaking. It's happening now. And it's not *just* Nicehle's reality.

It's good to know that Canada's Justice Minister, Peter MacKay, is "committed to keeping our streets and communities safe". And yet I can't help but wonder just who out there is committed to ensuring safety and justice, not just from individuals with disabilities, but also FOR them.

Wednesday, January 22, 2014

A Gift ... From Ken Pope

I have been meaning to pass this on for a little while now - a Gift that dropped in my inbox last week.  And it seemed the perfect Gift to REGIFT!

So here you go ... Happy (Belated) New Year!

A New Year's 

Resolution Booster

Jan 15th - Jan 31st  2014

I know how difficult resolutions can be. I know we
 say we will take the time to get our affairs in order...
we resolve to...and time slips away.
I would like to help you with that.

Here is a $200 gift. Please take 
this gift, take some time and schedule  an appointment. 
Let's resolve to finding solutions and creating Peace of Mind
All the Best for the New Year.
Ken Pope

Schedule Appointment Now!

For anyone who's not familiar with Mr. Pope ... let's just say you should be. You might recall that I've spoken about him on numerous occasions over the years. Please note that even though Mr. Pope is located in Ontario, he is licensed to practice across the country.

Kenneth C. Pope, Barrister and
Solicitor, started his practice in 1980,
in Ottawa, Ontario and travels nation
 wide to meet with clients and present 
seminars on Disabilities and Estate
Planning issues.

Ken is a Henson Trust specialist, 
helping provide peace of mind for 
families with a family member with 
disabilities or special needs.                

Saturday, January 18, 2014

Pertinent and Timely Questions in Criminal Law ~ Part II

Continuing our discussion from last week on how well the criminal justice system deals with individuals with special needs, we will now look at how criminal culpability is decided, the sentencing of individuals with special needs and what happens when the complainant is an individual with special needs. 

III.  Deciding Criminal Culpability
Under sec. 16 of the Criminal Code, a person will not be held criminally liable for any offence if they meet the defence of "mental disorder".

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. 

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

As when it comes to determining fitness to stand trial, defence lawyers, Crown lawyers and judges all have the power to seek a forensic psychiatric assessment if they think a mental disorder could have affected a person's actions when a crime was committed. The court will consider those assessments  before determining whether the person is criminally responsible for their actions.

Many people seem to think that this defence is only available to those who have a mental illness, but in reality it covers any type of recognized mental disorder, including, for example, autism and intellectual challenges. Also contrary to popular opinion, it is not an easy defence to meet. One must prove not only that they had a mental disorder at the time the offence was committed, but they must also satisfy the court that the disorder made it impossible for them to either

  • appreciate the nature of their actions in question or 
  • know that their actions were wrong.

Before changes made to the Criminal Code in 1992, courts had no discretion but to automatically detain in  custody persons found "not guilty by reason of insanity" (as it was once known) or unfit to stand trial on what was known as a 'lieutenant governor's warrant".

Changes made in 1992 to the Criminal Code (following the introduction of the Canadian Charter of Rights and Freedoms) eliminated the reference to "not guilty by reason of insanity" and replaced it with "not criminally responsible" (NCR). Also eliminated were the provisions concerning automatic "strict custody" and the role of the lieutenant governor.

Now, the court, itself, can either hold what is known as a "disposition hearing" or send the matter to the Criminal Code Review Board to hold a disposition hearing, following which the accused will be given an absolute discharge (meaning they are free to go), a conditional discharge (meaning they will live either in the community or a hospital subject to the conditions or restrictions set by the court of the Review Board) or be detained in custody in a hospital subject to conditions or restrictions.

The basic principle behind Section 16 of the Criminal Code of Canada dates back to a British ruling from 1800 in the case of James Hadfield. Hadfield had fired a gun at King George III and was found not guilty of attempted murder by reason of insanity. The chief justice, Lord Kenyon, felt that prison wasn't the place for Hadfield but also considered that it would be wrong to return him to the community

Kenyon wrote:"The prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the king upon the throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature.

"But for the sake of the community, undoubtedly, he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him ... for the present, we can only remand him to the confinement he came from."

Hadfield was held in a psychiatric hospital for the rest of his life.

IV.  Sentencing An Individual with Special Needs

In the US, given that the death penalty has been taken off the table for defendants with an intellectual disability, the question now before that country's Supreme Court is how states should decide if someone convicted of a crime actually has an intellectual disability.

We are told that mental health professionals define an intellectual disability as a "substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or “street smarts,” and evidence of the condition before age 18". Some states use this definition; however, others are much more arbitrary - such as Florida, where if you have an IQ over 70, you’re eligible for execution regardless of intellectual function or adaptive behavior.

Here in Canada, the death penalty, thankfully, is not on the table. However, when it comes to sentencing persons with disabilities for their crimes, one glaring discrepancy does come to mind. Although Canadian sentencing laws recognize that some categories of people in society are different than others (namely Aboriginals and youth), there is no special recognition given to persons with disabilities.

A. Aboriginal Sentencing
Section 718.2(e) of the Criminal Code addresses Aboriginal sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances. An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non-Aboriginal offenders.

One reason why the Criminal Code treats Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. For example, in 1997, Aboriginal people constituted close to 3 percent of the population of Canada, yet amounted to 12 percent of all federal inmates.

.  .  . 

B. Youth Sentencing
The Youth Criminal Justice Act provides the legislative framework for Canada’s youth justice system. It includes a separate sentencing regime because the needs and situations of youth are different from those of adults.
Which might lead one to conclude that in the eyes of Canadian criminal law, no matter the type or severity of a defendant's disability, his or her circumstances are no different than anyone else's.

Wednesday, January 15, 2014

Holding Their Feet to the Fire

There was an excellent interview with Archie Kiaser regarding Nichele Benn's situation on the Global Morning Show today. Unfortunately, no matter what I do, I simply cannot embed it. So I'm afraid that you'll just have to follow the link. Go ahead. I will wait for you.

As Archie so rightly points out, the criminal justice is simply not geared to deal with people with mental illness and intellectual disabilities. In his words, it's all about "judging and punishing" and, in this case, that's not going to do Nichele or society any good.

In my words, shame on the Department of Community Services, Quest Regional Rehabilitation Centre and the Crown prosecutor involved for creating this situation in the first place.

Think about it - the comparison of Nichele's situation to that of Ashley Smith isn't that far off the mark, is it? Is this what Nova Scotia will become known for? Will/Can we allow this to continue?

There is obviously much more to be said (and done) on this subject, but I'm afraid I must leave you for now - Part II on the Criminal Justice System simply isn't going to write itself, is it?