The Time Has Come To Talk Of Many Things ...

The topic of individuals with special needs and their interaction with the criminal justice system is not one that's been much discussed in this blawg. The reason being that criminal law is, in all honesty, not my forte. And I have always taken the view that when it comes to criminal law, you best really know what you're doing or else stay out of the field. Seeing as how there are serious consequences to be had, should you screw up.

However, that being said, there are a few issues related, but not limited, to the criminal justice system that I would like to discuss here.

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You might recall Mr. Mitchell's recent guest post concerning the right and ability of individuals with mental illness to represent themselves in court. Referencing a decision of the US Supreme Court in which an individual with schizophrenia was ultimately denied the right to represent himself on a charge of attempted murder due to the perceived risk that allowing the accused to represent himself could in fact undermine his own dignity, Mr. Mitchell found himself in agreement with a minority of the court.

A minority who would have granted the defendant's desire to represent himself on the basis that the fundamental principle must be that course which would allow the individual best to exercise his own autonomy which is what it was found the principles of individual equality truly rely on. “We could surely choose worse than "fulfillment of human dignity," they said.“

So, who got it right?

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In a similar vein, you might also recall the much-publicized ongoing trial of Glen Douglas Race, a New Brunswick man accused of murdering an American in New York State. Race, who has been diagnosed with schizophrenia, was recently denied his request to represent himself part-way through the trial. And although that diagnosis wasn't noted in the news reports as the reason for the court's refusal to honour Race's request, one has to wonder if it didn't play a part in the decision.

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Moving out of the criminal justice system, I found it interesting that the Canadian Association of Community Living (CACL) has characterized guardianship as "an ancient mechanism that was constructed without consulting people with disabilities" and takes the position that "supported decision-making" is not only preferable to guardianship, but given that "guardianship laws assume that some people do not have the capacity to make legally binding decisions" have invited us to "adopt a paradigm shift in which everyone has an equal legal capacity, without distinction based on disability."

Supported Decision-Making means a person may accept help in making decisions without relinquishing the right to make decisions. In supported decision-making, freedom of choice is never violated. Supported decision-making does not question the wisdom of a person’s choices but allows everyone the dignity of risk.

Supported Decision-Making helps a person to understand information and make decisions based on his or her own preferences. A person with a learning disability might need help with reading, or may need support in focusing attention to make a decision. A person who has no verbal communication might have a trusted family member who interprets their non-verbal communications, such as positive or negative physical reactions, or uses Alternative and Augmentative Communication.

Guardianship laws theoretically protect people with disabilities from abuse but in practice they open the door to abuse. Guardianship facilitates institutionalization; the guardian can easily give consent even when the person opposes being institutionalized. One decision by the authorities and a person loses the right to decide where to live, loses the right to vote, the right to choose who to marry, the right to start a business. This results in living in a humiliating and degrading way.

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What do these various subjects have in common?

To me, they both examine the question (albeit in different contexts) as to whether and how much it is acceptable for society to act to "protect" individuals with disabilities. And although not so many years ago, that would have been hailed by most as a lofty goal, it seems to have fallen into disrepute more recently. As if attempts to "protect" the disabled, much like we attempt to attempt to "protect" our children, is somehow insulting and degrading to them.

And yet, although the concept of protecting disabled person from both themselves and others, so to speak, will no doubt be quite off-putting to some, I have to think that it does have a valid place in certain contexts and certain circumstances. Admittedly, in an ideal world, such a thing might well be not necessary. But who amongst us will really argue that we live in an ideal world?

Whether we are considering a defendant's right to represent himself in court or when (if ever) a guardianship order might be appropriate, we are really talking about the same thing. Do we treat individuals with disabilities like everyone else? Do we accord them special 'privileges'? Or do we place special 'burdens' or 'restrictions' on them?

And more importantly, can those questions be answered, can all the above examples be analyzed in a logically consistent way? Or is better to proceed with a haphazard, whatever 'feels right' approach?

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Let me put it this way. It's 'peachy-keen' to opine that nobody should be subject to a guardianship order, to have their rights taken away in such a manner. Much better the route of "supporting" them as opposed to doing for or to them.

Just as it might give one a warm fuzzy feeling to state that every challenged person accused of some crime should be able to represent him or herself if they so choose. Perhaps we can "support" their legal advocacy in some shape or form? Just one thing, please, let me know when you figure out what that latter might look like.

Here's the problem. What might sound good ... nay, feel good, as an approach must always be tested against real world conditions. In this case, we're talking about the reality of the legal system. Which is, at the moment, as it is. Not as we might wish it to be in some idealized world.

And in the real world, people over the age of majority, who are considered competent are free to handle their own affairs as they see fit. To enter into contracts (in which they consent to having binding legal obligations placed upon them). To spend their money as they see fit. And they also have certain responsibiltities, like ensuring they have a decent place to live and food to eat, just as a start. And that they "keep their part of the bargain" and be responsible for their part of any contracts they enter into.

Consider the person with disabilities in this world.

How feasible is it to "support" their decision-making every step of the way? How agreeable might that person be to having someone else "suggest" how they might spend their money so as to be responsible? And exactly who is it that will be on the hook if the individual with disabilities enters into a contract in which he is unable to keep his part of the bargain ie) pay the bill? And if we presume him competent to enter any contracts he wishes, what will happen when he makes what any one of us might consider an obvious "bad bargain"? When he or she is taken advantage of by the unscrupulous amongst us?

Remember, you can't have it both ways.

If a person is competent to make all the daily decisions that you and I do, then they must be also be held responsible for all the choices they make, just as you and I are.

And that's the reason why, for example, I feel that CACL would be doing a grave injustice to take a stand or recommend against guardianship.

It's also the reason why I agree with the majority of the court (and disagree with Mr. Mitchell) in it's decision in Indiana v. Edwards, at least in the abstract. Without knowing more as to the exact extent of the defendant's disability in that case, it is hard to make a judgment call as to whether or not the court 'got it right' in that instant case. But I do agree with them on principle.

Just as in the case of how one implements "inclusion" in a school classroom, I believe there are no one size fits all answers when it comes to how individuals with disabilities should be treated in the legal system, be it criminally or civilly.

The "right answer", or at least as "right" as it can be, will depend on the extent of the individual's disability.