The MacKenzie Friend - A Welcome Development

I'm happy to share a great idea to assist self-represented litigants (SRL) in court, one which I must admit I was totally unfamiliar with until now - the MacKenzie Friend.

A McKenzie Friend is a personal supporter, chosen by the SRL, who sits “upfront” and can take notes, pass documents, or even just sit there as moral support. They do not address the court or offer any legal advice, but they can help the SRL to stay focused and calm during a hearing, and can debrief with them after.

This is important because not only are many SRL intimidated with the court process and having to appear in court, they often find it difficult to accurately and fully recall what they were told by a judge because of courtroom nerves.

Although the concept originated in the UK, it is now becoming more widely supported in Canada. You do need to ask the court for permission to have a MacKenzie Friend sit up-front with you, but chances are good you will receive a positive response.

Even better than knowing you can request to have a MacKenzie Friend with you in court is the newly-created Guide, "The McKenzie Friend: Choosing and Presenting a Courtroom Companion”. This new Guide was created by written and researched by Judith DaSilva with Julie Macfarlane (she of the National Self-represented Litigant Project fame).

The new Guide – which includes a Worksheet with a series of questions for SRLs to work through in order to assess their needs, and then to identify a person best able to assist them (and least likely to raise the ire of the other side) is available on our website for free downloads. We would like to strongly encourage not just SRLs but also agencies, paralegals and lawyers serving the primarily self-represented to take a look at this resource and consider making it available to clients.

You can read more about the origin of the MacKenzie Friend, as well as the process leading to the creation of The McKenzie Friend: Choosing and Presenting a Courtroom Companion here.

Honestly, if I were any of one of you and I was considering heading off to court without a lawyer*, I would be on to this in two minutes flat.

Did I mention that it's free?

* Yes, that would include a situation where 1) I had used a lawyer to help me prepare for court but was heading into the lion's den courtroom alone or 2) I was making a guardianship application with the help of the Nova Scotia Legal Guardianship Kit.

Let's Talk Landon WebbGuardianship ~ Part IV

Long, long ago in a galaxy far, far away (in other words, before I had a child with a disability), I was involved with grassroots political lobbying for children in third world countries. Doing that work, I became very attached to a quote from Stephen Lewis, then Canada's Ambassador to the United Nations, to the effect that eventually the day would come would societies would be judged not by their industrial or economic output, but by how they treated their most vulnerable citizens.

I approach the issue of supported decision making as both a parent and a disability lawyer. I've read a fair bit of what Michael Bach, (Vice President of the CACL) and others have written on exactly how supported decision making would work. I found it fascinating. But, quite frankly, I also found some of it quite scary.

I was particularly struck by a response given to a statement made by the Ontario Select Committee on Mental Health and Addictions that the "right to autonomy must be balanced with the right to be well". Part of CACL's response to that statement was that there is no recognized right to be well in domestic or international law.

Is this the path we want to go down? Really?

At any rate, I beg to differ - Section 7 of the Canadian Charter of Rights and Freedoms guarantees all of us the right to "life, liberty and security of the person". I would have no trouble arguing that that includes a right to be well. I recall listening to an amazing presentation by Dr. Condoluci at a CACL Conference a few years back, where he spoke of research showing that cross-culturally parents want their children to be healthy, happy and have longevity. I rest my case. For now anyway.

Please understand. I love the concept of supported decision making. In the abstract. But my concern is exactly how we are to balance the right to autonomy (that you, I and everyone else demands and deserves) with the duty to protect where decision-making abilities are limited, needed supports are lacking or people are vulnerable to abuse or neglect.

I am the first to admit that there are huge problems with the other substitute decision making options available, particularly guardianship. You might just have been living under a rock if you haven't come to realize over the course of the last several months that Nova Scotia has what is likely the most archaic, restrictive guardianship system in the country.

Sadly, we currently have a system that labels individuals as competent or incompetent without recognizing that people can be competent in some matters and less so in others. It's a very blunt instrument that doesn't allow for supported decision making and reinforces the perception that people with intellectual disabilities don't have capacity. It's a winner take all, one size most definitely doesn't fit all, take it or leave it kind of system. Frankly, it leaves a LOT to be desired. I am happy to say that, fortunately, that should soon change ("soon" being a relative term, of course).

As I said, I approach the issue of supported decision making from the perspective of both a parent and a lawyer. And the real question for me is whether and how much it is acceptable for society to act to protect individuals with intellectual disabilities.