'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

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?

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.

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. 

Presumption
(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.

Blog Action Day - Standing Up for Human Rights

HUMAN RIGHTS .... a BIG HUGE topic, but one that surely could not be more relevant to those in the disability community and their families.

Looking back at the topics we have discussed over the past six years on this blawg; be it education, transportation, recreation, employment, medical care or housing, bottom line, aren't we really talking about the same thing - about the right to equality, the right to have the same access to the same services and (even more importantly, the same opportunities) as everyone else?

Yes, there will always be those that have it worse than you and I, than mine and yours. Just think of what it must be like to live with a disability in a third world country or a country where you are, irrespective of your disability, of the *wrong* gender or race. Then again, come to think of it, you could be an Aboriginal child with a disability living right here in Canada. Think of how much worse your life could would be.

But that really isn't the point, is it?

Of course not - the point is that no matter where we live, no matter who we are, we are all entitled to the same basic human rights. Not because the government of the day happens to agree or because we live in relative wealth, but because of one simple, inescapable fact - male or female, old or young, no matter our race or gender identity or sexual orientation or any other difference, no matter where we happen to live on this earth ...

We.

Are.

All.

Human.

And yet, simply *having* these rights is obviously not enough. Like any other "right", such rights would be meaningless without a mechanism of enforcement.

And as I turn my mind to the legal world, to "the law", I can only sincerely and humbly thank those who had the grit, determination and drive to realize the obvious and fight to have those rights enshrined as part of our law. And, in Canada's case, not just as part of the law. but as part of the highest law of the land, our Constitution.

But, sadly, two steps forward and one step back seems to be the way of life in so many ways. For even though sec. 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is "equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" and even though Canada is a signatory to both the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, we are still forced to stand up and fight for these rights over and over, right here in Canada.

So it is that I can only offer my eternal gratitude to those, both inside and outside the disability community, who have stood up to demand that these rights be, not just recognized, but given real meaning; to those who have stood up for the rights of our parents, our siblings, our children, our friends, ourselves.

But as I write this I realize that what concerns me, personally, most of all in this matter are those in the disability community who, for whatever reason, will not stand up and be counted, not stand up and be heard, not stand up and support others in their fight for equality. For it is only if we all stand together that any one of us can be truly successful.

And so I leave you to ponder the famous words of Martin Niemöller:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

An Interesting Tidbit Look at Physician-Assisted Suicide

In Canada, suicide is not a crime. However, assisting someone to commit suicide is.

Or, at least, it was.

In a June, 2012 decision out of British Columbia, the British Columbia Supreme Court (BCSC) found that these Criminal Code prohibitions violated the Charter rights of the plaintiffs (a woman with a fatal neurodegenerative disease and the relatives of another woman who had terminated her life in Switzerland with their assistance).

Some of you might recall the issue of physician-assisted suicide being dealt with many years ago; in 1993, to be exact. In that case, the Supreme Court of Canada (SCC) found that although the prohibition on doctor-assisted death engaged the s. 7 rights of liberty and security of the person, the law should be upheld based on the importance of the objective behind it; namely, the protection of the vulnerable. This policy is part of our fundamental concept of the sanctity of life and it was noted that blanket prohibitions on assisted suicide is the norm among Western democracies.

The government's repeal of the offence of attempted suicide was not a recognition that suicide was to be accepted within Canadian society but merely reflected the recognition that the criminal law is an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the SCC found that the blanket prohibition on assisted suicide was neither arbitrary nor unfair.

But the law has developed since then, particularly as to what exactly is encompassed in the term "principles of fundamental justice" (as found in s. 7).  Further, the Rodriguez case had not dealt with the issue of s. 15 equality rights.

If Only ...

I came across this story a few days ago and it made me really, really wish the Canadian Charter of Rights and Freedoms contained wording similar that found in the Americans with Disabilities Act, requiring that people with disabilities be allowed to live in the "most integrated setting" within their communities.

Because if it did, then maybe, just maybe, we could just as easily settle our own class action law suit and rather than assigning dollars to “institutions,” the money would follow the individual to the housing of their choice.

A federal judge on Wednesday approved a settlement to a long-running civil case that will force Illinois to begin moving hundreds of people with developmental and intellectual disabilities into more community-based homes and apartments of their choice.

“I firmly believe that the state of Illinois, the citizens, have been well-served by these efforts,” said U.S. District Judge James Holderman, who congratulated lawyers who have spent months negotiating terms of controversial case.

“I will issue an order promptly,” he said, noting that he had received only two objections out of 21Ö responses filed with the court. “I will announce informally today that my position is that the consent decree should be approved and this should be the law that is followed.”

The settlement in the case filed in 2005 by Stanley Ligasd and other plaintiffs will change the way the state now pays for their care. Rather than assigning dollars to “institutions,” the money would follow the individual to the housing of their of their choice. Institutions are defined in the lawsuit as any private, state-funded facility with nine or more residents.

Unfortunately, though, that's not the case

Leaving us to rely on sec. 15 of the Charter.

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

And although there are numerous examples of people attempting (unfortunately, not all that successfully) to use the equality provisions of the Charter to fund adequate social assistance rates and sec. 7 guarantees to "life, liberty and security of the person" to argue a right to subsidized housing for Canadians, I'm not sure that anyone has yet tried to pair sec. 15 rights with a right for the physically and mentally challenged to live within their own communities, in the homes they would choose.  As opposed to those that are imposed on chosen for them.

Although I'm thinking the wording of sec. 15 will never be found to support such a right; that we would need much more explicit wording, such as that found in the Americans with Disabilities Act.

Still, anyone there aware of any Canadian case law in this regard?

Good On Him

Although I cannot for the life of me find the story in the digital world *, I heard on the ATV Evening News tonight that a man in the New Glasgow area has brought a lawsuit against the Province in regard to the lack of sign language interpreters available to the deaf population during emergency situations. I believe the gentleman's name was Fiet, but please forgive me if I'm wrong.

At any rate, this person, who has been deaf all their life, had a stroke and ended up in a Halifax hospital, where he asked for a sign language interpreter so he could communicate with the doctor.  Lo and behold, there were none in the land!

And to think I thought we had well and truly dealt with this issue back in 1997!

Because when the Supreme Court of Canada speaks, really, we all should listen:

71 If there are circumstances in which deaf patients cannot communicate effectively with their doctors without an interpreter, how can it be said that they receive the same level of medical care as hearing persons?  Those who hear do not receive communication as a distinct service.  For them, an effective means of communication is routinely available, free of charge, as part of every health care service.  In order to receive the same quality of care, deaf persons must bear the burden of paying for the means to communicate with their health care providers, despite the fact that the system is intended to make ability to pay irrelevant.  Where it is necessary for effective communication, sign language interpretation should not therefore be viewed as an “ancillary” service.  On the contrary, it is the means by which deaf persons may receive the same quality of medical care as the hearing population.

72 Once it is accepted that effective communication is an indispensable component of the delivery of medical services, it becomes much more difficult to assert that the failure to ensure that deaf persons communicate effectively with their health care providers is not discriminatory. In their effort to persuade this Court otherwise, the respondents and their supporting interveners maintain that s. 15(1) does not oblige governments to implement programs to alleviate disadvantages that exist independently of state action. Adverse effects only arise from benefit programs, they aver, when those programs exacerbate the disparities between the group claiming a s. 15(1) violation and the general population. They assert, in other words, that governments should be entitled to provide benefits to the general population without ensuring that disadvantaged members of society have the resources to take full advantage of those benefits.

 ~  ~   ~  ~

95 I have found that where sign language interpreters are necessary for effective communication in the delivery of medical services, the failure to provide them constitutes a denial of s. 15(1) of the Charter and is not a reasonable limit under s. 1. Section 24(1) of the Charter provides that anyone whose rights under the Charter have been infringed or denied may obtain “such remedy as the court considers appropriate and just in the circumstances”. In the present case, the appropriate and just remedy is to grant a declaration that this failure is unconstitutional and to direct the government of British Columbia to administer the Medical and Health Care Services Act (now the Medicare Protection Act) and the Hospital Insurance Act in a manner consistent with the requirements of s. 15(1) as I have described them.

So I think that should just about take care of that, don't you?

* I would be grateful to anyone who could find me an internet reference to the story.

Special Education and Parents' Rights

In Nova Scotia, the education of a special needs child is governed by:

1. The Canadian Charter of Rights and Freedoms
2. The Nova Scotia Humans Rights Act
3. The Education Act and Regulations made pursuant to that Act
4. The Special Education Policy Manual

I have listed these documents in their order of importance, or in other words, what trumps everything else (the Charter) comes first.

I. CANADIAN CHARTER OF RIGHTS AND FREEDOMS
The Charter is part of Canada’s Constitution and as such, any federal or provincial law in conflict with it will be of no force and effect to the extent of the conflict. For our purposes, the most relevant section of the Charter is sec. 15 which provides that "Every individual is equal before and under the law and has the right to the equal protection and benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability’.

To date, there has been one major case where the Supreme Court of Canada has applied this section of the Charter in the context of the rights of a special needs child in the educational system [Eaton v. Brant (County) Board of Education (1996) 142 D.L.R. (4th)385].

In that case, the parents of a multiply-handicapped child appealed her "placement" – although Emily had initially been placed in a regular kindergarten class with a special assistant, after two years the school wanted Emily to be placed in a segregated special education class and the parents wanted her in a regular grade level classroom. Through the IPP appeal process, the case eventually made its way to the Supreme Court of Canada. The argument centred around s. 15 of the Charter – was it discriminatory to place Emily in a special education classroom? The Court found that in the facts of that particular case, it was not. It would be in Emily’s "best interests" to be placed in a special classroom.

Although some people view this case as a step backwards for equality and perspective is, of course, everything, I see this case as an important step forward for special needs children. The court noted that true equality requires the recognition of differences and focused upon a lack of accommodation as the real threat to disabled people in Canada. It was found that segregation can both protect and violate equality depending on the very individual characteristics of the child in question. Integration was accepted as the general norm for the placement of special needs students due to the benefits it provides. But at the same time, the court found that a presumption such as that imposed by the Ontario Court of Appeal in favour of integrated schooling should be rejected on the basis that it may operate to deprive pupils that do require special education services that are best provided in a segregated setting (p. 407).

The idea that each individual child, the strengths and needs of that particular child and where those needs are best met as the controlling factor in determining placement makes sense, at least to me. The court held that in some cases segregation would constitute discrimination; in other cases, inclusion in a regular classroom would be discriminatory. It all depends on the particular child and what is in their best interests.

The potential pitfall that I see in this analysis is how we determine (and who determines) what is in a particular child’s best interests. Unfortunately, the courts often display a high degree of deference to the "specialized tribunals" that represent school boards, whether it be the Identification Placement and Review Committee which determined placement in the Eaton case or the Ministerial appeal board we find in Nova Scotia. It has been noted that parents have no such benefit and the weight of their choice is only felt when they agree with the Board. And to date, not only in Nova Scotia, but across the country, the courts definitely tend to come down on the side of the education system as being the best party to make such decisions.

One point that is clearly made by the case of Emily Eaton is that people with disabilities are not required to take the world as they find it, as the mainstream world is focused on an able-bodied perspective. A decision regarding placement of a child must be governed by an analysis of the individual needs of that child and focused on the best interests of that particular child.