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.]

"Bring Unto Me the Little Children"?

As I said about the SCC decision in R. v. D.A.I. that we were discussing the other day ... good news. But, maybe, just maybe, some bad news, too.

Although the decision of the SCC was not unanimous (two of the seven judges "dissented", meaning they reached a different conclusion), that's not a problem, per se, from a legal point of view. There's very little point in appearing in (any) court and arguing for whatever a minority of the SCC had to say in any given case; the majority decision will carry the day.

But what I found interesting is the minority's analysis of the meaning (and effect) of the majority's decision.

The minority judges correctly noted that s. 16(2) provides that, if the challenged witness is able to communicate the evidence and understands the nature of an oath or a solemn declaration in terms of ordinary, everyday social conduct, he or she can testify (as a typical witness) under oath or solemn affirmation. However, if the challenged witness is able to communicate the evidence but does not understand the nature of an oath or a solemn affirmation, s. 16(3) provides that he or she may provide unsworn testimony on promising to tell the truth. But if the challenged witness does not satisfy either criteria, s. 16(4) provides they cannot testify.

Although the minority agreed with the majority that promising is an act aimed at bringing home to the witness the seriousness of the situation and the importance of being careful and correct, they disagreed with the proposition that a trial judge is not allowed to try to determine — in concrete everyday terms — whether, in reality, this actually occurs in the case of a particular witness whose mental capacity has been challenged. They reasoned that if such a witness was so disabled as not to understand the seriousness of the situation and the importance of being careful and correct, the fair trial interests of the accused are unfairly prejudiced.

In 2005, the following provisions were added to the Canada Evidence Act with respect to child witnesses.

16.1 (1) A person under fourteen years of age is presumed to have the capacity to testify.

No oath or solemn affirmation
(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.

Evidence shall be received
(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.

Burden as to capacity of witness
(4) A party who challenges the capacity of a proposed witness under fourteen years of age has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to understand and respond to questions.

Court inquiry
(5) If the court is satisfied that there is an issue as to the capacity of a proposed witness under fourteen years of age to understand and respond to questions, it shall, before permitting them to give evidence, conduct an inquiry to determine whether they are able to understand and respond to questions.

Promise to tell truth
(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.

Understanding of promise
(7) No proposed witness under fourteen years of age shall be asked any questions regarding their understanding of the nature of the promise to tell the truth for the purpose of determining whether their evidence shall be received by the court.

Effect
(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.

You will note that s. 16.1(7) prohibits asking a child witnesses “any questions regarding their understanding of the nature of the promise to tell the truth”. As the minority pointed out, the empirical evidence before Parliament when this amendment was made related exclusively to children; no such studies were carried out with respect to adults with mental disabilities. A “don’t ask” provision was neither proposed nor adopted with respect to adults with intellectual disabilities. In other words, as in so many other areas of criminal law, this population simply wasn't considered.

The minority agreed with the majority that the words “on promising to tell the truth” in s. 16(3) had the same meaning as “to promise to tell the truth” in s. 16.1(6). But that being the case, the minority believed that the majority must have read the s. 16.1(7) “don’t ask” rule [applicable only to children) into s. 16(3) [applicable only to mentally challenged adults] in order to read down the words “promising to tell the truth” in s. 16(3), and thus treated adults with mental disabilities as equivalent to children without mental disabilities.

The minority went on to find that just because psychiatrists speak of persons with mental disabilities in terms of mental ages does not mean that an adult with mental age of six is on the same footing as a six‑year‑old child with no mental disability whatsoever as a six‑year‑old with the mental capacity of a six‑year‑old does not suffer from a mental disability. No evidence had been provided to the court to suggest this equivalence and a court can only take "judicial notice" of alleged “facts” that are either notorious or easily verifiable from undisputed sources.

I find this analysis particularly interesting because one of the points made in an analysis of this decision by Laurie Letheren, a staff lawyer at the ARCH Disability Law Centre, is how inappropriate it was that throughout the history of R. v. D.A.I. the witness and other adults with intellectual disabilities were compared to children. She uses the example of the court accepting, without question, the evidence of the psychiatrist (who never even met the witness) that she “possessed the mental age of a three- to six-year-old”.

To me, this is wrong at so many levels, but Ms. Letherin comments on its inappropriateness, given that the young woman in question had attended high school, was involved in her community and had 19 years of lived experience, noting that such characterization of adults with intellectual disabilities needs to be challenged if the criminal justice system is to be truly inclusive.

I can certainly agree with Ms. Letherin that the 19-year-old witness could not, mentally, be the same as a three to six-year-old because she had had the life experiences of a 19-year-old, not a six-year-old; no matter the mental level those experiences had been processed at.

However, it strikes me that if we choose to look at this case through that lens, we can't ignore what is essentially the same issue (in a slightly different context) as that pointed out in the minority decision.

"Can You Promise to Tell the Truth, the Whole Truth and Nothing But the Truth?"

Long-time readers might recall a post from way back in the way back where I compared the right and ability of individuals with mental illness to represent themselves in court, the right of an accused with schizophrenia to  represent himself at trial and the appropriateness of guardianship.

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?

Wherever you might come down on those particular issues, a recent decision from the Supreme Court of Canada has certainly advanced the rights of people with intellectual and mental health disabilities to more fully access the criminal justice system.

The case involved a young woman with an intellectual disability who had accused her mother’s partner of sexually abusing her. Although at trial the young woman demonstrated that she could communicate the evidence and promised to tell the truth, the trial judge questioned her on her understanding of the nature of truth and falsity, of moral and religious duties, and of the legal consequences of lying in court. [Can you say abstract?} Unsatisfied with her answers to these questions and relying on the opinion of a psychiatrist who had never even spoken to the young woman, the court found that she could not give her evidence and the case against the accused was dismissed.

To give a better understanding of what happened here, I am going to provide you with the relevant sections of the Canada Evidence Act. Pay particular attention to s. 16(3):

16. (1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.

Testimony under oath or solemn affirmation
(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.

Testimony on promise to tell truth
(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.

Inability to testify
(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.>

Burden as to capacity of witness
(5) A party who challenges the mental capacity of a proposed witness of fourteen years of age or more has the burden of satisfying the court that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.

You will notice that under s.16(3) [above], if a person’s capacity to give evidence is challenged and the judge finds that person does not understand the nature of an oath or solemn declaration, they can still give evidence if they can communicate the evidence and promise to tell the truth. The problem is that the courts have routinely gone beyond that requirement and established a practice of placing an additional burden on witnesses whose capacity is challenged, requiring them to demonstrate that they understand what it means to promise to tell the truth by explaining such abstract terms as “truth” or “lie”.

Fortunately the matter eventually made its way to the Supreme Court of Canada (SCC) , where the majority of the Court found that the trial judge had erred when he required the young woman to demonstrate that she understood the nature of a promise to tell the truth. The majority of the Court concluded that when a witness’ capacity to testify is challenged there are only two requirements that the witness must meet:

1. the ability to communicate the evidence and
2. promising to tell the truth.

Additionally, in determining the proper steps that a judge is to take in such circumstances, the SCC set out a very common sense (and disability-friendly) process to be followed, including that:

•  the primary source of evidence for a witness’s competence is to come from the witness, herself;  
• questioning an adult with mental disabilities requires consideration and accommodation for her particular needs, with questions to be phrased patiently in a clear, simple manner; 
• given that persons familiar with the proposed witness in her everyday situation will understand her best, they may be called as fact witnesses to provide evidence on her development; 
• although expert evidence can be adduced, preference should always be given to expert witnesses who have had personal and regular contact with the proposed witness; and
• the inquiry into the witness’s ability to communicate the evidence will require a trial judge to explore in a general way whether she can relate concrete events by understanding and responding to questions and it may be useful to ask if she can differentiate between true and false everyday factual statements.

So, good news, that. Progress is, after all, progress.

But, unfortunately, like so many things in life, there's both "good news" and "bad news" to be found in this decision.

The "good news" is, I believe, pretty clearly set out above. The 'bad news" is only found by digging a little deeper and touches more on a philosophical point. But I do believe you might be better served if I leave that discussion for another day.

For now, let's just sit with our victory.*

* Without commenting on the fact that it's pretty sad when what constitutes a "victory" merely sets individuals with intellectual disabilities on the same playing field as every other citizen in this country.

** By the by, and just as another aside, I might point out that out of the Justices involved in this decision was our old friend, Justice Cromwell. 

The Perfect Summer Day

You might remember my previous post about Kilometers for Communication and 17-year-old's Skye's journey across Canada to raise awareness and funds around issues of augmentative and alternate communication.

Yeah, I'm a bit of a fan. I admit it.

Which is why I was thrilled to learn that Friday July 22nd, 2011 is the big day!

From 11:30am—1:30pm on the Halifax waterfront, outside the Maritime Museum of the Atlantic. BE. THERE.

I'm not too pushy, am I?

Hope not, but then again, you were warned that we really need to give Skye and his family a warm Maritime welcome, weren't you?

To top off the perfect day, apparently Q104 will be on hand for some fun and free food! But as much as I love the words fun, sun and food in the same sentence, that's not the real reason to be there, is it?

For more details, contact: reneajoy@eastlink.ca

And be sure to check out Skye’s blog or, better yet, follow it and his journey as I'be been doing.

BLOGGING On

We don't have a blogroll around these here parts (for anybody not in the know, that would be a list of blogs that I read and/or recommend posted on the sidebar) - the main reason for that being there are very few Canadian legal-disabilty blogs out there, or at least very few (read none) that I'm aware of.  Which is a large part of what led me to start this endeavour in the first place.

But I digress. 

I've just been introduced to a blog I would like to heartily recommend.  It's called Kilometres for Communication.

What's it all about you ask?

This blog is about communication. It’s about a special kind of communication called AAC. (I personally struggle with this term; it stands for Augmentative and Alternative Communication, which is too much of a mouthful for me. AAC is simply an alternative way to communicate when someone has limited or no speech.) This blog is about disability, and navigation of disability in a society which orients itself towards people who are able-bodied. But this blog is also about ability, diversity, capability, possibility, hope. It is about our humanity, and about our connection–one person to another. It is about community and inclusion, and about how wrong it is for any of us to exclude and to make the decision that someone does not belong because he or she is different. So this blog is also about the importance of accessibility, because accessibility is a key to inclusion, belonging and community.

A family affair - the 17-year-old younger brother of "an artist, educator, social activist, writer, story teller, gardener, community facilitator [who] happens to travel in a wheelchair and communicate with AAC" proposes (family in tow) to cycle across Canada to ... well, how about if I let them tell you?

We would meet with people who speak in creative and diverse ways, and with the help of the media, introduce them to Canadians so that never again could they equate not being able to speak with not having anything to say. We would invite people to wheel, walk, run and cycle with us, and we would invite organizations, small groups of people and individuals to host events across Canada to raise public awareness and funds to empower voices and to make accessibility and inclusion a national priority for the more than 3 million Canadians with disabilities.

I don't know about you, but I think this is pretty nifty.

When my youngest daughter read this, she said it sounded a lot like the Terry Fox Run. 

I pointed out that although a lot of people have walked, ran, biked, etc. across Canada to raise money and awareness on issues like cancer and for other "good causes" and the man in motion is back at it (actually I'm not sure he ever really stopped), I've never heard of anybody doing quite this. I've never heard of anyone giving a voice to people who struggle to communicate in our world quite this way.

So. Company's coming. 

The plan is to leave BC on May 19th and head East.  Which, really, is the only way to go.  It seems to me  that we best be plumping the pillows and airing out the guest house.  Perhaps some fresh cut flowers on the table.  And to really show our Maritime hospitality maybe, just maybe, we could organize an event for Kerr and Skye when they get here?

~ ~ ~ ~ ~

As an aside (and with my apologies to Dave for making it an aside), as long as we're here there's probably one more blog I should throw out there.

Many Most of us have probably heard of Dave Hinsburger, actually he's one of the authors of my latest book reviewed (Sexuality - Your Sons and Daughters with Intellectual Disabilities - a most excellent book, by the way and yes, it's yet another opportunity for me to remind you of the Book Reviews tab at the top of the page) but I, for one, wasn't aware that not only is a Dave a most-excellent resource on many disability issues, he also faces his own challenges. Dave uses a wheelchair to navigate his way through life in Toronto (and the rest of the country) and if you would like to know more about that, he welcomes you to join him, Rolling Around in My Head.

So there you have it, my little (blogging) community post - just trying to do my part to brighten up said community.  Because, despite it's many, many challenges, most days it's a pretty good place to live.

Picture Exchange Communication System (PECS) Basic Training

The Two-Day Picture Exchange Communication System (PECS) BasicTraining is coming to Halifax, Nova Scotia!

This intense two-day training, designed by Andy Bondy, Ph.D. and LoriFrost, M.S. CCC/SLP, is designed to teach participants to effectively implement the Picture Exchange Communication System. Participants will learn how to implement the six Phases of PECS, including attributes, through presenter demonstrations, video examples and role-play opportunities. Participants will
leave the workshop with a thorough understanding of how to implement PECS properly with individuals with autism, related developmental disabilities, and/or limited communication skills. This training is designed to be appropriate for those individuals just beginning to teach PECS and those individuals with prior experience teaching PECS who have not yet attended an official PECS training.

With its focus on practical strategies and hands-on practice, it will strengthen participants’ ability to problem-solve challenges that may arise during PECS’ implementation and enhance participants’ ability to teach PECS most effectively.

When: June 9 & 10, 2008

Early Registration (before April 28, 2008): Professional $400, Parent/Student $350

After Early Registration: Professional $450, Parent/Student $400

(Registration includes The Second Edition PECS Training Manual - a $69 value, the PECS Data Sheets CD – a $20 value, detailed handouts with space for notetaking, certificate of attendance, continental breakfast on both days).

Group Discounts: Pyramid offers discounts to groups of five individuals or more and has several attractive group packages, please contact us directly at 416-546-7327 to learn more.

For more information about this training, or other available training dates and locations, please visit our website at www.pecs-canada.com or call us at 416-546-PECS.