"You Have the Right to Remain Silent ..."

A quick follow-up from this 2009 post regarding challenged youth and the criminal justice system.

The 2009 case involved a Nova Scotia youth with a learning who disability, who made a statement to
police after having purportedly "waived" his right to (among other things) not make such a statement, consult a lawyer and have a lawyer or other adult (usually a parent) present if he made a statement. Although the boy’s mother had told the police of his learning disability,  the officer read the youth his rights in a rapid monotone, not making eye contact, asking only if the boy understood – to which he answered "yes" – but without attempting to gauge the level of that understanding. 

The officer’s rapid pace in navigating the waiver form, monotone voice and lack of eye contact or effort to establish the youth's level of understanding; along with the lack of any real evidence that the youth actually understood his rights left the court unsure whether the youth really understood the importance of the questions and the answers he was giving.

The Supreme Court of Canada held that police must not only advise a young person of their legal rights, but ascertain that he or she actually understands those rights and make an effort to become aware of complicating factors (such as a learning disability or any previous experiences with the criminal justice system).

The police must make an individualized inquiry, so that they can explain the person's rights in a language and at a level that the youth will be able to understand.

"An individualized, objective approach must take into account the level of sophistication of the young detainee and other personal characteristics relevant to the young person’s understanding. Police officers, in determining the appropriate language to use in explaining a young person’s rights, must therefore make a reasonable effort to become aware of significant factors of this sort, such as learning disabilities and previous experience with the criminal justice system.

As a result of this decision, Canadian police have had to work harder to ensure that the youth they deal with actually understand their rights and what it means to give up such rights.  They are required to ask questions about the youth's individual circumstances and tailor their speaking so as to meet that youth's level of understanding if they hope to have any statement made by the youth admitted as evidence in court.

There is much more of interest in this case, so you might want to review that 2009 post in more detail. However, for our purposes today, I found it interesting that school police in Baltimore have now been asked to adopt a "youth-friendly" Miranda warning.

The Baltimore Sun reports the Baltimore school board is currently accepting feedback on new school police policies under consideration before a vote next month.

Juvenile public defender Jenny Egan asked the school board to formulate a Miranda warning that includes developmentally appropriate language. Egan says the typical recitation heard in many a television procedural features clunky language that's difficult for children to understand. Juvenile public defender Neeta Pal read commissioners a "youth-friendly" warning adopted in Seattle's King County that simplifies the language.
[Emphasis added]

If such a move is necessary for typically developing youth, how much more important is it for our youth?

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.

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.

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.

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?

Pertinent and Timely Questions in Criminal Law ~ Part I

Given some of the events we have witnessed over the past year in Nova Scotia, this struck me as a good time to ask the question - whether victim complainant or perpetrator defendant, how well does the criminal justice system deal with people with special needs?

Whether the issue is the fall out from the United States Supreme Court taking the death penalty off the table for criminals with mental disabilities on the basis that such executions constitute “cruel and unusual punishments", the appropriateness of laying criminal charges against such individuals in the first place, the process for trying these individuals once they have been charged with a crime or how well the criminal law protects those with mental disabilities from the harmful actions of other individuals, the question essentially remains the same - how well does the criminal justice system deal with individuals with intellectual challenges and other mental and physical disabilities?

To answer that question, we need to look at how Canada's criminal justice system deals with individuals with special needs at every step of the process - from the laying of criminal charges to determining fitness to stand trial and criminal culpability to the sentencing of individuals with mental and physical disabilities. And then there's the issue of exactly how the system deals with such individuals when they have been harmed at the hands of another.*

Now, that's a little too much ground to cover for one blawg post, so for the moment let's look at the issues around the laying of criminal charges and fitness to stand trial.

In Part II, we will look at how criminal culpability is decided, the sentencing of a person with a disability and how well the system does when a person with special needs is the complainant or victim of a crime.*

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 

What better example could there be then the current situation involving Nichele Benn?

For anyone who's somehow managed to miss it, 25-year-old Nichele has an organic brain disorder and began exhibiting bouts of aggressive behaviour following an epileptic seizure when she was four. We are told that due to her disability, Nichele is unable to control these outbursts. Despite that situation, things went fairly smoothly for the many years Nichele was living in an alternative family arrangement (think of it like foster care for an adult). Well, they went smoothly until the Department of Community Services changed its protocol and no longer allowed the family to use a therapeutic quiet room when Nichele had one of her aggressive outbursts.

The new protocol required demanded that the police be called any time such a situation occurred. That resulted in Nichele being forced to move from a family situation to a rehabilitation centre. And the results of that?

Since the protocol change, Benn has had 17 police interventions, seven incarcerations and several assault charges and convictions. Nine months ago, Benn scratched the face of a commissionaire during an aggressive outburst; the police were called, Benn was arrested, charged and sentenced to 18 months’ probation, 24 hours of community service and ordered to provide a DNA sample.

That was the situation back in March of 2013. Since then, things have only gotten worse for Nichele. This past April, Nichele was charged with assault after she slapped another resident in retaliation for him allegedly spitting in her face several times. Last month, Nichele bit a staff member while she was being put back in her room. Once there, she threw several objects at another staff member. That incident resulted in charges of assault and assault with a weapon  the "weapon", by the way, was a shoe.

It's obvious that the Department of Community Services (DCS) has a huge role to play in this situation, even if they have now taken the position that they have no such protocol in place, that it is up to each residence to decide how to respond to such incidents. All of which, of course, begs the question - if DCS has no such policy, why did Nichele have to move from a situation that worked so well for her in the first place?

But putting aside the issues with DCS for the moment, should individuals in Nichele's situation, no matter where they live, be funneled through the criminal justice system?


I.  Laying Criminal Charges
It is a Crown prosecutor who ultimately decides whether or not charges will be laid in any particular case. Although this decision is made in consultation with the police, the ultimate decision is the Crown's. That ability to decide whether or not, in any particular case, to lay charges is known as discretion.

The question has often been asked as how well police officers have been trained to deal with individuals they may encounter with special needs. But I, for one, can't help but think that we also need to be asking how well, if at all, Crown prosecutors have been trained in dealing with individuals with special needs.


II. Diversion - Nova Scotia's Mental Health Court
You might recall that back in 2009, Nova Scotia opened its first Mental Health Court. The government see below]and be willing to accept responsibility for their actions. Although, as in the regular court system, sanctions at the end of the day could range from an absolute discharge all the way up to incarceration., the bottom line of the mental health court is to get the person out of the criminal justice system. The Province opted for a referral system that would see offenders treated by a team of trained court staff, including social workers and a probation officer.

The whole point of the Mental Health Court is "ensur[e] the administration of justice, public safety, the development of individualized support plans, case co-ordination and to facilitate access to mental health and community services for the participant".

Well that was the plan, anyway. Anyone see any problem here?

Outstanding and Subsequent Charges 
There is no limit to the number of charges that will be dealt with for any given participant, subject to an overriding public safety concern that may be raised by the Crown Attorney.

Any offences committed by a participant while they are involved in the Program will not automatically lead to expulsion from the Program. All new charges will be reviewed and screened on a case by case basis.. 

"Any offences committed by a participant while they are involved in the Program will not
automatically lead to expulsion from the Program." 

Really? These are individuals with mental health issues, correct? Mental health issues that have caused them to come into contact with the wrong side of the criminal justice system, no?

And yet, knowing all that, we are still going to boot them back into the regular court system if they don't have the good sense not to re-offend while they are in the program? [That last part was sarcasm, by the by.]

The consequences of not adhering to a support plan are set out below.

Breach and Sanction 
.  .  .
The consequences of a failure to adhere to the Support Plan may result in the participant being ordered by the Judge to return to Nova Scotia Mental Health Court and have
additional conditions and/or sanctions imposed.

Sanction for breaches may include, but are not limited to:
• an increase of frequency in court appearances;
• closer supervision;
• a change in curfew and/or reporting requirements to      Probation;
• a change in the Support Plan;
• termination from the Mental Health Court; and
• in rare circumstances, may result in a period of detention. 

But if a person re-offends while in the program, might we presume the support plan is either not working or not being properly followed? Might we consider the possibility of modifying said plan? Apparently not. Just ask Nichele Benn.

III.  Fitness to Stand Trial
Under section 2 of the Criminal Code, unfitness to stand trial is defined as follows:

“unfit to stand trial” means unable on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

(a) understand the nature or object of the proceedings,

(b) understand the possible consequences of the proceedings, or

(c) communicate with counsel;

Defence lawyers, Crown lawyers and judges all have the power to seek a forensic psychiatric assessment to ensure that a person is fit to stand trial.

The test for fitness isn't onerous. The accused need only have a basic understanding of their legal problem. The test isn't whether they actually know their legal situation, but whether they are able to understand the concepts involved and to communicate. Capacity is the central concern, which means that the bar for determining fitness is actually set quite low.

Nor is it necessary that an accused be able to act rationally or in their own best interest in order to be considered fit to stand trial. For example, symptoms of paranoia might cause an accused to do something that would negatively affect their trial, such as fire their lawyer. But as long as this paranoia doesn't reduce their capacity to understand the court process or communicate with a different lawyer, they will be considered fit to stand trial. And when it comes to the third part of the test, the "ability to communicate with counsel", only a "limited cognitive capacity" to communicate with counsel and understand the process is required.

If the court determines that an accused is not fit to stand trial, the Crown lawyer can bring in an application for a Treatment Order (also called a "make fit" order). If this order is granted, the accused will be sent to a mental health facility for treatment to help make them mentally fit enough to stand trial.A make fit order can last up to 60 days, but the accused will typically be returned to court after 30 days to see how they are doing.

As an aside, a Treatment Order is the only circumstance under Canadian law which allows treatment of an accused without their consent. It can only be ordered if

• a psychiatrist thinks the accused can be made fit within 60 days if they receive treatment;

• only the least intrusive methods are used; and

• the benefits of making the accused fit to stand trial outweigh any possible negative effects of treatment.

You can find a really nice explanation of the fitness to stand trial process here. 


* We have already discussed other issues surrounding individuals with disabilities and the criminal justice system like the challenged individual's ability to give testimony, the duties on the police when dealing with a youth with a disability who is suspected of committing a crime and the right of a person with a mental disorder to represent themselves in court.

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.

"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. 

But What Does It Mean?

Deaf and hard-of-hearing children are neglected, abused and otherwise maltreated at a rate 25 percent greater than others, U.S. researchers say.

Researchers at the Rochester Institute of Technology in New York directly correlate childhood maltreatment and higher rates of negative cognition, depression and post-traumatic stress in adulthood.

The researchers found 77 percent of deaf and hard-of-hearing respondents indicated experiencing some form of child maltreatment, vs. 49 percent among hearing respondents. In addition, respondents with more severe hearing loss indicated an increased rate and severity of maltreatment.

I found the above report interesting.  Even though I wasn't sure exactly what it meant.

I mean, yes, it's sad. And pathetic.  And wrong.

But what exactly does it mean?

What does focusing on the abuse of children who are deaf and hard of hearing, as opposed to those who have other forms of disability, really tell us?

Sadly, I'm not surprised to find these children are maltreated at a rate greater than 25% than others.  But when we compare them to their "hearing" peers, are we also comparing them to their hearing peers who are mentally challenged? Physically challenged?  Those with ADHD or autism? 

Are they abused amy more or less than children labelled with other disabilities?

Does it really matter?

Has anybody done the studies, published the statistics showing how much more children with any form of disability are likely to be mistreated?

I'm certainly not promoting any us v. them division in the disability community.  I guess I am just wondering why a study was done which focused on this particular disability as opposed to some different disability. Or all types of disability.

That and just what people propose to do about it.  If abuse of any child is a crime (as well it should be), can these perpetrators be sentenced for a "hate crime" when their abuse is perpetrated against a child (or an adult) with a disability?  Should they be?

Just some rambling thoughts of a mother/lawyer on yet another snow day in Nova Scotia.

The Challenged Youth v. The Criminal Justice System

What (if any) are the duties on the police when dealing with a youth suspected of committing a crime?

What if that youth happens to face some less obvious intellectual challenges?

The Youth Criminal Justice Act provides that before a statement made by a young person can be used as evidence in court the Crown must prove that the police clearly explained to him or her that

1. the statement could be used against them,
2. that they are under no obligation to make a statement,
3. they have the right to consult a lawyer and
4. that any statement they make must be in the presence of a lawyer or another adult (usually a parent) unless the youth desires otherwise.

In order for a waiver to be valid, these rights must have been clearly explained.

~ ~ ~ ~ ~ ~ ~ ~ ~

This past autumn the Supreme Court of Canada restored the acquittal of a Nova Scotia learning disabled teen charged with dangerous driving causing bodily harm.

Despite the youth having 39 prior convictions, on a variety of offences, since age 12, the youth court judge, viewing his videotaped statement, was not convinced the youth properly understood and waived his rights and ruled the statement inadmissible, resulting in an acquittal.

The SCC upheld the acquittal, clarifying that police must not only advise a young person of the rights set out above but also ascertain that they actually understand those rights and, perhaps most importantly from our point of view, when determining what language to use in explaining these rights, the police must make an effort to become aware of complicating factors, such as a learning disability or any previous experiences with the criminal justice system.

Although the boy’s mother had told police of the teen's learning disability, the youth court found that the officer read him his rights in a rapid monotone, not making eye contact, asking only if the boy understood – to which he answered "yes" – but without attempting to gauge the level of that understanding. The mother said that on previous brushes with the law, her son had relied on her to explain what was happening and that he likely didn’t want to betray his confusion.

It was these facts; namely

• the officer’s rapid pace in navigating the waiver form;
• the lack of eye contact with the youth;
• the officer’s monotone voice;
• the lack of evidence, apart from his affirmative reply to repeated questions of “do you understand?”, that the youth actually understood his rights; and
• the lack of effort on the officer's part to establish the youth's level of understanding

that caused the youth court judge to be left in a state of doubt as to whether the youth really understood the importance of the questions and the answers he was giving.

On a bottom line level this SCC decision means that the police are going to have to work harder to ensure that all the youth they deal with understand their rights and what it means to give up such rights. It isn't going to be enough just to read them a script and ask if they understand. Rather, they will have to ask questions about the individual circumstances of each youth (and then tailor their speaking so as to meet that youth's level understanding) before taking his or her statement.

Meaning that the justice system, and in particular the police, as the system's front line actors, must accommodate all youth, including those with disabilities.

But could this case stand for even more than that?

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.

~ ~ ~ ~ ~

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?

~ ~ ~ ~ ~

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.

~ ~ ~ ~ ~

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.

~ ~ ~ ~ ~

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?

~ ~ ~ ~ ~

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.

"Individual Equality, Mental Disability and the Right of Self Representation in the Courts" - A Guest Post

I am happy to post this piece penned by Mr. Blair Mitchell, a Halifax lawyer, with whom I am well-acquainted. Mr. Mitchell has practiced civil and administrative litigation for over 20 years and has done a fair bit of work in the area disability.

Read it. We'll chat later.
A deep respect for human dignity lies at the heart of the idea of individual equality operating in western legal systems.

In our country, any of us may or may not agree with how Canadian Courts have applied equality rights or not in any particular case. But it is difficult to avoid the overall conclusion that the operation of the Canadian Charter of Rights has put our country amongst the most advanced of any in protecting and fostering individuality and the value of human dignity.

That doesn’t mean that the advancement doesn’t come without a price. Conflicts between the ideal of using the law to foster the exercise of individual independence and other principles saying the law and the courts should seek to protect individuals with disabilities from their own decisions by overriding those individuals’ own choices, are bound to occur.

I have just found a tough example of this clash (but perhaps with an obvious answer) in a report of the just released decision of the US Supreme Court in Indiana v. Edwards (June 19, 2008) on an American blog. [Slate, July 29, 2008, “The Supreme Court on the dignity of the mentally ill”]

The question in that case was, where a person has a mental disability that obviously interferes with his ability to coherently present his case, should a judge prevent him from representing himself in a trial. In other words, the Court really had to decide how far should a judge go to respect the personal entitlement to conduct his own case of a person litigating before it and when, and on what basis, should the court intervene to prohibit it?

Edwards underlines the difference between two very sharply contrasting points of view.

On the one side, is the sense that the State, through the court, has an obligation to protect people with a certain extent of mental disability from harming themselves, by trying to act as their own lawyer in their own case, particularly when charged with a serious offence. On the other side, is the idea that a right of the individual to make decisions concerning his own interests in litigation (or anything else) trumps any other public interest in the case.

It demonstrates how rickety the balance can be in a tough case.

The facts were these: Ahmad Edwards had been trying to steal a pair of shoes in a shoe store, nothing more. In the course of doing so he shot and wounded a security guard. For a pair of shoes. Edwards was arrested and charged with attempted murder. The stakes were clearly high and they remained high through more than the next decade.

It appeared soon after his arrest that Edwards was suffering from untreated schizophrenia to such an extent that he was not capable of standing trial. Fair enough. He was confined to an institution.

But more than half a decade later, after six years of compulsory government medical treatment, Edwards had recovered enough to be able to be tried. And the wheels of justice moved toward trial.

Although the Court provided him with a lawyer, Edwards soon maintained that he wanted to represent himself.

The right of self-representation is a right typically legally extended to Americans anywhere within the United States (Its wisdom is something else). The legal principle is "...forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so."

In wanting to represent himself, Edwards complained that the court-appointed lawyer was not putting forward the defence that Edwards wanted him to. He also maintained that the lawyer was not sharing information with him on the law related to his defence.

In making his arguments Edwards filed what were described by the US Supreme Court as "a number" of "incoherent" court documents but a number of others that were also "intelligible." And still, throughout court proceedings, Edwards was described as "respectful and compliant" to the Court in the proceedings.

Edwards was denied the right to represent himself and was convicted. This year his case made it to the US’s highest court.

Notwithstanding that he had made some intelligible written submissions and his respectful and compliant demeanour, mindful of the disability suffered by the defendant, the majority of the court would not allow him to represent himself.

To come to that conclusion, they decided that it would deprive Edwards of the right to exercise his individual discretion because there was a risk that by allowing him to represent himself he could in fact undermine his own dignity. It salved its conscience with the proposition that by preventing this accused from exercising his right to represent himself it was on balance, protecting that dignity.

They said, "...given that defendant's uncertain mental state, the spectacle that could well result from his self-representation at trial is at least as likely to prove humiliating as ennobling."

The minority consisting of the two most conservative justices of the Court disagreed and found that the fundamental principle animating the decision in these circumstances was to be that course which would allow the individual best to exercise his own individual autonomy and that was what the principles of individual equality truly relied on. “We could surely choose worse than "fulfillment of human dignity." They said.

They reiterated that, “... respect for the individual which is the lifeblood of the law." “What the Constitution requires...is that a defendant be given the right to challenge the State's case against him using the arguments he sees fit.”

So this is a case in which two basic principles collided. The majority felt that to preserved Edwards’ dignity, the courts should preclude him from having the right to self-representation, regardless of what his own autonomous interests might be. The minority, on the other hand found that the fundamental value was Edwards’ own independence, on his own hook to make his own decisions and take his own chances.

To me that’s a tough choice. But in this case it would be hard to shake me from the opinion that the two minority, conservative, judges were truly expressing the best and highest traditions of the principle.