Human Rights in Education - When "Meaningful" is "Good Enough"

We've discussed the issue of human rights in education a fair bit, but what of those students whose behavioral challenges really do create an “unacceptable safety risk" to themselves or others?

In September 2019, the Ontario Human Rights Tribunal dismissed a complaint alleging that a school board had discriminated against a Grade 2 student with Autism Spectrum Disorder (ASD) and a learning disability.

Shortly after starting school in a French Immersion program a behaviour plan was implemented for the young student, which appeared adequate until Grade 2.

Unfortunately, the behavioural problems escalated, resulting in the school developing several strategies, including assigning two educational assistants. Things deteriorated from there; in addition to eloping from the classroom, he repeatedly threatened and attacked staff and other students, resulting in multiple injuries. In October 2018, he repeatedly hit an educational assistant ("EA"), giving her a concussion and resulting in her being off work for an extended period of time, following which some staff invoked their right to refuse unsafe work and other parents complained about safety risk to their children.

The student was suspended pending investigation of the incident with the EA and subsequently expelled from the French Immersion school only, which decision was upheld following an internal review process on the basis that his continued presence at the school created an “unacceptable safety risk".

The school board developed what they referred to as a “Loop of School” plan, involving a gradual re-introduction to the classroom. It provided for the student to be moved from the French Immersion school to his neighbourhood school, but not only was the mother unwilling to have her son change schools*,  she would not accept any plan that did not include the provision of “Tier 3 ABA,” (ABA provided in a clinical setting), arguing this was necessary to allow her son to access education.

The Human Rights Tribunal found that the family had proven prima facie** discrimination (as the student no loner had meaningful access to education owing to his increasing dysregulation), but rejected the argument that that his dysregulation was caused by the school’s failure to provide ABA in the classroom, given that meaningful access to education had been provided during the first part of Grade 2 and during a period of home instruction immediately following the suspension without implementing an ABA program.

Although school boards are required to offer students with ASD special education programs, including programs using ABA methods “where appropriate,” the Tribunal didn't accept that “Tier 3 ABA” services in a regular classroom setting were necessary for the student to access education.

It also found that that, prior to the student’s expulsion, the Board had accommodated him to the point of "undue hardship** and despite taking various steps to deal with his increasing dysregulation, the student ultimately posed an unacceptable safety risk to staff, students and himself.

Gradual re-introduction to school was a necessary and reasonable component of the Board's plan and although "reasonable programming alternatives" (such as home instruction or a special education class at his neighbourhood school) had been offered to the student during the expulsion, these had been rejected by the mother.

Turning to the conduct of the student’s mother, the Tribunal stated:

In rejecting the Loop of School plan, Ms. Kahn failed in her obligation to co-operate in the accommodation process. In so finding, I note that parents do not have the right to dictate the accommodations which their children will be provided with to access education. While parents do have the right to provide input as part of the accommodation process – which Ms. Kahn did in this case – they must accept reasonable accommodations offered by the school board.

Thus, the Tribunal found that “the applicant failed to engage in the accommodation process in any meaningful way…[and] failed to accept reasonable accommodations offered by the respondent”, resulting in the application being dismissed.

Although largely based on its specific facts, the decision does provide some helpful guidance on the types of accommodations that school boards should be expected to provide to ensure "meaningful access" to education and clearly reminds us that a student seeking accommodation is entitled to "reasonable" – as opposed to "preferred" – accommodations.

So, what do you think? Did the Ontario Human Rights Tribunal "get it right"?

* Apparently, there was a little more going on behind the scenes, as the decision indicates that the family also wanted "childcare expenses" to be covered by the school board.

** You can find an explanation of both these terms in a previous post, "The Law on Human Rights and Employment in Nova Scotia: Part II" (just follow the links).

~  ~  ~

The decision is also interesting for a couple of additional issues discussed (whether the Human Rights adjudicator was "biased" due to his previous practice providing legal services to school boards in the areas of special education” and the effect of specific negative interactions between the mother and school personnel); however, these will be discussed in a separate post.

Spell it With Me Now ... A-C-C-O-M-M-O-D-A-T-I-O-N-S

For your human rights in employment education and entertainment today, I offer a little story about a pizza shop in Utah that had to pay out 'big dough' for failing to provide reasonable accommodations to an employee with Down Syndrome. 

Actually, from my (and perhaps your) point of view, it's even worse than your that - this wasn't just your garden variety failure to accommodate case - this particular employee had "happily did his job for more than five months with 'an independently employed and insured job coach* to assist him'.” 

Or, at least he had until an operating partner of the company saw him working with his coach, and ordered him fired.

Seriously? Some people companies people will never learn.

See, even though individuals with disabilities living in Utah do not have the benefit of the Canadian Charter of Rights and Freedoms (or, more particularly, sec. 15 thereof) or any of Canada's federal or provincial human rights legislation, they do (as do all residents of the US) have the benefit of the the Americans With Disabilities Act (“ADA”).

The ADA is one of America's most comprehensive pieces of civil rights legislation that prohibits discrimination and guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of American life -- to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services...

To be protected by the ADA, one must have a disability, which is defined by the ADA as a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment. The ADA does not specifically name all of the impairments that are covered.

Sound familiar?

However, unlike Canadians, Americans also have the benefit of the US' Equal Employment Opportunity Commission ("the EEOC"). the organization that enforces the ADA in the employment context; meaning you bring your employment complaint to them and, if they think it is justified, they will sue the employer on your behalf. Making them, kind of, sort of like a human rights commission solely for employment issues.

At any rate, thanks to the fine work of the EEOC, Papa John's has not only 'agreed' to pay that employee damages in the amount of $125,000, but also to “review its equal employment opportunity policies, conduct training for management and human resources employees for its restaurants in Utah, and establish a new recruitment program for individuals with disabilities in Utah.”

The take-away(s) of the story for Papa John's (and all Canadian and American employers) is that

• employers must provide "reasonable accommodations" to persons with disabilities and "engage in an interactive process to determine if an accommodation is reasonable yet not burdensome"; and
• a long-term "independently employed and insured job coach" might just be a "reasonable accommodation" for a person with an intellectual disability.

Or, to put it another way, what he said:

“Employers must understand that they cannot refuse to provide an accommodation to individuals with intellectual disabilities. … Employers should embrace workers like Scott who work with such joy. I want employers to know that their obligation to provide a reasonable accommodation includes allowing a job coach at the workplace, if needed, absent undue hardship.”

* Which subject (that being "an independently employed and insured job coach to assist him") could be the subject of a blawg post all by itself, says she, as she continues to toil away at accessing funding for just such a beast for her own daughter.

To Disclose or Not Disclose - Human Rights in the Workplace

I recently listened to an audiotape of a panel presentation entitled "Learning to Accommodate: A Step-By-Step Guide to Accommodating Employees with Learning and Intellectual Disabilities".

All in all, it was good and useful presentation - the Panel consisted of a former member of the CACL, a psychologist who specialized in learning disabilities, a law professor who specialized in labour and human rights issues and two lawyers - one who worked mostly for employers and one whom brought forward court cases on behalf of employees.

They did their best to represent all sides of the issue ... or should I say issues, given that it dealt with both employees with intellectual challenges and those with learning disabilities, two very different situations.

I have posted a couple of times on the issue of human rights in the workplace back in 2008 - 2009, but we haven't looked at the issue since. Before we go on, you might want to go back and read those old posts, just to give you a sense of how the human rights issue are dealt with in an employment context.

The one thing that struck me about this recent prensentation and that I wanted to share with you is the issue of whether an employee is obligated to disclose their disability to an employer, either in the hiring process or as a hired employee. I don't believe I touched on this issue back in 2008-2009 and that's too bad because it really is a very important dilemna that many employees and job-seekers face.

As we discussed previously, pursuant to both the Nova Scotia Human Rights Act and the Canadian Human Rights Act, employers are obligated to "accommodate" an employee with a disability. You can read more of exactly what this duty of accommodation requires an employer to do (and not to) here.* But the question for us today is this: How can an employer be expected to accommodate an employee if it is kept in the dark as to the employee's disabilities?

Sure, some disabilities are obvious to the naked eye but many are invisible. And even in those situations where the disability (and accommodations required) are obvious, can we automatically assume that means that all of the employee's needs will always be completely obvious?

In the situation in this video, the employer's discriminaiton is pretty blatant. The woman is in a wheelchair. The drafting table and the material on the shelves are too high for her to reach. It isn't rocket science (or, at least, it shouldn't be). But what if a physically challenged employee is also dealing with other issues that are not so obvious, such as fatigue or depression that effect their employment needs?

The bottom line is this: How can an employer legitimately be expected (and legally required) to accommodate disabilities of which it is unaware?

An employer has a has a duty to investigate the availability of accommodation options only IF it knows or should know of the person's disability and the need for accommodation. If the employer is legitimately unaware of the disability, there simply is no duty to accommodate, although one might arise later IF the disability comes to the employer's attention.

The case law is replete with instances of failed human rights claims where the employer never disclosed any information that would lead the employer to think they had a disability; often, even in cases, where the employer noted difficulties and went out of its way to enquire what it could do or offer the employee to help them meet the demands of the job.

And, really, can we honestly say that it should be any other way? You simply can't be expected (or obligated) to accommodate a disability you are totally unaware of. That is only fair.

I do realize that for many individuals with disabilities the decision as to whether or not to disclose a disability (and the accommodations required) to an employer or potential employer is a very difficult one. There are many factors to consider.

Stuttering as a Disability

UPDATE: Apparently we now have some US lawyers agreeing that yes, yes indeed, stuttering can indeed be a disability under the terms of the American with Disabilities Act (ADA). Good to know. 

What says you? Is stuttering a disability? And, if so, should it be "legally protected"?

It seems to me that this should have a fairly easy common sense answer. And if it doesn't, it should.

Of course, stuttering is a disability from a legal point of view.

Section 10 (1) of the Code defines “disability” as follows:
“because of disability” means for the reason that the person has or has had, or is believed to have or have had,

1. any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

But I think worrying about a potential "widespread backlash against all persons with disabilities" is a bit of fear mongering an over-reaction. Why?

All you need do is check out the comments at the end of the article to find a very common sense response.

Of course it's a disability, but not one that should ever override a common sense BFOQ. [Ed. I believe that is meant to read BFOR - "bona fide occupational requirement" **.] But if a person is denied a position they could handle because a stutter "isn't pretty" then that's discrimination. 

** We've discussed this very same issue many years ago and although I didn't use the commonly-accepted terminology at the time, this is exactly what I was talking about. 

Duty to accommodate meet bona fide occupational requirements.

The duty to accommodate can include things like altering the physical workplace, redefining a job description or altering the work schedule. If a driver's license is a job requirement, for example, and the interviewee doesn't have one, there is a duty on the employer to enquire why, to see if a disability is behind it ie) epilepsy. In which case the employer would have to consider what alternations he might make so that driving would not be necessary or whether he could change the job description to give the driving portion to another employee.

And it's important to realize that it would be a lot harder to accommodate certain disabilities in some jobs than in others. For example, is it possible to accommodate a blind person who seeks to be an editor? In all honesty, even with technology, I don't know. Maybe it is, maybe it isn't.

What about a person in a wheelchair, with no use of her arms or legs, who dreams of being a firefigher? There might be some job back at the fire station that she could conceivably perform but it would be a little hard to picture her actually out there fighting a fire, wouldn't it?

Groundbreaking Ontario Human Rights Special Education Decision

Very interesting news here:

For what appears to be the first time, a Human Rights Tribunal has applied the principles set out by the Supreme Court of Canada (SCC) in the recent human rights/special education case of  Moore v. British Columbia (Education) 2012 SCC 61 (Moore). You can find a discussion of the SCC decision here.

The mother in RB v Keewatin-Patricia District School Board approached the Ontario Human Rights Tribunal following a series of incidents and failures to appropriately accommodate her child, who had been diagnosed with Pervasive Developmental Delay Not Otherwise Specified (“PDD NOS”). These incidents had repeatedly been raised by the parent and escalated to the School Board level without any resolution.

Starting in Kindergarten, the child had been provided with an IEP (aka IPP) and Educational Assistant (EA) support. However, his EA support was cut quite significantly in Grade 2, despite the parent's objections. There were also allegations that the child's EA was being inappropriately forceful with him. Issues continued throughout Grade 3, including segregation in and outside of the classroom and teasing and bullying by other students. Not surprisingly, behaviour issues intensified.

Eventually the child was "excluded" (presumably suspended) from school by the Principal for inappropriate behaviour, including swearing, using profanity, spitting, yelling, cutting a child’s sweater, stomping on a child’s leg, throwing material and being generally non-compliant. The parent was advised that he could not return to school until a psychological assessment was completed by the Board's school psychologist and the Board was confident that his return would not compromise his or other students' physical and mental well-being.

During this time, he was provided with instruction from an itinerant teacher three hours per week. The parent supplemented this instruction and due to her good rapport with the itinerant teacher, the child made significant academic gains, going from reading at level 2 when he was "excluded" to level 7 four months later.

But in an interesting twist, not only had the child been *excluded* from school for several months in Grade 3, but the mother had also withdrawn him from school the previous year for a period of time. Get the picture?

I would like to say that such fact situations are rare. Sadly, you and I both know they aren't. In fact, I can think of three very similar situations right here in Nova Scotia, without even giving the matter much thought. The difference, sadly for us in Nova Scotia, is in how the local situations ended.

At any rate, the Ontario Human Rights Tribunal found several failures to accommodate the student, including

When Words Fail Me ...

This video speaks for itself.

But the saddest scariest thing is this woman is not alone. She may be the only one brave enough to actually type and deliver such a letter, but I can guarantee you she's not the only one who thinks such thoughts.




Perhaps most of those who do would never suggest that a child, any child, should be euthanized or his "non-retarded body parts" donated to science. But they wouldn't hesitate to express their belief that such children should not be going to their neighbourhood schools, should not be participating in the same extracuricular activities as their "normal" children do; perhaps, even should not be taking up scarce dollars in our healthcare system.

We would like to believe that human beings are inherently good. That, most of the time, if we just give them the chance, they will do the "right thing".  Maybe we're right - maybe most are.

But something like this has to make a parent wonder how many more monsters are hiding in the darkness or behind the annonimity of their keyboards. And shudder at the thought.

H/T to Krista Lettues for the video

Cross-posted at Free Falling

Shameful

shame·ful/ˈSHāmfəl/
Adjective
Worthy of or causing shame or disgrace.
Synonyms
disgraceful - ignominious - scandalous - infamous

The word hardly does justice to my thoughts and feelings when I read this earlier today.

The federal government is asking the Supreme Court to overturn a court ruling that would force it to pay the cost of caring for a severely disabled aboriginal teenager living at home. 

The precedent-setting case involves an 18-year-old on the Pictou Landing reserve in Nova Scotia and his principal caregiver mother — who herself suffered a debilitating stroke in 2010. 

Last month the Federal Court ruled that Ottawa was wrong to cover only a fraction of the cost of care for Jeremy Meawasige, who suffers from cerebral palsy and autism, among other disabilities.

Really? Seriously?? I mean, haven't they done enough already?

The federal government really wants to continue fighting this when they've already lost twice in court?

They really want to continue fighting this when the House of Commons unanimously voted in favour of adopting Jordan's Principle in 2005 and federal departments publicly pledged to respect Jordan's Principle in their policies?

They really want to fight this when the Federal Court has found that Ottawa's unlawful failure to cover only $2,200 of the $8,200 a month cost of Jeremy's care leaves his family with no other option than institutionalization and separation from his mother and his community?

~  ~  ~  ~

By the way, want to hear a funny?

A departmental spokeswoman for Aboriginal Affairs said the government continues to make the health and safety of First Nations a priority. 

“The government of Canada will work with the Pictou Landing First Nation for the reimbursement of home-care costs incurred related to Mr. Meawasige’s need, however following careful consideration we have decided to appeal the decision,” Genevieve Guibert said in an e-mail. 

“Canada is committed to working with the community and the province to ensure appropriate supports are in place for the family moving forward.”

Oh, okay, now I get it.

Run along, it's all taken care of now.

Don't you see - the government is all about working with the First Nations to reimburse Jeremy's home care costs.

Which, of course, would completely explain the how and why behind the Canadian government - your and my federal government - spending over $3 million to date just so they won't have to pay the $8,200 per month required to keep Jeremy at home.

Ever wonder what's really going on?

“We think that after these cases go through, the federal government’s programs for first nations people will need a drastic overhaul in order to deliver services equal to what other Canadians receive,” said Kent Elson, a Toronto lawyer who is involved in the policing and special education challenges. 

But if the government wins, recently won powers for first nations to launch human rights complaints would be severely restricted, the acting head of the Canadian Human Rights Commission has said.

“We think this is one of the most important human rights issues this decade,” Mr. Elson added.

And to think that people continue to ask me, with a straight face, nonetheless, why I have never (and could never picture myself) voted Conservative.

Now that's brazen.

He's Baaaaack...

UPDATE: The Assembly of First Nations' Response

I've written on more than one occasion about the discrimination faced by Jeremy Meawasige (and other First Nations' children) like him.

Let's say it altogether, shall we?

J-O-R-D-A-N-'S  P-R-I-N-C-I-P-L-E

Now that wasn't that so hard, was it?

For once, I am pleased to report good news. For now anyway. *

OTTAWA — The Federal Court has ordered Ottawa to reimburse a First Nations band for the cost of taking care of a severely disabled teenager living at home — a ruling that could have widespread implications for federal social services on reserves. 

“It sets an important precedent to ensure all First Nations children across Canada are given equal access to essential government services,” said Paul Champ, the lawyer for the boy’s mother. 

The case centres around 18-year-old Jeremy Meawasige, who has hydrocephalus, cerebral palsy, spinal curvature and autism, is self-abusive and can only communicate with his mother, Maurina Beadle.

You might recall that federal officials have been arguing (both in and out of court) that they were in complete compliance with Jordan's Principle and providing funding in line with provincial programs. But the court found that what they had refused to hadn't taken into account was "provincial provisions for special circumstances".

Of course, some of us might call that very proposition into question too - since when, exactly, has there been "provincial provisions for special circumstances", you ask?

Good question.

And up until the 2011 decision of the Nova Scotia Supreme Court in Boudreau, it appeared that the answer was that there were no "provincial provisions for special circumstances", at least not in Nova Scotia.

["As you know the Direct Family Support program bases its respite amount on $10 per hour. Unfortunately Services for Persons with Disabilities (SPD) staff have not been authorized to increase this hourly amount at this time. In regards to the possibility of increasing your monthly amount, in order that you can use the additional funding to pay extra per hour, SPD has not been authorized to allow any increases which result in payments exceeding $2200 per month. As Brian’s current respite allowance already exceeds $2200 per month no increase may be authorized at this time."]

However, Boudreau, as you will recall, not only settled the question of whether the Services for Persons with Disabilities program is authorized by legislation, it also made it clear that there is nothing voluntary about the SPD program  (once eligibility for services has been shown/accepted, a legal entitlement arises automatically) and, as with any other “assistance” under the Social Assistance Act, eligibility triggers not just a right to that assistance but one that is to be immediately provided.

Even better, the court in Boudreau found that, generally, the SPD Program falls under the ‘special needs assistance’ provisions in the Social Assistance Act and, in situations where the legislation does not stipulate a maximum amount for such assistance, the Department should be paying “reasonable” amounts sufficient to meet the need.

And so it was, with a stroke of Justice Rosinski's pen in the Boudreau decision, that the Province could no longer rely on the November, 2009 directive from the Director of the SPD program limiting the Direct Family Support program approval levels for respite funding to $2200 per month.

And that decision in Boudreau, you see, was exactly what Maurina Beadle and the Pictou Landing Band Council relied on in their successful judicial review application for Jeremy Meawasig.

Back to that good news I mentioned in the beginning of this post - the Federal Court ruling now obligates Ottawa to uphold Jordan’s principle ... in more than just principle, one might say.

“Jordan’s principle is not to be narrowly interpreted", Justice Leonard Mandamin warned.

And although Mr. Justice Mandamin didn't say exactly how much the federal government should be paying to the Pictou Landing band council, after noting that Jeremy's mother is often the only one who is able to understand and communicate with him and Jeremy's only other option would be institutionalization and separation from his mother and community, the court indicated that it should be a lot more than the $2,200 it is already paying. It is expected that this decision will give Jeremy's mother and the band council grounds to demand a full reimbursement.

There's more to this story, of course.

Go read the piece in the Chronicle Herald to see the reaction of Jeremy’s 23-year-old brother, Jonavan Meawasige, who has taken on much of Jeremy's home care over the past two years, while also trying to fish for a living and the expected implications for other First Nations children, including in a separate case on First Nations child welfare in front of the Canadian Human Rights Tribunal, where it is being argued that First Nations children have the right to welfare services on par with what provincial governments offer off-reserve children.

Well, imagine that. Now what do you suppose they will think of next?

* Hoping and praying this decision won't get appealed by the federal government. And that our provincial government will stop trying to do an end run around the Bourdreau decision, telling families that it has no absolutely no application to their particular case, when that is, at a minimum, very debatable.

A Rose By Any Other Name ...

I must say that I find it amazing how closely this list of changes to disciplinary policies that Mississippi schools have agreed to due to "discriminatory" practices against black students mirror exactly the changes that need to be made to accommodate students with disabilities.

Leaving me to wonder ... must we paint our children's skin a different colour in order to have their constitutionally-protected rights recognized and respected?

'To Fight the Unbeatable Foe'

UPDATE: Advocacy wins the day. Now, for heaven's sake, please let these ladies live in peace.

To dream the impossible dream
To fight the unbeatable foe
To bear with unbearable sorrow
To run where the brave dare not go 

These were the words that came to my mind today when I read that a ReMax real estate agent is appealing the Town of Bridgewater's decision to change its zoning bylaws to allow LaHave Manor Corp. to open a new group home.

You might recall last Spring when the LeHave Corporation attempted to purchase a property that was ideally-suited for use as a group home by three women that have lived together for over 18 years. It seemed like a great idea until neighbours started complaining and the Town decided that the property couldn't become a group home because it violated zoning bylaws -bylaws that allowed for "low density residential housing", also known as single family dwellings. Apparently, the Town viewed three people living together in the community as an "institution".

But just when we thought saner heads had prevailed and all was well (the Town changed its by-laws to allow the group home to be opened), we now come to find out that Ron Bullen, an agent with RE/MAX South Shore Realty, along with a merry group of fellow real estate agents, has filed an appeal of the Town`s decision with the Nova Scotia Utility and Review Board.

The reason? Apparently they are afraid that the group home will cause real estate values in the "upscale neighbourhood" to fall.

Seriously?

To right the unrightable wrong
To love pure and chaste from afar
To try when your arms are too weary
To reach the unreachable star

One of the better lines in the article has to belong to local resident Brian Tennyson, who stateed at a public meeting that he's not opposed to the zoning change because it's a "residential-care facility", but because "councillors and staff were manipulated, pressured and intimidated by LaHave Manor Corp".

Hey, you might just be on to something there, Mr. Tennyson. Town Council might just have been intimidated. And some things are, indeed, worthy of intimidation.

Such as the public statements recently made by the Minister of Community Services to the effect that persons with disabilities have the right to live in the community and if you disagree ... well, that's too bad.

Also worthy of intimidation? The fact that you might just be running afoul of the United Nations' Convention on the Rights of Persons with Disabilities.

"Bridgewater prides itself on being an inclusive community and as such wants to incorporate the intent of the United Nations Convention on the Rights of Persons with Disabilities," the release said. "We acknowledge that the rights of disabled persons are equal to the rights of any other person in our community."

This fight is not, cannot, be over.

Perhaps a few well-placed letters to ReMax letting them know what Nova Scotians think of the actions of their agent in this matter? Perhaps an online petition boycotting ReMax unless this matter is resolved?

And, if anyone knows the names of the other real estate agents involved, I would love to hear them.

Breaking News

"Adequate special education, therefore, is not a dispensable luxury."

The Supreme Court of Canada (SCC) released its much-awaited decision yesterday in Moore v. BC (the LD case out of BC) and I am pleased to report that the parents were substantially successful. "Substantially" because although the finding of discrimination was upheld against the District (aka the School Bd), it was not upheld against the Province.

But let's take a look at the finding against the District first.

With regard to the issue of whether "special education" is a service that is “customarily available to the public" (and thus protected under the BC human rights legislation) the Court found that "special education is not the service, it is the means by which those students get meaningful access to the general education services available to all students" (emphasis added).

To define the service only as ‘special education’ would relieve both the Province and the District of their duty to ensure that no student is excluded from the benefit of the education system by virtue of their disability and risked descending into the kind of “separate but equal” approach that was so famously discarded in the racial integration case of Brown v. Board of Education of Topeka. Further, the court noted that, much as I stated in the previous blawg post, to so find would mean that the District could cut all special needs programs and be immune from a claim of discrimination.

As to what constitutes discrimination in this context, the Court found that discrimination will exist if the evidence demonstrates that the government failed to deliver the mandate and objectives of public education such that a given student is denied meaningful access to the service based on a protected ground.

In this case, prima facie discrimination was found on the basis of the insufficient intensive remediation provided for Jeffrey’s learning disability, which was necessary for him to access the education he was entitled to. It was the combination of the clear recognition of Jeffrey's need for intensive remediation in order to have meaningful access to education, the closing of the intensive program and the fact that the Jeffrey's parents were told that these services could not otherwise be provided by the District that justified the finding that the failure of the District to meet Jeffrey’s educational needs constituted discrimination.

Although the District attempted to argue that the decision to end the program was justified for financial reasons (and just how often have we heard that one in one form or another?), the SCC found that although the fact that the District was facing serious financial constraints was a relevant consideration, accommodation was not a question of “mere efficiency” and disproportionate cuts had been made to special needs programs, while some discretionary programs had been retained, despite their similar cost.

In that regard, the Court agreed with the dissenting judgment in the Court of Appeal, that “without undermining the educational value of the [other program], such specialized and discretionary initiatives cannot be compared with the accommodations necessary in order to make the core curriculum accessible to severely learning disabled students”.

More significantly, the District had not undertaken any assessment, financial or otherwise, of what alternatives were or could be reasonably available to accommodate special needs students if the intensive program was ended.

The failure to consider financial alternatives completely undermines what is, in essence, the District’s argument, namely that it was justified in providing no meaningful access to an education for Jeffrey because it had no economic choice. In order to decide that it had no other choice, it had at least to consider what those other choices were.
[para. 52]

Significantly, no discrimination was found on the part of the Province even though the District’s budgetary crisis was created, at least in part, by the Province’s funding shortfalls as the Tribunal had found that it was the District that had failed to properly consider the consequences of closing the intensive program or how to accommodate the affected students.

In the Court's opinion, the evidence about the provincial funding regime was too remote to demonstrate discrimination against Jeffery and there was no particular reason to think that those funding mechanisms could not be retained in some form while still ensuring that SLD students received adequate support. It was found to be entirely legitimate for the Province to choose a block funding mechanism in order to ensure that districts do not have an "incentive" to over-report SLD students, so long as it also complies with its human rights obligations.

I highlight this as one of the possible areas of concern around this decision. Don't get me wrong, as noted, courts far too rarely intervene in cases involving educational policy (deferring to the schools' so-called "experts" is all too common in this area) so this decision is HUGE, but, unfortunately, it doesn't appear like it will yield much ammunition when it comes to the actual funding of special education services.

The source of all public school funding is, of course, the provincial government and the SCC clearly states that "block funding" of special education services is acceptable. Although we may now have an argument to stop any erosion of such ear-marked block funding, the sad fact is we all know that special ed is woefully under-funded and school boards often significantly top up the provincially-allocated special ed funding.

Although not a blanket prohibition on the cutting of special ed services at the Board level, where the decision is extremely valuable is in undercutting any attempt by school boards to take out their legitimate budget woes on special ed programming, at least not unless unless

• any cuts made to special ed programs are proportionate with cuts in other areas;
• other discretionary programs are not saved at the expense of special ed programming; and
• serious consideration has been given to the consequences of cuts to such programming and how students requiring the programs and services will be accommodated.

Commentary is, of course, appearing fast and furious around this decision. And while some of it is, indeed, upsetting, opinions of editorial boards aside, this decision should put lie to the (never legitimate) argument that once you let special needs students through the doors, their programming is as susceptible to cuts as any other.

As an aside, I offer you my absolute favourite line from this decision and one which will, no doubt, be quoted ad nauseum by future disability advocates:

Adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children ...

SCC To Weigh In on Schools' Duty to Accommodate

We're going to be taking a look at a few different human rights issues over the next little while ... mainly because I seem to have collected a number of interesting tidbits on such issues.

So let's start with one of the bigger human rights stories on the legal landscape.

Some of you are no doubt familiar with an education
case out of British Columbia from a few years ago,
Moore v.British Columbia, where a student challenged
both the provincial Ministry of Education and a school board for not providing students with learning disabilities with appropriate accommodations.

From an advocate's point of view, I find this case particularly interesting for two reasons: first, the bases on which the Human Rights Tribunal found both systemic and individual discrimination on the part of both the school board and the Province and, second, the courts' reasoning in overturning that decision (why they decided that no discrimination had, in fact, occurred). And although it might sound like I've just said the same thing twice, they are two very separate issues, as you will see.

Jeffrey Moore had a severe learning disability (SLD) but the very year he was found eligible to attend an intensive program for students with severe learning disabilities, it was cut for financial reasons. The services that were subsequently offered were not comparable to what he would have received in the intensive program and his parents later placed Jeffrey in a private school for students with learning disabilities.

The father brought a discrimination claim to the BC Human Rights Tribunal against the Province (the Ministry of Education) and the school board, alleging both individual and systemic discrimination. The Tribunal found in Jeffrey's favour, finding that both the school board and the Ministry of Education had failed to accommodate his needs in the delivery of educational services.

Individual discrimination had occurred when the school board and the Ministry failed to ensure that Jeffery’s disability needs were appropriately accommodated in the school board by not providing him with sufficiently early or appropriately intensive and effective remediation.

Systemic discrimination by the school board had occurred when services were disproportionately cut to SLD students without analyzing the impact on these students or ensuring that there were sufficient alternative services in place.

Systemic discrimination by the Ministry occurred when it under-funded the actual incidence of SLD students by imposing a cap on funding High Incidence/Low Cost disabled students, when it under-funded the Board resulting in significant cuts to services to SLD students, when it focused its monitoring only on spending and fiscal concerns, and when it failed to ensure that early intervention and a range of services for SLD students was mandatory.

Unfortunately, the Ministry and the Board were successful in their judicial review application and the Court of Appeal (CA) dismissed Mr. Moore`s subsequent appeal.

Here's where it starts to get interesting - unlike the Human Rights Tribunal, which had concluded that the service being provided was “educational programs offered by the Ministry and the [school board]” (in other words, public education services offered generally to the broad public), both levels of court found that services for students with disabilities were “special education”, not general education.

Proceeding on that basis, the courts compared Jeffery with other students who received “special education” and concluded that there was no differential treatment because no student receiving “special education” had access to the services that Jeffrey was seeking for during that period of time. In other words, it would appear that as long as you offer absolutely no "appropriate services" for students with LD, all will be right with the world.

This finding turned on the fact that the BC Human Rights Code provides that a person cannot discriminate against another on the basis of disability when that person is delivering a service that is “customarily available to the public”. Thus, the question became whether students with special needs were entitled to only “special education” services without experiencing discrimination or whether they should have the right to receive general education services without experiencing discrimination. [Can you believe we're even having this conversation?]

[The majority of the CA relied on a 2004 decision of the Supreme Court of Canada (SCC) that some of you might be familiar with (Auton v. British Columbia), in which the issue was whether the province's failure to fund applied behavioral therapy for autism violated the equality provisions of the Charter. In Auton, the SCC had held that a finding of discrimination under sec. 15(1) of the Charter must relate to a benefit or burden imposed by law - it cannot be based upon discrimination in the provision of services not provided under legislation as to do so is tantamount to dictating to the government what services should be provided.]*

The Moores appealed to the SCC, where the Canadian Association for Community Living (one of the intervenors in the case) argued that to find that students with disabilities were entitled to a separate and different “special education” service would be contrary both to the goals of BC’s Human Rights Code and the United Nations Convention on the Rights of Persons with Disabilities, both of which promote inclusive education. CACL also argued that a finding that students with disabilities were entitled to a separate and different “special education” would perpetuate the historical exclusion and disadvantage experienced by such students.

Other questions before the SCC include the use of a comparator group analysis in human rights' duty to accommodate claims and the limits on the scope of remedies that tribunals can order. Unfortunately, we can't go into those issues today, although I will note that what group the person claiming discrimination is compared to (known as comparator group analysis) can and has made a huge difference in whether or not discrimination will be found.

The Moore case was argued in March of this year and disability advocates are anxiously awaiting the SCC's decision in this case, as it should  have a significant impact on future human rights claims. Let's just hope they get it right.

* It should be noted that there was a dissenting opinion in the CA - in fact the majority of the decision (the first 162 paragraphs) is written by the dissenting judge with the majority judgment being a mere 25 paragraphs. Although unfortunately, in this case, size really doesn't matter, anyone with a legal bent might just "enjoy" reading those first 162 paragraphs or at least find them instructive.

'Unfit Solely Based on Their Disability'

A few years ago, when a lot of my work involved digesting child protection cases, I toyed with the idea of writing a blawg post on the issue of parents with disabilities whose children had been taken into care by the Province. 

Actually, I did more than toy with the idea; I began keeping track of those type of cases when they crossed my desk and started actively searching for ones from other provinces. In fact, I may still have that research around here somewhere although I would most likely be hard pressed to find it now.

Obviously, I never did get to that blawg post. Mainly because it became clear that the issue was huge and it was going to take no small amount of research and writing to put something together. And I was, in all fairness. rather occupied with other things at the time.

But the issue still fascinates (and disturbs) me from both a legal and parental point of view.

The test in such a situation is always (supposedly) the "best interests" of the child. Parents do not have a right to parent their children. Rather, children have the same basic rights and fundamental freedoms as adults and the additional right "to special safeguards and assistance in the preservation" of their rights and freedoms. And the presumption is that a child's needs will be best met in the care of his or her own family. 

But a presumption is not a certainty. Thus, parents are given legal "responsibility for the care and supervision of their children" and children are only to be removed from that supervision "when all other measures are inappropriate".

So at what point does it actually become the case that parents, due to their disability, cannot properly care for their child? And is it possible that children would ever be taken away from their parents due to some form of systemic discrimination against persons with disabilities?

But then again, can it even be that simple?

There are physical disabilities and there are intellectual disabilities. And there are individuals who have both. And, of course, most importantly, each case will should turn on its own unique fact situation, right?

All of which takes me to this report out of the US setting out the following issue:

A federal agency is warning the White House that more protections are needed to ensure the parental rights of those with disabilities.

Even as an increasing number of Americans with special needs choose to become parents, laws across the country routinely undermine their rights, according to a National Council on Disability report which was sent to President Barack Obama on Thursday.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

The key, of course, is found in that last paragraph.

In two-thirds of states, courts are allowed to deem a parent unfit solely based on their disability. And, disability can legally be taken into account in every state when assessing what’s in the best interest of a child, the council found.

I have no issue with the second sentence - that "disability can legally be taken into account in every state when assessing what’s in the best interest of a child".

But it's one thing to take disability into account (just as you would take into account other factors, such as the support available to a family or parenting style) and completely another to disqualify a person from parenting their own child just because they have a disability. That, I would submit (and I'm sure you would agree) smacks of discrimination.

Apparently the National Council on Disability agrees. And the numbers are staggering.

Currently, some 6.1 million children in the United States have parents with disabilities. They are significantly more likely than other kids to be forcibly separated from their parents, the federal agency found.

Estimates suggest that among parents with intellectual disabilities, removal rates are as high as 80 percent. Similarly high rates are seen among parents with psychiatric disabilities.

Meanwhile, the council found that people with special needs are more likely to lose custody of their children after divorce and have more difficulty adopting kids.

Although I'm not aware of any Canadian province providing that the courts are allowed to deem a parent unfit solely based on their disability, I have a hunch that the situation is not that different in this country, albeit on a somewhat smaller scale. And although it would be really interesting to see the numbers for Canada, to the best of my knowledge, no one is actually paying attention. Or, at least, no one is compiling those statistics.

In the US, the National Council on Disability is recommending that new laws be implemented to protect the rights of parents with disabilities and that social services agencies work to better understand and accommodate parents with special needs.

Does that sound like too much to ask?

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.

Our American Friends

South of the border the debate continues on the UN Convention on the Rights of Persons with Disabilities. Is it good? Or is it bad?

Despite bipartisan support for a United Nations disability rights treaty, a group of Republican lawmakers is holding up U.S. Senate consideration of the matter.

The Senate Foreign Relations Committee planned to consider the U.N. Convention on the Rights of Persons with Disabilities last week, but was unable to after Sen. Jim DeMint, R-S.C., and a number of other Republicans reportedly placed a hold on it.

The move effectively squashed efforts by supporters of the treaty to get the U.S. to ratify it before the 22nd anniversary of the Americans with Disabilities Act on Thursday.

While the U.S. initially signed the U.N. Convention in 2009, Senate approval is needed for ratification of the treaty, which calls for greater community access and a better standard of living for people with disabilities worldwide.

Why, you ask?

Why would any part of the American government be reluctant to ratify an international convention recognizing the rights of person with disabilities? Rights which surely must be recognized and held in high esteem in such a great democracy as the US, a shining city uppon a hill?

For the very same reason that the US is hesitant (or outright refuses) to ratify other international conventions, of course.

The delay comes amid opposition from the Home School Legal Defense Association which is urging its members to tell Congress that the treaty “surrenders U.S. sovereignty to unelected U.N. bureaucrats, and will threaten parental control over children with disabilities.”

In a statement to the Capitol Hill newspaper The Hill, a DeMint spokesman said he wanted to delay the treaty over largely similar concerns..

That's right, folks. It just wouldn't do to have anyone else telling them what to do to or [gasp] interfere with their sovereignty.

Although I have to wonder just how well that is working for them.

The failure of the US to join with other nations in taking on international human rights legal obligations has undercut its international leadership on key issues, limiting its influence, its stature, and its credibility in promoting respect for human rights around the world.

And I must admit, I do find this thinking somewhat puzzling.

Sen. DeMint strongly opposes this treaty, as the United States is already the world leader in addressing the needs of the disabled and it’s foolish to think Americans need to sign away our sovereignty to exert our influence around the world.

So let me get this straight ... because the US is the world leader in addressing the needs of the disabled (I wonder what their own people have to say in that regard?) and they can/will continue to exert their influence around the world (now, here is where I get lost ... are they referring to their influence with regard to recognizing the rights of persons with disabilities?) because naturally they will have so much more moral clout around the issue given that they refuse to sign the Convention?

I must say that I find it particularly strange that the HSLDA is such a vocal opponent. Perhaps they are concerned that constitutionally enshrining "the right of persons with disabilities to education" [Art. 24] will somehow interfere with a parent's right to "direct the education of their children and to protect family freedoms."

Oh, wait, now I get it.

There is no doubt that the Obama administration is waiting to see how they do on this convention to push through an entire package of UN treaties—chiefly the UN Convention on the Rights of the Child, CEDAW (the women’s treaty), and the small arms treaty.

The poor souls are afraid. Afraid, I tell ya.

"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.

Happy Days

Remember the story I shared with you last month about what happened when the LeHave Corporation tried to purchase a property in Bridgewaer that was ideally-suited for use as a group home, particularly for three individuals that had lived together for over 18 years?

How afer the neighbours started complaining, the Town of Bridgewater decided that the property couldn't become a group home because that was an "institution", which would violate zoning bylaws that allowed for "low density residential housing" aka single family dwellings?

As I told you then, following a groundswell of public support from across the country and the pointed suggestion that the Town's position might well violate Article 9 and Article 28 of the UN Convention on the Rights of Persons with Disabilities, Bridgewater eventually agreed to change its zoning bylaws to allow the new group home to open.

Well, I'm now very pleased to report that Denice Russell, Melisa Knox and Kim Fairbanks, who have lived together as sisters for 18 years have moved into "Compassion House", as the property is now known. Which made my day feel a little bit brighter.

Go read the story and see for yourself.

And then say those nine words slowly, savouring every one of them ... the UN Convention on the Rights of Persons with Disabilities.

What's Up Your Sleeve?

It looks like the UN Convention on the Rights of Persons with Disabilities might have been put to good use in Nova Scotia this past week.

I've said before that, in my opinion, the best use of that Convention might be in the moral suasion if offers advocates when dealing with government officials. At all levels of government, apparently.

At least that's the way I read the news that Bridgewater has agreed to change its zoning bylaws to allow LaHave Manor Corp. to open a new group home.

In case you're not familiar with the story, the LeHave Corporation intended to purchase a property that was felt to be ideally-suited for use as a group home (single level, wide hallways, open living room and wheelchair-adapted), particularly for three individuals that have lived together for over 18 years. The plan was for these individuals to move together to this home.

Well, that was the plan until neighbours started complaining and the town of Bridgewater decided that the property couldn't become a group home because it violated zoning bylaws. Zoning bylaws that allow for what's known as "low density residential housing". More commonly known as single family dwellings.

Apparently, the Town viewed three people living together in the community as an "institution". Which means that either the Town of Bridgewater has even less of a concept of what community living means than the Dept. of Community Services or they simply didn't want to upset the sensitivities of their good citizens who are more ... sensitive.

At any rate, what I found most interesting about today's new story was these comments from the Town's press release:

"Bridgewater prides itself on being an inclusive community and as such wants to incorporate the intent of the United Nations Convention on the Rights of Persons with Disabilities," the release said. "We acknowledge that the rights of disabled persons are equal to the rights of any other person in our community."

Which makes me think that, in additional to the groundswell of public support from across the country, someone did some smart advocacy work by pointing out to the good Council that, like all levels of government in Canada, it, too, is bound by Article 9 and Article 28 of the UN Convention.

A handy little document to have up your sleeve, no?