#Where's The Bill?

Following up on my last update on the Canada Disability Benefit, I have some more news to share.

According to Disability Without Poverty, during the Committee process a few positive changes have been adopted, including

• 
  indexing the benefit to inflation; 
• a requirement that agreements with provinces and territories be made public;
• a requirement that people with disabilities be meaningfully engaged in developing regulations; and
• requiring the Official Poverty Line to be considered in setting the benefit. 

As for what's next, once Parliament re-opens on January 30, Bill C-22 must be put on the agenda so the the HUMA committee report can be presented and voted on. This vote will move the Bill into Third Reading and eventually the Senate. After the Senate passes Bill C-22 and it receives royal assent, it will become law.

The Regulations

In my mind, the most important of the amendments set out above might just be the requirement that people with disabilities be meaningfully engaged in developing regulations. 

As I've noted before, passing legislation is far from the end of the story. Regulations are always important in that they flesh out the legislation and deal with important details. They often contain some of the meat and the teeth of the law.

However, in this case, they're even more important because unfortunately, the legislation, itself, tells us very little. The proposed legislation isn't much more than a bare bones skeleton.

All we know is that those eligible (nothing tells us who that might be) will be paid a Canada Disability Benefit. [ss. 4-5] 

Other than that, the only other thing of import is that this "benefit" (however much it might be) can't be taken in cases of bankruptcy, garnished if you owe someone money or otherwise be taken away by operation of law. [sec. 9] **

Good news to be sure but .... how much and to whom? Kind of important details, wouldn't you agree? 

Sadly (and ironically), if this legislation became law today, not a single Canadian (with or without a disability) would benefit. It wouldn't even make a good paperweight, given how short it is. 

This is why  the requirement that people with disabilities (and presumably their allies) must be meaningfully engaged in developing the regulations is so crucial.

And time passes.

** Fortunately, this includes the Dept of Community Services. They won't be unable to claw the benefit back. Now that's worth celebrating.

Update on Canada Disability Benefit Act

This past week, MPs unanimously passed the second reading of  Bill C-22, the Canada Disability Act.

This only happened thanks to a lot of work by the disability community in reaching out to MPs to stress the importance of the creation of the Canada Disability Benefit. We all need to be proud of this moment. 

The proposed legislation will now move to the Committee stage, where MPs on the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) will study the Bill and hear from witnesses, people with disabilities, disability groups and others. 

NOTE: Moving forward in this post, I will be using the terms legislation, statute and Act (such as the Canada Disability Act) interchangeably. 

However, there is a lot more work to do before the Bill is passed into law. 

After being considered by the Committee, the Bill will return to the House of Commons for the Report stage and Third Reading debate before its final vote. Only then will it be sent to the Senate where it will go through all the same stages it went through in the House of Commons. 

Inclusion Canada is hoping that it is hoped that the legislation will be passed by Parliament by December 2022 and the Canadian Disability Benefit created quickly in 2023. Unfortunately, even that is far from the end of the story. This is no time to rest on our laurels.

The Devil in the Details

This is the current version of the draft legislation. If you read it carefully, you will see it doesn't tell us much other than a Benefit will be created. We are left wondering who will be eligible, how much individuals will actually receive or if it's a one-time payment or annual benefit, among other things. 

Here's the sticking point. 

Passing legislation can be quite a challenge depending on who/what it benefits and the political makeup of the House. Think minority government. But often, as this is this case, that is far from the end of the story.

Many, many moons ago, I discussed how legislation (in this case, the proposed Canada Disability Act), regulations and policy interact. I suggest you take a quick look at that before we move on to look at what happens after next, after the legislation is finally passed.

Passing legislation is far from the end of the story.

Adult Guardianship Representation in Nova Scotia [Part I]

Adult guardianship has been a very popular topic since this blawg first came into being. But the lay of the land has completely changed as of 12:01 a.m. on December 28, 2017.

Why is that, you ask?

Quite simply, at that time,  a new piece of legislation, the Adult Capacity and Decision-Making Act, came into force. This new legislation has significantly changed the scope, extent and meaning of guardianship in Nova Scotia.

How's that, you ask?

First off,  not only does the word "guardian" not appear in the legislation's title, but you won't find it or the tern "incompetent person" anywhere in the text of the legislation, either. Meaning that those of us who were guardians a mere few days ago were magically transformed into "representatives" on the morning of December 29th.

Although I believe that change in terminology is important (will anyone even know what you're talking about when you say you are someone's representative?), it is only the most inconsequential of the changes this legislation brings.

Although the  government engaged in a consultation process (both prior to and after drafting the new legislation), many felt the process was lacking and should have been more extensive, so as to reach all stakeholders (meaning all  the individuals working with and, more importantly, affected by the legislation).

I believe some of these concerns are legitimate. Personally, although heavily involved in the second round of consultation process (and that, really, only by accident), it troubles me to say that I saw very few positive changes come from that process.

I am only one of many who have publicly expressed their concerns with the new legislation; however, I must admit that I find it somewhat ironic that my concerns tend to be close to the polar opposite of those expressed by many others.

But before we go on to examine the new legislation (and my concerns) in more detail, I would like to take a look back.

I'm Not Sure Those Words Mean What You Think They Mean ...

I will definitely have more to say about the Province's proposed new adult guardianship legislation, Adult Capacity and Decision-Making Act, over the next few weeks, but for now I just want to point out what happens when Ministers of the Crown might not have a complete grasp on all the complex legal issues they are responsible for.

Two comments made recently by Justice Minister Mark Furey with respect to the proposed legislation have me a little concerned.

Although the Minister is certainly correct when he states that our current legislation, the Incompetent Persons Act takes an “all or nothing” approach, giving complete control to a guardian for all aspects of a person’s decision-making and I agree that the new legislation is "more progressive”, my concern is that his comment immediately following; namely, that the new Act includes a “presumption of capacity”, could definitely be misleading to some.

Although, unlike the proposed legislation, the Incompetent Persons Act does not clearly state that "an adult is presumed to have capacity, unless the contrary is clearly", this has always been the state of the law at common law. "Common law" simply means judge-made law and it is very bit as valid as legislation, unless some piece of legislation overrides it.

This means that even though our current legislation doesn't explicitly state it, everyone over the age of 19 years in this Province is already presumed to have capacity (or be competent) and for the past several hundred years, an applicant (a person seeking to be appointed as guardian) must prove that an adult is not competent before a guardianship order will be granted.

My second issue with the Minister's comments is that "experts would asses the adult’s capacity to make decisions and the court would determine whether the person applying to be a representative is suitable".

Again, although, perhaps, not technically wrong, it most certainly implies (at least on my reading) that

• the expert will assess and decide the adult's capacity; and
• the court will decide if the applicant is a suitable representative (aka "guardian").

The problem is with that first bullet, as it will be the court that determines whether or not a person has capacity, not any expert. We currently need evidence from two medical doctors stating that the adult is incompetent and unable to manage their affairs. Under the new legislation, there will only be one professional assessing the adult's capacity; however, the court is and will remain the final arbiter and, as always, is free to accept some, all or none of an expert's opinion evidence.

And thus my concern with how legal information is sometimes filtered through government officials to the general public. I will share some of my concerns with the proposed legislation, itself, in a later blawg post.

Let's Talk Landon Webb Guardianship, Part V

You might recall a post from back in February of this year, where I questioned whether or not that was a good time for a family to pursue legal guardianship, given what was on the horizon with the Landon Webb case. I know many of you are now well aware as to exactly how Landon's case ended.

For several years, in the presentations I have given around the Province, I have repeatedly called for a reform of the Incompetent Persons Act, noting that it is an "all or nothing, one size most definitely does not fit all" sort of deal. Apparently the court agreed.

[22] The Incompetent Persons Act takes an all or nothing approach. It allows for no nuance. It does not allow a court to tailor a guardianship order so that a person subject to that order can retain the ability to make decisions in respect of those areas in which they are capable.

Just to be clear, there were absolutely no surprises here with respect to the court's finding that the legislation, as written, is unconstitutional. Not only did Landon's parents acknowledge and agree that the Act was unconstitutional, but, from almost the beginning of this court challenge, the Department of Justice had taken the position that it would not oppose the constitutional challenge and was committed to reviewing the current Act with a view to improving it. As noted in the Webb decision, that was a "remarkable thing", as governments rarely concede that legislation is unconstitutional. In the words of the court, "It happens only where there is a clear and compelling case, such as this".

Leaving us with the question ... What now?

First, let's take a look at what did not happen; what the decision in the Webb case does not mean. To put it simply, all current guardianship orders under the Incompetent Persons Act remain valid and the decision regarding the constitutionality of the Incompetent Persons Act will not affect my current Guardianship Orders.

Now that we know what didn't happen, let's take a look at what did.

Yes, Landon successfully challenged the constitutionality of the Incompetent Persons Act. To put it simply, on June 28, 2016 (as expected) the court found certain provisions of the legislation unconstitutional, but granted one year for the Act to be updated.As noted above, all orders remain valid during this period.

The government tells us that it is currently researching and consulting, with a view to crafting a new law on substituted decision making. Which shouldn't be too difficult to do, considering the help they previously ignored were given. In fact, you might recall that the Law Reform Commission was kind enough to draft an entirely new piece of legislation for the government in 1995.

Be that as it may,this means that applications can still be brought under the current legislation until either a new law is brought in or the one-year time period has expired (which would be June 27, 2017).In addition, the process of review that always existed under the Incompetent Persons Act (contrary to what some would have you think) is still available.

Now for the really important part for your family:

Is This the Right Time to Apply for Guardianship?

Picking up on our ongoing conversation about guardianship, I have little doubt that the law concerning adult guardianship in the Province is about to change. Landon Webb has challenged the constitutionality of the Incompetent Persons Act and, although no one can say for sure what the outcome will be, I believe it is highly likely that we will end up with a new piece of legislation governing adult guardianship. Which, actually, will most likely be a very good thing.

However, until either that new legislation materializes or the status quo is confirmed, a person might want to think carefully about when might be the best time to bring a guardianship application in their particular circumstances.

This is just my take, but, given the media play that Landon’s situation has received, I think that (with the exception of the clearest cases) there is a good chance that the courts could be a bit hesitant to grant an adult guardianship order until a decision is made in the Webb case.

In the case of a very low functioning adult, there is probably no reason to hesitate to bring such an application. However, when it comes to higher functioning adults, absent some sort of emergency reason to bring an application RIGHT NOW, it might be best to wait until we see how everything shakes out.

With respect to the Nova Scotia Legal Guardianship Kit, should the law change, it may well be necessary to make corresponding changes to the Guardianship Kit to comply with the new law. I can assure you, however, that should that occur, it is absolutely my intent to update the Guardianship Kit and continue to make it available as an option for families in the Province.

Let's Talk Landon Webb Guardianship ~ Part I

Oh, the irony.

Those who know me at all (or have been to any of my presentations) know how I feel about Nova Scotia's guardianship legislation, the Incompetent Persons Act. To call it old or out-of-date would be more than flattering and undeserved. In fact, antiquated would be a much better word.  I can say, without a shadow of a doubt, that nearly every other province in Canada does a better job than Nova Scotia with their guardianship legislation.

You see, although most other provinces provide for the appointment of a guardian of the person (to make personal care
decisions for the adult) and a guardian of the estate (to make financial decisions for the adult), in Nova Scotia full powers for both personal and financial decisions are given to the guardian, even if the adult is only in need of one type of decision-making assistance. It’s an all or nothing, one size most definitely does not fit all, take it or leave it kind of deal.

There's nothing new here; in fact, this is very old news. As far back as 1993, the Law Reform Commission of Nova Scotia publicly recognized that the Incompetent Persons Act was no longer appropriate and suggested that a new law be passed that would reflect certain fundamental principles, like

• not imposing guardianship simply because a person makes a decision that others do not understand or agree with;
• presuming everyone to be competent to make their own decisions unless it is proven they are not; 
• inquiring whether other less restrictive alternatives have been exhausted;
• focusing on the adult’s abilities, allowing them to participate in decision-making as fully as possible in as many areas as possible; and
• taking into account the wishes of the adult (with the court deciding how much weight, in the circumstances, should be given to those wishes).

Two years later the Law Reform Commission actually drafted a new proposed Adult Guardianship Act. The heavy lifting was done for the government of the day. The legislation had been drafted. Cue the applause.

However, instead of a new Act, in 2007 the legislation was amended to remove terms like “lunatics” and “insane persons” and replace them with the somewhat more politically correct “incompetent person”, which some might find, in and of itself,to be rather ironic.

And yet, that is not the irony I am referring to.

New Legislation for Persons with Disabilities ~ It's Time to Have Your Say

Listen up, people.

Personally, I believe that Nova Scotia could well be a tipping point at this moment when it comes to services for persons with disabilities. We could go one way (towards truly individualized funding and real community inclusion.) or we could just stick with the status quo.

Which would you prefer?

As the province looks at bringing forward new legislation the ipro bono student group at Dalhousie Law School has taken the initiative of reviewing legislation in other provinces and elsewhere regarding services for persons with disabilities, the

They're anxious to engage as many people as possible in their project. And since you have a vested interest in the outcome, your opinion matters.

Here is a short survey (honest, it really is short) that touches on a lot of important points, some of which will really make you stop and think.

Please take a few minutes to complete it. If you like, they will send you the results, which will be included in their final report.

One other request - please share this survey widely - this legislation will affect a large number of people who are not often consulted. Indeed, the number of responses is itself a part of the message.

Be It Resolved ...

I found this interesting and thought you might, too.

Here are the terms of one of the resolutions adopted at the NSACL Annual General Meeting on  June 25, 2011.

UN Convention on the Rights of Person with Disabilities

Given that Nova Scotia was the first provincial/territorial government in Canada to approve the signing and ratification of the UN Convention on the Rights of Persons with Disabilities; and Given that the thousands of Nova Scotians who have a disability have yet to have their rights under the Convention become a reality; and Given that the Nova Scotia Minister of Justice has assumed responsibility for the Convention and his government has indicated that it fully supports its im-plementation; and Given that it is open to a government to enact domestic legislation to incorpo-rate and activate the terms of the Convention towards full ratification of the Convention; 

Therefore Be It Resolved:
That the Nova Scotia Association for Community Liv-ing take all reasonable steps that are necessary to develop legislation that will promote the full implementation of the UN Convention on the Rights of Persons with Disabilities so far as its terms apply to provincial jurisdiction; and That the Nova Scotia Association for Community Living present the legislation modeled on the Environmental Goals and Sustainable Prosperity Act to the Minister of Justice for consideration by the House of Assembly for enactment within the next twelve months; and that the said legislation be entitled an Act to Promote the Full Implementa-tion of the UN Convention on the Rights of Persons with Disabilities for all Nova Scotians living with a Disability; and That the Nova Scotia Association for Community Living take all reasonable steps to work cooperatively with the Government of Canada through its local MPs to assist the provincial government to secure funds to enable the Province of Nova Scotia to meet its commit-ment under the new legislation and to achieve full implementation of the UN Convention for all Nova Scotians who have a disability.
Submitted by Dulcie McCallum

So. I wonder if NSACL might just be looking for any assistance with developing that legislation ...

AHEM

Appropos our recent conversation, having just returned from a (much too brief) five-night vacation, I found this little missive buried in my inbox.

There will be a press conference tomorrow against the changes to the Employment Support and Income Assistance regulations announced last week. We hope you will attend.

What: People with disabilities and advocates speak out against benefits cuts

Where: North End Community Health Centre, 2101-2103 Gottingen Street

When: Tuesday, August 16, 11:00am

:::Background:::

On Monday August 8, 2011, the Department of Community Services announced a change to the income assistance (Employment Support and Income Assistance) regulations.

The regulatory change was made without advance notice or public consultation.

The regulatory change will eliminate certain special needs assistance for people with disabilities living in poverty, for services and items that are "essential" to their health, or to "alleviate pain and suffering".

The new regulation also prohibits special needs assistance for shelter related costs and personal allowances, certain drugs, and medical treatments not covered by MSI like psychological counseling.

Special needs assistance will be limited to listed items of special needs and a provision that allows the Director to add to the list, through policy. People will no longer be able to qualify for other services or items essential to their health or to alleviate pain and suffering.

Our message is simple:

the effect of the Department of Community Services cutbacks is to target people with disabilities the cutback takes away access to essential health services the cutback takes away measures designed to alleviate pain and suffering it undermines human rights in that it takes away a provision that allowed for accommodation of differences, in favour of a cookie cutter approach In addition to the erosion of human rights, we are concerned about the lack of political and legal oversight and accountability that will result from the changes.

We are asking the Premier to review the matter and restore essential services to persons with disabilities.

We have asked to meet with the Minister of Community Services.

In the meantime, we are asking the Minister of Health for a response, given the gap that has been created in essential health services as a result of the DCS cutback.

--
Cole Webber
Community Legal Worker
---
Dalhousie Legal Aid Service
2209 Gottingen Street
Halifax, NS, B3K 3B5
p: 423-8105
f: 422-8067

The press conference may have already come and gone, but ... just remember:

IT IS NEVER TOO LATE FOR A PHONE CALL AND LETTER TO YOUR MLA

AND THE MINISTER.

In fact, if you find yourself strongly moved on this particular issue, you could always make an appointment to go in and speak with your MLA in person.

Hey, it's been known to work before...

Implementation

UPDATE: It's interesting to see that the government acted by regulation and not policy here. Because, as we know, policies per se do not have the force of law. meaning that each individual case must still be looked at on it's own merits. But by changing the regulations under the Act, we don't have that lever.  Think of it more like black letter law. Which is really unfortunate.

I can't say for sure, of course, but I have a sneaking this suspicion that this might just be the end result of this. Or not.  But they certainly do sound related to me.

And although on one hand the changes might make some financial and even common sense, on the other, doesn't this mean the bottom line is that the Department won't cover any medically-related items or services that aren't covered by MSI or listed on the Pharmacare Formulary?  Whether you live in residential care or not?

Even if they happen to be a medically-prescribed seizure medication or type of insulin?

Yup, sure sounds like it to me.  Happy Belated Canada Day!

I'm just asking saying ...

For those more technically-minded, you can find the change to the Regulations here.

Bringing The Baby Home .. At Long Last

For what it's worth (and in the disability community it's worth is certainly debatable), the Personal Directives Act comes into force today.

The "much awaited" regulations can be found here.
[Also for what they're worth.]

Health Minister Maureen MacDonald said the new legislation goes beyond instructions for health care.

She said people will be able to assign someone to make sure their wishes for personal needs such as recreation and hygiene are followed.

"It means that people, and particularly, I imagine, people who are older or persons with disabilities, with perhaps some kind of a condition that has a degenerative element, would have the security of knowing that how they wish to be treated will be respected."

And that, right there, would appear to be the critical thing.

For a person with a degenerative condition, this legislation could be very useful. And for seniors planning ahead, much as one would have a Power of Attorney as part of an estate plan, so too would it make sense to have some form of personal directive, both for health care and other issues.

Enter the Personal Directives Act.

Meaning it's probably a good piece of legislation. For what it is.

As long as no one confuses it with what it's not. As some surely will.

That being said, if you're looking for information as to exactly how the process works under the Act ...

As of Thursday, forms will be available through the Justice Department website or through Service Nova Scotia offices, said Health Department spokesman Ryan Van Horne.

There will be two forms, one to appoint a delegate and the other to outline details of expected care and treatment. A booklet explaining the act also will be available.

"The Personal Directives Act covers a wide range of things, including personal-care decisions," Van Horne said.

"For example, if you are admitted to a nursing home and you are a vegetarian, you could ensure that you get a vegetarian diet or that you got fresh air for an hour a day."

Well, let's hope the legislation is good for a little more than just maintaining your vegetarian diet in long-term care.

Which, of course, it is. I just couldn't resist the snark, it seeming like such a strange example to give.

And as to why exactly it's taken so long to actually become law, welcome to politics in Nova Scotia.

The act was passed in May 2008 after it was introduced by Cecil Clarke, who was then the justice minister in the Conservative government. MacDonald couldn’t say why it has taken almost two years for the act to take effect, but she said regulations had to be written and staff in health-care settings and elsewhere had to be trained in the new rules.

Van Horne said officials had hoped to bring the act into force last fall but it got sidelined by the H1N1 crisis.

Yeah, those regulations. They are, after all, both lengthy and substantial.

Well, we can, I suppose, chalk at least one thing up for our beleagured NDP government.

Practical Applications - The Irony of the Personal Directives Act

Facing significant potential problems with the use of a Power of Attorney for many individuals with disabilities, we now turn to the Nova Scotia's new Personal Directives Act, which we initially discussed here.

Might it be useful for our community?

Unfortunately, I'm afraid not.

The first major problem that needs to be pointed out is that the legislation is not yet proclaimed in force. Meaning that, from a legal point of view, it doesn't actually exist. A giant legal tease if you will - it's here. But it isn't. Now you see it. Now you don't.

And no, I have no inside knowledge as to when (or even if) it will be proclaimed. Perhaps something to contact your MLA about should you feel the need to put an end to the shenanigans.

Putting aside that little inconvenience, the question remains - is a "personal directive" a possibility that could be used to avoid guardianship?

The as-yet-unproclaimed legislation would allow a "person with capacity" to make a personal directive setting out instructions or an expression of their values, beliefs and wishes about future personal-care decisions to be made on their behalf and authorizing one or more persons to "act as delegate" to make decisions concerning their personal care on their behalf.

"Personal care” is defined as including, but not being limited to, "health care, nutrition, hydration, shelter, residence, clothing, hygiene, safety, comfort, recreation, social activities, support services and any other personal matter that is prescribed by the regulations". Those would be the regulations which are not yet in existence. Seeing as how the legislation itself remains in some sort of legal purgatory.

Putting that litle issue aside (yet again), I'm afraid I'm to be the bearer of two more pieces of bad news.

First, although the Personal Directive Act allows for combining a personal directive with an enduring power of attorney in a single document [sec. 23], a personal directive does not and cannot apply to financial issues. The situation remains that the only way to nominate a person to act on another's behalf in regard to financial matters in Nova Scotia (outside of guardianship) is through the use of a Power of Attorney.

The second difficulty, at least indirectly, involves the level of competency required in order for a person to execute a valid personal directive.

For the purposes of the Personal Directives Act, "capacity" is defined as "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision". [sec. 2(a)]

Turning our attention to our previous discussion on capacity in the context of Powers of Attorney, you might recall this statement:

Capacity and incapacity (and competency and incompetency) are legal concepts. And they are task specific. For example, the minimum level of competency required for a person to execute a valid Will (which we call testamentary capacity) is lower than that required for many other legal acts. In the context of making a Will, what is essential is whether the person has the ability to understand the information relevant to making the pertinent decision and the ability to appreciate the reasonably foreseeable consequences of that decision (or lack of decision).

So although I hesitate to commit to an opinion on this issue at the moment, it certainly would appear, based on the wording of the legislation, that the standard of competency required to execute a personal directive is very similar to that required in order to execute a valid Will.

And given that at least a segment of the population with intellectual challenges who would not have the higher level of competency required to enter into a contract, for example, could likely still execute a valid Will, the legislation would appear to provide an avenue for those individuals to nominate a person to make personal care decisions for them.

Good news, says you.

Maybe, says I.

There's just for one little problem. Caused by sections 9 and 12 of the Act.

9 A personal directive is in effect whenever the maker lacks capacity to make a personal-care decision.

12 (1) A personal directive has no effect (a) in respect of a personal-care decision, whenever the maker has capacity; (b) on the maker's death; (c) when the personal directive is revoked by a maker who has capacity and makes the revocation in writing, executed in the same way as the personal directive; or (d) on a determination by the court that the personal directive ceases to have effect.

We now find that our although our hypothetically challenged person may have the capacity to execute a valid personal directive (if they have "the ability to understand information that is relevant to the making of a personal-care decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision"), their personal directive will only go into effect when they lack the capacity to make a personal care decision. And, just to put a cherry on it, their personal directive will have no effect whenever they have such capacity. Which capacity, we've already ascertained, they must clearly have had in order to execute a personal directive in the first place.

Leaving us, I would suggest, with a perfectly valid personal directive which will, unfortunately, remain useless (despite its validity) unless and until the maker becomes (even) more incapacitated.

Oh, the irony.

It kind of reminds me of having a Personal Directives Act (which, I must say, will be a very useful and much-needed piece of legislation for very many individuals) that isn't. For the moment, anyway.

The Power of Words

Have you heard about the campaign to 'End The "r" Word'?

Personally, I think it might be a little over the top. For the simple reason that it seems to attempt to paint the use of the word as "hate speech".

Don't get me wrong, I do have a big problem with people throwing around the word "retard", be it unintentionally and casually or in a mean-spirited way. Always have, ever since I was a child. Growing up with two severely challenged older sisters, I suppose that's not too surprising.

It's just that I tend to approach most things from a legal point of view. And coming from it that perspective, I find it a little over the top to attempt to label it "hate speech". Although it might well fit the Wikepedia definition, I have a little more trouble rounding it with the legal [Criminal Code] definition.

Public incitement of hatred
319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

Wilful promotion of hatred
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction

And although it may well fit within the definition of what has become commonly known as "hate speech" under sec. 13 of the Canadian Human Rights Act, I have a lot of problems (both from a legal and personal point of view) with that section.

That being said, I'm more than happy to point you in the direction of some rather cool opinion out there on the subject. From those who have the most right to object and tell all of us exactly how they think and feel on the subject.

But my own opinion on the campaign aside, it's hard to argue with the premise that the words we choose are an expression of our values and that much hurt and harm can be caused by using hurtful language. And whether or not we can stop the general public from throwing around the word as an insult, there can be no argument that it's high time the Nova Scotia government woke up and changed the centuries old wording of some of our provincial legislation.

For example, over the years, the wording of the Incompetent Persons Act (which is the legislation under which a person would apply for a guardianship order) has been more than enough to make a person's stomach churn. Fortunately, that legislation has been recently amended to remove the references to "lunatics", the "insane", "insane and dangerous persons" and one of my personal favourites, "dangerous idiot".

And although some might still take offence to the new and improved language in the Act which now uses the word "incompetent", it is a huge improvement. And, personal feelings aside, legally accurate. So perhaps we are getting there, slowly but surely.

In a similar, but much more far-reaching vein, United States Senator Barbara Mikulski is attempting to remove the words "mental retardation" and "mentally retarded" from that country's federal law books and have them replaced with “intellectual disability” and “individual with an intellectual disability”. This with a piece of legislation known as "Rosa's Law" which has an interesting bit of history behind it.

Rosa’s Law replicates a law recently adopted in Maryland. Senator Mikulski first heard about the state law from Rosa’s mother during a roundtable discussion about special education held in Edgewater, Maryland. Due to requirements in the Individuals with Disabilities Education Act (IDEA), each student who receives special education services at public schools has an individualized education program (IEP) that describes the student’s disability and the special education and services that child will receive. Rosa has an intellectual disability – Downs Syndrome – and so was designated as a student with “mental retardation” in her IEP, giving way to people at the school referring to Rosa as retarded. Senator Mikulski promised Rosa’s mother that if the bill became law in Maryland, she would take it to the floor of the United States Senate.

“This bill is driven by a passion for social justice and compassion for the human condition,” said Senator Mikulski, a senior member of the HELP Committee. “We’ve done a lot to come out of the dark ages of institutionalization and exclusion when it comes to people with intellectual disabilities. I urge my colleagues to join me to take a step further. The disability community deserves it. Rosa deserves it.”

“Mental retardation” and “mentally retarded” are terms commonly used in federal laws, including the Individual With Disabilities Education Act, the Higher Education Act, the Elementary and Secondary Education Act, also known as No Child Left Behind, and the Rehabilitation Act of 1973.

And just in case anyone out there really wonders why it matters, perhaps they should take a moment to listen to Rosa's brother. Out of the mouths of babes, indeed.

When Rosa’s Law was being considered by the Maryland General Assembly, Rosa’s 13-year-old brother, Nick, successfully testified on her behalf for a substitution of mentally retarded with intellectual disability. He explained, “Some people say they are just words, and it’s not going to make a difference if we just change the words. Some say we shouldn’t worry about the words, just the way we treat people. But when you think about it, what you call people is how you treat them! If we change the words, maybe it’ll be the start of a new attitude towards people with intellectual disabilities. They deserve it.”

And now, if you don't mind, I would like to leave you with one of my personal favourites. Short. Sweet. And to the point.



Really, what more is there to say?

H/T to Pipecleaner Dreams

The Law on Human Rights and Employment in Nova Scotia: Part II

It's only been six months since I promised a Part II to The Law on Human Rights and Employment post. But it's not like anyone is actually keeping track, right?

Anyway, let's dust off that old post and continue our discussion about human rights in the employment context.

Keeping in mind that we are discussing only the Nova Scotia process. Each province has it's own human rights legislation and there is also a Canadian Human Rights Act which would govern employers in those businesses which have been found to come under federal jurisdiction. And although the basics are the same, the legislation will differ a bit in each jurisdiction.

We already know that in order to claim discrimination under Nova Scotia's Human Rights Act, it is necessary to bring yourself within one of the enumerated grounds under the Act, which we looked at here.

"Discrimination" is defined in sec. 4 of the Act as

... [making] a distinction, whether intentional or not, based on a characteristic, or perceived characteristic ... that has the effect of imposing burdens, obligations or disadvantages on an individual or a class of individuals not imposed on others which withholds or limits access to opportunities, benefits and advantages available to other individuals or classes of individuals in society.

There is a duty on an employer not to discriminate against an employee or potential employee right from the beginning. Thus, for example, there is an onus on the employer to make sure that a job interview is held in an accessible place ie) wheelchair accessible, if necessary.

If a person can show that disability was even one factor that played a small role in the decision not to offer employment or to terminate a person's employment, that person (referred to as "the claimant") will have met the burden of what we legal types like to call a prima facie case .

READ MORE

Just Let Us BE

We've talked before about prenatal screening, particularly as it relates to children with Down Syndrome, although it really could apply to any of our special kids.

We've talked about the importance of signing the Petition to have the federal government pass a Prenatal Diagnosed Condition Awareness Act.

And now, now we can watch



and see exactly what we're talking about.

The Protection of Persons in Care Act In Action

There's a report out in the news about abuse in Nova Scotia's nursing homes.

Apparently, 73 investigations were carried out by the Health Department Oct. 1, 2007 and Sept. 30, 2008, following complaints filed under the Protection of Persons in Care Act.

You might recall that we previously discussed that legislation, which has been in force in the province for just over a year now.

Health Department investigators determined there were 41 incidents of abuse at a wide variety of small and large nursing homes, as well as at hospital wards across the province.

Of those, the department says 30 cases involved staff abusing residents, four were cases of residents abusing other residents, and seven involved family members or visitors abusing a resident.

The Department of Health defines physical abuse as "the use of physical force resulting in pain, discomfort or injury including: slapping, hitting, beating, rough handling, tying up or binding." In these cases, the physical abuse ranged from serious incidents, such as staff members slapping a resident or handling them so roughly that bruising resulted, to less severe cases of staff forcing an unwilling resident to eat a meal or bathe.

The biggest problem here appears to be a lack of proper staff training. As in staff in facilities who have had a dementia care course have an understanding of why some residents might be rebelling at their suggestions.

Since 2006, she said the province has required staff to have a continuing care certification, and in recent years a course on dealing with "challenging behaviours" has been made available to nursing homes and hospitals across the province. However, recruitment of staff remains a challenge, she added, noting there are times when nursing homes are short-staffed because of a lack of qualified staff, which creates more stress for on-duty staff.

However, the Province appears to consider the new legislation as a "success" in that cases are being reported, and remedies such as staff retraining are being implemented. And I would agree. At least up to a point.

The whole idea of abuse in nursing homes, be it physical, sexual, financial or emotional, sickens me. Even more so, given the fact that we were seriously looking at having my mother placed in a nursing home last year.

But there are two positives to be remembered here:

• Firstly, there is legislation in place affording protection to residents, not just of nursing facilities in Nova Scotia, but any patients and residents 16 years of age and older who are receiving care in a Nova Scotia health facility (which includes hospitals, nursing homes, homes for special care or caring for persons with disabilities, group homes and residential centres). In other words, not just the elderly but also any disabled person in a home for special care, group home or residential centre.



• And anyone (which includes you and you and you) can report suspected abuse by calling 1-800-225-7225.30.

The first step is having legislation in place. Check.

The second step is using it. And demanding accountability.

That's where you and I come in.

Last One Standing ...

Sometimes there is pride in being in the position of the Last One Standing. Alas, today there is none.

Although happy to report that New Brunswick is now the 9th province to exempt the RDSP in some form**, I am even more disheartened to see that this effectively leaves Nova Scotia ias the very last Province to deal with this most important issue.

In this there is no pride.

What will it take to make it happen here?

** New Brunswick has not only completely exempted the RDSP as an asset and allowed $800 in income from an RDSP (which figure will be adjusted to the LICO) but has also improved their regulations to allow for up to $200,000 to be placed in trust for a disabled person and will now treat other trust income in a similar way as RDSP income. **

Update: Full Press Release can be found here.

You've Got To Be Kidding

Prince Edward Island has joined the ranks of the enlightened in at least partially exempting the RDSP from the bureaucratic nightmare known as social assistance benefits.

That makes eight, count them, eight provinces which have in some form or another exempted the RDSP from affecting disability benefits. Leaving only two provinces as holdouts.

Yup, you guessed it ... Nova Scotia is now among the two lone holdouts.

Just how sad is that?

You Heard It There First

Good news indeed ~ Doug, at the RDSP Blog, tells us that Manitoba, Alberta and most recently, Ontario, have all joined the bandwagon in completely exempting the RDSP.

And as if that weren't enough, Quebec has now partially exempted the RDSP from affecting disability benefits.

That means, in the case of Quebec, although an RDSP can grow to an unlimited amount without affecting Disability Benefits, payments from the plan will be only partially exempted from affecting provincial disability benefits. Individuals will be allowed to withdraw $300 in income a month for an individual adult, and $340 in income a month for a couple, without disability benefits being affected. Anything above that threshold will be considered income and may disqualify or cause funds to be clawed-back from current benefits.

Okay, perhaps not 'picture perfect' in the case of Quebec. But still...

Just in case anyone is actually keeping track, that makes seven provinces which have in some form or another exempted the RDSP from affecting disability benefits (with Manitoba, Alberta, Ontario, Saskatchewan, Newfoundland, the Yukon and British Columbia completely exempting them) and a partial exemption in Quebec.

Let's see, when I went to school Canada had 10 provinces and 2 territories. So I believe that would mean we currently have 10 provinces and 3 territories. With six seven provinces and one territory having already exempted the RDSP, that leaves three provinces and two territories to weigh in.

Three provinces and two territories, you say... let me see, would that leave Nova Scotia, New Bruswick,Prince Edward Island, Nunavet and the Northwest Territories as the remaining holdouts? Yes, I believe it would.

Did I mention Nova Scotia?
Still holding out ... afraid to come to the party, it would seem.

It's enough to make a girl's heart sad, it is. Will we never see the light?