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

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

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

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

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

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

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

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

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

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

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

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

The MacKenzie Friend - A Welcome Development

I'm happy to share a great idea to assist self-represented litigants (SRL) in court, one which I must admit I was totally unfamiliar with until now - the MacKenzie Friend.

A McKenzie Friend is a personal supporter, chosen by the SRL, who sits “upfront” and can take notes, pass documents, or even just sit there as moral support. They do not address the court or offer any legal advice, but they can help the SRL to stay focused and calm during a hearing, and can debrief with them after.

This is important because not only are many SRL intimidated with the court process and having to appear in court, they often find it difficult to accurately and fully recall what they were told by a judge because of courtroom nerves.

Although the concept originated in the UK, it is now becoming more widely supported in Canada. You do need to ask the court for permission to have a MacKenzie Friend sit up-front with you, but chances are good you will receive a positive response.

Even better than knowing you can request to have a MacKenzie Friend with you in court is the newly-created Guide, "The McKenzie Friend: Choosing and Presenting a Courtroom Companion”. This new Guide was created by written and researched by Judith DaSilva with Julie Macfarlane (she of the National Self-represented Litigant Project fame).

The new Guide – which includes a Worksheet with a series of questions for SRLs to work through in order to assess their needs, and then to identify a person best able to assist them (and least likely to raise the ire of the other side) is available on our website for free downloads. We would like to strongly encourage not just SRLs but also agencies, paralegals and lawyers serving the primarily self-represented to take a look at this resource and consider making it available to clients.

You can read more about the origin of the MacKenzie Friend, as well as the process leading to the creation of The McKenzie Friend: Choosing and Presenting a Courtroom Companion here.

Honestly, if I were any of one of you and I was considering heading off to court without a lawyer*, I would be on to this in two minutes flat.

Did I mention that it's free?

* Yes, that would include a situation where 1) I had used a lawyer to help me prepare for court but was heading into the lion's den courtroom alone or 2) I was making a guardianship application with the help of the Nova Scotia Legal Guardianship Kit.

Pertinent and Timely Questions in Criminal Law (The Wrap Up) ~ Part III

UPDATE: Thoughts from some of those in the trenches (the president of the NSGEU and a retired community mental health worker) on these sorts of situations: 

Both Jessome and Reece agree that people with diminished capacity should not face criminal charges for their actions. They say there are alternative ways to address their behaviors. 

“No matter what the disability is, consequences can be put in place so people understand that this is not an acceptable behavior,” said Jessome. 

“Employers need to minimize the risk, and they don’t do a good job at it. 

“There are a lot of people who don’t stay in the profession where they work with people with disabilities because they can’t get the safety issues death with.”

I received the following comment on this post regarding Anna Marie Tremoni's interview with Nichele Benn and her mother on CBC's The Current:

The problem is that community services has too many individuals to care for, and too many of these cases fall between the cracks of mental health or community services. However, if you were to look into the history of these clients, you cannot just blame bi-polar for the reason for the Amanda Murphy assault charges. Have there been many assualts done by this woman?I'm guessing yes. And her family.. How long has she been apart from them? I'm guessing they haven't been able to manage her for years and she's probably been in and out of instutitions and group homes. You are right, more policies do need to come into play for housing. However, letting serious offences be pushed under the rug by saying she is either cognitively delayed and/or has a serious mental illness is not solving the problem.

After I finished shaking my head, I asked myself what, in particular, it was that some people just aren't getting. The answer, of course, was obvious - well to me, anyway. They're missing the fact that (on at least one level) this isn't about bipolar or epilepsy or any other such condition. It's about developmental age.

But before we go there, let's back up for a second; back up and try to wrap up this trilogy on individuals with special needs and the law.

There are various places where I, personally, believe the criminal justice system could be doing a far better job when it comes to individuals with special needs. One, in particular ( a pet peeve of mine, if you will) is in how it treats complainants with special needs.

In particular, I am referring to the "hate propaganda" provisions of the Criminal Code, which create an offence for "advocating or promoting genocide", defined as certain stipulated acts "committed with intent to destroy in whole or in part any identifiable group". As you will recall, although the term "iidentifiable group" includes any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, there is mo mention of disability. The same is true with respect to the provisions of the Code concerning the promotion of hatred.

A similar pet peeve of mine is how the criminal law takes absolutely no notice of a complainant's intellectual or developmental age when it comes to luring an individual to engage in sexual activity. We protect our "children", of course; but anyone over the age of 18 years is fair game, no matter their developmental age.

And yet when it comes to the Nichele Benns and Amanda Murphys of the world, I must admit that I did not initially see these situations as a problem with the criminal justice system, per se. My reasoning being that since such cases should not be brought within 1000 yards of the criminal justice system in the first place, there should be no problem.

If the rest of the "system" (read, in this case, the Departments of Community Services and Health) was working properly, charges would never have been laid in these situations. The only *fault* I initially saw with our criminal law system was that prosecutors were exercising their discretion to lay charges in cases where a completely different decision should have been made.

At least that was the way I saw it until I read about Amanda Murphy's most recent court appearance. It was this paragraph in this story that caused light to dawn on this particular marble head.

“I’m not sure,” Gerald MacDonald, Murphy’s lawyer, said when asked after her appearance if there is a precedent stating that someone has to be dealt with by the court system according to their chronological age rather than their mental one.

That, you see, was a brilliant question asked of Mr. MacDonald. That is *the* question that needs to be asked and answered properly in these cases. And I say "properly" because if the answer happens to be that there is no such precedent, than it is long past time to create one.

The discerning reader will have noted that this very issue of whether or not there is any precedent for dealing with an accused according to their chronological age rather than their mental age is the very same difficulty we faced in pet peeve #2, above, where no recognition is given to a complainant's developmental age, even if the defendant is well aware of it.

All of which made me realize that a significant problem we face with Canada's criminal justice system is that it does not appear to offer any recognition of an adult's developmental age; not with respect to

1. the effect it has on an accused's ability to formulate the mens rea necessary to be found guilty of committing most crimes (including both assault and assault with a weapon);
2. the public policy issue of whether we should morally be prosecuting individuals who would not be subject to the criminal law if their developmental age matched their chronological age; and
3. the public policy issue of why the criminal law fails to protect individuals it would otherwise protect if their developmental age matched their chronological age.

Perhaps as an aside (perhaps not), those last two points are almost enough to make a person question if our criminal justice system is guilty of discrimination, if it violates some of those very "fundamental rights and freedoms" that Canada's Constitution vows to protect. How ironic that would be.

But that, my dear friends, take us back to that anonymous commenter - the person who, much like our criminal justice system, apparently fails to see that (at least one of) the issue here is that Amanda and Nichele have developmental ages of children.

Of course this isn't the only thing this person fails to understand.

Pertinent and Timely Questions in Criminal Law ~ Part II

Continuing our discussion from last week on how well the criminal justice system deals with individuals with special needs, we will now look at how criminal culpability is decided, the sentencing of individuals with special needs and what happens when the complainant is an individual with special needs. 

III.  Deciding Criminal Culpability
Under sec. 16 of the Criminal Code, a person will not be held criminally liable for any offence if they meet the defence of "mental disorder".

16. (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. 

Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

As when it comes to determining fitness to stand trial, defence lawyers, Crown lawyers and judges all have the power to seek a forensic psychiatric assessment if they think a mental disorder could have affected a person's actions when a crime was committed. The court will consider those assessments  before determining whether the person is criminally responsible for their actions.

Many people seem to think that this defence is only available to those who have a mental illness, but in reality it covers any type of recognized mental disorder, including, for example, autism and intellectual challenges. Also contrary to popular opinion, it is not an easy defence to meet. One must prove not only that they had a mental disorder at the time the offence was committed, but they must also satisfy the court that the disorder made it impossible for them to either

• appreciate the nature of their actions in question or 
• know that their actions were wrong.

Before changes made to the Criminal Code in 1992, courts had no discretion but to automatically detain in  custody persons found "not guilty by reason of insanity" (as it was once known) or unfit to stand trial on what was known as a 'lieutenant governor's warrant".

Changes made in 1992 to the Criminal Code (following the introduction of the Canadian Charter of Rights and Freedoms) eliminated the reference to "not guilty by reason of insanity" and replaced it with "not criminally responsible" (NCR). Also eliminated were the provisions concerning automatic "strict custody" and the role of the lieutenant governor.

Now, the court, itself, can either hold what is known as a "disposition hearing" or send the matter to the Criminal Code Review Board to hold a disposition hearing, following which the accused will be given an absolute discharge (meaning they are free to go), a conditional discharge (meaning they will live either in the community or a hospital subject to the conditions or restrictions set by the court of the Review Board) or be detained in custody in a hospital subject to conditions or restrictions.

The basic principle behind Section 16 of the Criminal Code of Canada dates back to a British ruling from 1800 in the case of James Hadfield. Hadfield had fired a gun at King George III and was found not guilty of attempted murder by reason of insanity. The chief justice, Lord Kenyon, felt that prison wasn't the place for Hadfield but also considered that it would be wrong to return him to the community

Kenyon wrote:"The prisoner, for his own sake, and for the sake of society at large, must not be discharged; for this is a case which concerns every man of every station, from the king upon the throne to the beggar at the gate; people of both sexes and of all ages may, in an unfortunate frantic hour, fall a sacrifice to this man, who is not under the guidance of sound reason; and therefore it is absolutely necessary for the safety of society that he should be properly disposed of, all mercy and humanity being shown to this most unfortunate creature.

"But for the sake of the community, undoubtedly, he must somehow or other be taken care of, with all the attention and all the relief that can be afforded him ... for the present, we can only remand him to the confinement he came from."

Hadfield was held in a psychiatric hospital for the rest of his life.

IV.  Sentencing An Individual with Special Needs

In the US, given that the death penalty has been taken off the table for defendants with an intellectual disability, the question now before that country's Supreme Court is how states should decide if someone convicted of a crime actually has an intellectual disability.

We are told that mental health professionals define an intellectual disability as a "substantial limitations in intellectual functions such as reasoning or problem-solving, limitations in adaptive behavior or “street smarts,” and evidence of the condition before age 18". Some states use this definition; however, others are much more arbitrary - such as Florida, where if you have an IQ over 70, you’re eligible for execution regardless of intellectual function or adaptive behavior.

Here in Canada, the death penalty, thankfully, is not on the table. However, when it comes to sentencing persons with disabilities for their crimes, one glaring discrepancy does come to mind. Although Canadian sentencing laws recognize that some categories of people in society are different than others (namely Aboriginals and youth), there is no special recognition given to persons with disabilities.

A. Aboriginal Sentencing
Section 718.2(e) of the Criminal Code addresses Aboriginal sentencing. The section requires a sentencing judge to pay particular attention to the circumstances of Aboriginal offenders and to consider all available sanctions other than imprisonment that are reasonable in the circumstances. An individual’s Aboriginal status is considered in determining a sentence because his or her circumstances are different from non-Aboriginal offenders.

One reason why the Criminal Code treats Aboriginal people uniquely is because Aboriginal people are overrepresented in Canadian prisons. For example, in 1997, Aboriginal people constituted close to 3 percent of the population of Canada, yet amounted to 12 percent of all federal inmates.

.  .  . 

B. Youth Sentencing
The Youth Criminal Justice Act provides the legislative framework for Canada’s youth justice system. It includes a separate sentencing regime because the needs and situations of youth are different from those of adults.

Which might lead one to conclude that in the eyes of Canadian criminal law, no matter the type or severity of a defendant's disability, his or her circumstances are no different than anyone else's.

Pertinent and Timely Questions in Criminal Law ~ Part I

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) communicate with counsel;

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

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

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

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

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

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

• only the least intrusive methods are used; and

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

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


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

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

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 ...

"Bring Unto Me the Little Children"?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What do these various subjects have in common?

To me, they both examine the question (albeit in different contexts) as to whether and how much it is acceptable for society to act to "protect" individuals with disabilities. And although not so many years ago, that would have been hailed by most as a lofty goal, it seems to have fallen into disrepute more recently. As if attempts to "protect" the disabled, much like we attempt to attempt to "protect" our children, is somehow insulting and degrading to them.

And yet, although the concept of protecting disabled person from both themselves and others, so to speak, will no doubt be quite off-putting to some, I have to think that it does have a valid place in certain contexts and certain circumstances. Admittedly, in an ideal world, such a thing might well be not necessary. But who amongst us will really argue that we live in an ideal world?

Whether we are considering a defendant's right to represent himself in court or when (if ever) a guardianship order might be appropriate, we are really talking about the same thing. Do we treat individuals with disabilities like everyone else? Do we accord them special 'privileges'? Or do we place special 'burdens' or 'restrictions' on them?

And more importantly, can those questions be answered, can all the above examples be analyzed in a logically consistent way? Or is better to proceed with a haphazard, whatever 'feels right' approach?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good On Him

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

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

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

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

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

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

 ~  ~   ~  ~

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

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

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

'Educational Malpractice' Revisisted

Interesting news out of the US at the moment - some faithful readers may recall a post from way back in the way back on the issue of whether tere was such a thing as a tort of educational malpractice in Canada- the answer being, much as we might wish it were otherwise, pretty much a resounding NO.

And while I remain unsure how much (if any) practical difference it may ever make here, it's interesting to see that the US Supreme Court has formally asked the US Solicitor General's office for its position on whether a parent can bring a negligence claim against a school district that allegedly failed to identify a high school student's disabilities.

Sounds a bit like our old friend, "educational malpractice", doesn't it?

The story goes something like this:

According to court papers, when the student was in 10th grade, her teachers became concerned that her work was "gibberish and incomprehensible" and that she had failed every class. The school district referred the girl to a mental health counselor, who recommended that the student be evaluated for learning disabilities. The district did not follow the recommendation, and it promoted the girl to the 11th grade. [Ed. Note: Sound familiar?]

The mother later made a request for an individualized education program for her daughter, and the district determined that the girl was eligible for special education services for a learning disability.

The mother brought an administrative claim under the IDEA, arguing that the school district failed under the law's "child find" requirement to identify the girl's disabilities sooner. That requirement obliges states to ensure that all children with disabilities who are in need of special education services are identified, located, and evaluated.

This is where the story really diverges from the Canadian situation in that (as I've previously noted on more than one occasion) although Nova Scotia (and other Canadian provinces) uses much of the wording from the American legislation (IDEA), our Education Act has none of its teeth. Nor do we have any of the built-in as-of-right administrative law remedies you will see below.

An administrative law judge largely sided with the family, ordering as much as 150 hours of compensatory tutoring for the girl's lost educational opportunities. However, the judge refused the family's request for a private school placement at public expense.

The school district appealed that ruling in federal district court, arguing among other things that if the family prevailed, students with disabilities would be able to bring "educational malpractice" claims against districts.

The district court rejected the school district's arguments, and a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also sided with the family.

In a 2-1 decision in March 2010, the 9th Circuit panel rejected the school district's arguments that the IDEA did not authorize claims where there was no affirmative refusal to act on the part of district officials. The majority held that there was a broad jurisdictional mandate under the federal special education law, and that in this case there was "willful inaction" on the district's part in the face of numerous "red flags" about the student's disabilities.

Although there was one dissenting voice in the US Court of Appeals decision, the parents certainly do appear to be making headway.  It will be very interesting to see where this case eventually ends up (as in how the US Supreme Court - which would be the equivalent of the Supreme Court of Canada - decides) and, if the parents are successful, whether or not there will be any language in the decision which might be useful for Nova Scotian Canadian parents.

Don't hold your breath though - apparenlty the Solicitor General's office typically takes several months to respond to a request for its views in any given case and the Court's decision itself could take much, much longer. 

Still, something to keep an eye out for - Compton Unified School District v. Addison (Case No. 10-886).

Injury Damages, Human Rights and Disability - A Guest Post

For Americans, a case just heard in New York state [Ed. This reference is now almost one year old - my sincere apologies to Mr. Mitchell  for the delay in getting this up] is raising questions about how far human rights questions can intervene in the calculation of damage awards ... and influence the outcome. It is interesting to see how this case tests against Canadian authority, how the idea is treated, here, and how the ideas it raises could affect the treatment of persons with disabilities north of the border.

McMillan v. New York is a race-discrimination based decision but its implications extend far beyond mere questions of race. It involves, directly, how legal equality assurances should affect how damages awards
are calculated for injured people.

The cases’s background is this: You might remember a terrible accident a few years ago when a New York ferry slammed into its dock at high speed killing several people and badly injuring others.

One of the persons injured was an employee who was left paralyzed in his legs and in part of his arms and unable to work. He therefore suffered not only the actual loss of the use of his arms and legs but also a
direct elimination of his ability to continue to earn income from his employment. And, in such cases, with a sufficiently young claimant, the loss of projected income over a working lifetime can be a very large amount indeed.

This Claimant, McMillan, is African-American. And this is where the case becomes interesting. The fact is that, as a group, African-Americans have a shorter statistical life span – and therefore a shorter statistical working life span – than other groups in society.

McMillan sued for damages including his inability to carry on working and the loss of wages it would mean over the balance of his working life.

The calculation of this kind of loss is a standard exercise in Canadian and American law. It involves trying to decide how much a loss of income the man could be expected to suffer over each year and how long he might be expected to be able to work.

Perhaps you’re seeing the argument coming: Because, African-Americans have shorter life spans, on average, than other groups in American society and the factor immediately became an issue in calculating the loss that he suffered. Clearly, a person with a shorter lifespan (and therefore a small chance of working full time to retirement age), will expect to earn less than others with a longer projected life as a result of the same inability to work. And just as clearly, his damages will be less if because of his accident, he can no longer work.

New York City’s lawyers brought this argument – not rocket science by the way, but a usual and customary part of damages law – directly into play. They argued that because the McMillan’s lifespan was statistically less than, say, a Caucasian working the same job, in effect, he should be entitled to less damages than his Caucasian counterpart.

In the result, of course, the City expected to save a very significant amount of money. The trial judge refused to allow the city to make this distinction. He awarded damages based on overall life expectations and refused to limit it to those governing African Americans. The first argument that he used was that “race” is such an undefined and fluid category that statistics based on the distinction is much less precise than the category might at first appear – and so it would be unfair to judge people’s claims based on unclear data. The second argument was that as a result of better care and treatment because of the funds available from the damages award, the claimant’s expected life span might actually expand.

But lastly, and this is where it bears consideration here, McMillan decided that because the US constitution protects everyone equally under law, that a distinction allowing the law to differentiate between claimants based on race-based characteristics actually violated that constitutional protection.

You can see, for the Americans, damages calculations based on disability will also have an effect. In the same way that as the court found that how statistics link lifespan to “race,” at best, only in the fuzziest of ways linkages of lifespan to disability will, in the same way, be only the vaguest and most remote connection, if helpful at all.

How could this affect us here?

Canadian cases arguing racial distinctions cases are fewer and farther between than in the US. However, there are broad suggestions from now decade old or older cases, that courts have attributed lower earnings potential or life span to native claimants in BC damages claims. While a struggle has been being waged to limit unfairness – and corrections are taking place – in applying old statistical information to the projected earnings levels of women to reduce their damages claims as compared to similarly claiming men, the issue has not been resolved.

But no one seems to be studying the claims of persons with disabilities. And equally, no one seems to be considering applying the constitutional protections of equality.

The courts here have reminded us that the Charter’s s. 15 including equality considerations can be available in our country to affect this area of law (case based “common law”) decisions as well as any
government regulation or practice. But as of yet, it seems, the issue has yet to be directly confronted in the country’s law reports.

Perhaps the perhaps innate unfairness of categorizing people for legal purposes based on any grounds of inequality deserves close review in Canadian cases. Perhaps it’s a place where our governments need to intervene.

A Guest Post by Mr. Blair Mitchell, a Halifax lawyer who has practiced in the area of civil and administrative litigation for over 20 years and whom, you might recall, has graced our pages previously.

Litigation v. Education

The Americans with Disabilities Act is somewhat similar to Canadian human rights legislation in that it prohibits private employers, state and local governments, employment agencies, labor unions and other public entities from discriminating against qualified individuals with disabilities with respect to employment matters and access to services.  Although, unlike our human rights legislation, this particular piece of legislation applies only to individuals with disabilities (defined as "a physical or mental impairment that substantially limits a major life activity").

But it's a nice piece of legislation in that it allows individuals with disabilities who believe that they have been discriminated against direct access to the courts (as opposed to a human rights bureaucracy as is the case with our own human rights legislation).

And yet an interesting situation is developing in Florida where many small business owners feel that they are being faced with the prospect of financial ruin by certain litigants who are using the legislation in a less than honest manner.

Unaware they had any violations and insisting they don't want to discriminate, the business owners say they are served with lawsuits and pressured into settling for thousands of dollars without being given a chance to fix problems.

Vince Pardo, manager of the Ybor City Development Corp., said the plaintiffs tell business owners the same thing: Pay me $15,000 and we're out of your hair.

"That's a settlement," Pardo said

Even some in the disability community are unsure of  these so-called "drive by lawsuits",

"We call them drive-by lawsuits, quite honestly, because we're not convinced they're making the community more inclusive regarding the ADA," said Brenda Ruehl, executive director of Self Reliance Inc., a Tampa-based, nonprofit center for independent living.

Self Reliance refers businesses to certified experts for help complying with the law.

"If it comes to our attention a business is not complying with ADA, we work with that business," Ruehl said. "We have found that is much more productive and encourages people to want to buy into the ADA."

In cases when a business refuses to make changes, she said, the center works with the U.S. Department of Justice to pursue legal remedies.

The flip side of the argument, of course, is that given that this legislation came into force over 20 years ago, can business owners really legitimately argue that they didn't know what is required of them or that they were "caught off-guard" by the lawsuits?  And in a situation where Justice Department and Equal Employment Opportunity Commission lawsuits are scarce, some see private lawsuits as vital to enforcing the legislation.

Still, this story does raise what I see as a very valid issue - when is it in the best interests of the disability community to focus more on education than on litigation?