The Challenged Youth v. The Criminal Justice System

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

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

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

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

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

~ ~ ~ ~ ~ ~ ~ ~ ~

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

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

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

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

It was these facts; namely

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

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

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

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

But could this case stand for even more than that?

Adoptive Parents Not Welcome Here?

I read a lot of Children's Aid cases in my current work. A lot of them are older decisions that I am helping to de-identify, which means taking out the names and anything else which might serve to identify the children and families involved.

While doing that, I have noticed a fair number of decisions where the parents had special needs (sometimes physically, often intellectually challenged) and the question facing the court was whether, given the challenges faced by the parents, they could still be 'good enough' parents to their children.

Sounds like an interesting research study to me; how do the courts treat parents with special needs in a child protection context? I'm not sure if anyone else has ever taken a serious look at that issue so if anyone reading this knows of any such research that has been done, please let me know.

But today, while completing my daily spin through the blogosphere, I came across another, more or less related issue.

We have touched on the issues of whether or not obesity should be considered a disability. So how about obesity (with it's related health issues) being used to exclude perspective adoptive parents who have otherwise passed on all the tests and screening mechanisms?

Ashley's Mom, at Pipecleaner Dreams, tells of two different cases, one in the UK and one in Australia, where perspective adoptive parents were denied that right opportunity due to their weight.

READ MORE

'One Passenger, One Fare' Comes Home To Roost

If you're planning on doing any air travel any time soon, head over to Air Canada's site and check out their Extra Seating for Passengers with Special Needs page.

Making reservations for this summer, I was pleased to find that, in addition to other services*** offered to individuals with disabilities, and in compliance with the requirements of the Canadian Transportation Agency, as of January 9, 2009, Air Canada has passed its policy making available extra seating free of charge to passengers travelling within Canada who require additional space due their disabilities, including obesity, or to accommodate an attendant.

The procedure to be followed can be found here (and I would strongly recommend you read that before booking any tickets) and the medical form to be filled out by your attending physician and then returned to Air Canada can be found here.

A few other interesting points:

• Passengers who are quadriplegic may get permanent confirmation for an attendant. They must keep the Air Canada Medical Assistance Desk advised of any changes to the information they have provided in the Fitness for Travel form, or of any new medical condition.


• Passengers who are disabled by obesity will get confirmation for 2 years, unless there are other medical concerns. It is the passenger's responsibility to inform the Air Canada Medical Assistance Desk of any new medical concern, or of any significant changes to the information they have provided in Section 3 of the Fitness for Travel form.

Future travel for passengers with a long-term medical approval:
For all future travel, you will only be required to contact the Air Canada Medical Assistance Desk once you have booked your flight, and provide your booking information and authorization number. The medical information you will have provided on the 'Fitness for Travel' form will be on file. However, it is the passenger's responsibility to advise Air Canada of any changes to the information they provide on the Fitness for Travel form.

~ ~ ~ ~

Air Canada offers a Service for Unaccompanied Adult Requiring Assistance. [Ed. Who knew??]

Happy flying.

"We'd sit outside and watch the stars at night
She'd tell me to make a wish
I'd wish we both could fly"
— James McMurtry, the song 'Levelland.'

***The bottom third of this page has lots of useful info starting with the sections in grey entitled Extra Seating down to the bottom of the page.

New Year's Mish Mash ~ Warning: Long Post

A few items came across my desk in the last few days that, at first glance, might appear unrelated. Or are they?

Anyone recall a previous discussion about Nova Scotia implementing a 211 system?

211 is personal telephone access to information about the full range of social services offered in a local community. It is especially valuable to seniors, newcomers and persons with disabilities trying to navigate the maze of services delivered by multiple levels of government and private providers.

Today residents in large cities like Toronto, Edmonton and Calgary, as well as smaller cities such as Windsor, Niagara Falls and Simcoe have access to 211, 24-7. Callers always talk to people and never a machine. Three more 211 initiatives will launch in 2008 in Ottawa, Thunder Bay and Quebec City. The premier of British Columbia has recently announced the commitment to the first provincewide 211 service in the throne speech.

Well, apparently the push is on again. So just how is that going?

Ms. Woodman estimates it would cost $400,000 to get the system started, then about $900,000 a year to operate it.

She said Aliant has agreed to be a sponsor, and there are talks with other potential sponsors. She said the United Way’s current proposal is to pay half the startup cost, with the province paying the other half and most of the annual operating costs.

Service Nova Scotia Minister Jamie Muir said he needs to see more money from proponents on the table. He doesn’t want the province going it alone on the operating costs.

"Clearly, this enterprise is going to have to include more than just government if it’s going to work," he said.

Ms. Woodman said there have been talks with Citizenship and Immigration Canada, which provides money to other 211 systems because they help newcomers to the country.

Despite his reservations, Mr. Muir said 211 will get a fair shake in the current round of budget talks. After which he pointed out money will be particularly tight next year.

But as an interesting aside in this, the opposition parties want the government to fund the project rather than further burden the United Way.

"What I’m just seeing really is the government is avoiding its responsibility and trying to download again to the non-profit sector, which I think takes dollars then away from so many of the other services that they’d be trying to provide," Liberal MLA Diana Whalen said.

~ ~ ~ ~

Which ties in with an article in yesterday's Chronicle Herald, which I cannot for the life of me, seem to find an electronic version to link to. Anyway, it can be found on Page A7 of the January 7th edition of the Chronicle and is entitled "Meeting Basic Needs: Case for Charity or Human Rights Issue?".

The piece was written by Vince Calderhead, a Nova Scotia Legal Aid lawyer, who has been fighting poverty issues for years. In fact, he was one of the professors in my Poverty Law class way back in ... well, maybe both his sake and mine, we won't say how long ago that was. Just many years ago.

Vince notes that government is continuing to push more and more responsibility for basic rights onto the private sector.

Don't think so?

Consider this: in a recent compliance report with the United Nations on protecting the right to food, Nova Scotia stated:

Grants are provided by the provincial government to assist in the operation of food banks. As well, there are community organizations an churches that provide meals to people who are homeless and have low income.

In Vince's words:

So, there we have it. Having recognized the inadequacy of its own social assistance payments to people whom it has determined are in need, the province reports to the United Nations that it supplements its disastrous social assistance programs by way of government donations to food banks in the hope that they might be able to get the job done.

In 1998, the UN singled out Nova Scotia for its manifestly inadequate social assistance rates. While the National Council of Welfare reports that social assistance rates in Nova Scotia for single people, people with disabilities and single mothers continue to fall well below the low income cut-off and are, in fact, a fraction of social assistance rates provided 20 years ago.

And thus, we are being forced to face some fundamental questions. For example, is there a fundamental human right to food?

Vince argues, thus:

In the same way that we no longer tolerate poor people being forced to grovel in order to obtain necessary medical care - and respect everyone's right to medical care - so we should call upon our province to do the right ting and fulfill its obligation to ensure that everyone in Nova Scotia enjoys the right adequate food and shelter.

Quite frankly, I am not sure how far, I, personally, can travel down that road. Would I make the right to food a basic human right in Nova Scotia and obligate the government to feed us all? Of that, I am not so sure. Although I sure as heck would make a lot of other changes. And that's a promise.

But putting that question aside, the issue of the inadequacy of social assistance rates in this Province (which I fail to see how anyone could argue against) does highlight the issue of why vehicles like the Henson Trust and the RDSP are so important for individuals with disabilities in this Province.

~ ~ ~ ~

And raises the question of why it is so hard for people, in general, and governments, in particular, to change their way of doing things.

~ ~ ~ ~

Speaking of which ... did anyone else notice the two-step three-step shuffle?

Looks to me like just another example of the more things change ... well, you know the rest. Karen Casey moves from the Minister of Education to Minister of Health. Former teacher Judy Streatch moves from Minister of Community Services to Minister of Education. And Chris d'Entremont moves from Minister of Health to Minister of Community Services.

Funny how, with all the commentary, no one bothers to speculate on what it might mean for our community. Perhaps that because the answer is all too painfully obvious ... absolutely nothing?

Oh yeah .... nearly forgot!

HAPPY NEW YEAR

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.

For Those In The Know

We just added a rather long list of info on the Novel Tech Ethics' (Dalhousie University) new season of public education events towards the bottom of the greeen sidebar to your right under the "PLACES TO BE ~ Upcoming Events" heading which you might want to check out.

The public events, entitled “States of Mind 2009: A FILM SERIES WITH PANEL DISCUSSIONS ON THE ETHICS OF MENTAL HEALTH”, start with the movie MICHAEL CLAYTON (starring George Clooney) and feature 13 different panellists spread across four sessions on four consecutive Wednesday nights, beginning Jan.14, 2009. All screenings begin at 7:00PM at the QEII’s Royal Bank Theatre, Halifax Infirmary, 1796 Summer Street, Halifax, NS, unless otherwise stated.

All are welcome. No reservations. Come early, seating is limited.

So, check out the sidebar if'n you're interested.

Just So You Know ... Date For RDSP Extended

Just so you know ... it's still not too late to take advantage of the government's 2008 Grant and Bond even if you haven't yet gotten around to opening a RDSP.

While you were no doubt dreaming of sugar plums (or, at the very least, the incoming bills demanding immediate payment for said sugar plums), the federal government announced on December 23, 2008, that any contributions made to a RDSP by March 2, 2009, will be considered as 2008 contributions and thus eligible for the Grant and Bond.

Which is good news considering that when 2008 ended, the Bank of Montreal was still the only bank offering the RDSP. Between that and Christmas, there's a fair chance that many of us might not have gotten around to doing what we know we need to. So here's you chance.

Just remember that magic date ~ March 2, 2009.

H/T to RDSP Blog

Simple Truths

And so we come to the end of one year and the beginning of yet another.

A time when some will care to make resolutions as to what and how they will do things differently in the new year. To be followed by a time when many of those grand plans will fall by the wayside.

May I suggest that instead of New Year's Resolutions, we strive to follow and remember these simple truths.

Simple. Beautiful. Timeless.

Check them out and see if they might fit your life. I know they do mine.

And Now For Something Completely Animated ...

'Tis the season (to be busy).

That and some very sad news on the homefront recently caused me to miss the 60th Anniversary of the Universal Declaration on Human Rights. But we will make up for that regrettable state of affairs with this animated video.



Better late than never, as they say.

H/T to Law Eddie

Update: I would be remiss not to mention that in observance of the Anniversary, with the assistance of the various Community Living Associations across the country, letters were written to Amnesty International by Canadians from coast to coast to Coast concerning the continued institutionalization of people with intellectual disabilities in Canada.

Obesity as a Disability

And now for something a little different ...

You will recall our previous discussions around the release earlier this year of a landmark decision by the Canadian Transportation Agency (CTA) concerning the right of individuals with disabilities to travel by air without having to pay for a second seat, for an attendant or other use, to accommodate their disability.

I am pleased to grant the request of Ms. Kelly Kilpatrick to write a guest post on a slightly different aspect aspect of this decision, as set out below.

After all, the issue of who is included and who is exluded from participation in a particular group is certainly one that strikes a chord among the disability community. But what about the question of who exactly is included by the term "disability"?

Something to think about ...

Obesity as a Disability

I almost don't want to touch this one because it's such a hot button issue for so many. The Canadian Supreme Court ruled that is requiring airlines based in that country to accommodate disabled and obese passengers when they need an additional seat or an attendant to accompany them.

The Supreme Court of Canada had refused to hear an appeal from Air Canada, upholding a Transportation Agency ruling ordering carriers to charge all passengers the same fare and not make people pay extra when they need an additional seat for medical reasons.

Whether or not obesity should be defined as a disability in legal terms remains hotly contested. Many feel the obese are NOT disabled because for the vast majority of obese people, there is no medical reason for their obesity. Their size is largely due to high-calorie diets and low activity levels.

There is no doubt that the debate over the obesity issue as a medical condition will only continue to grow as the battle over coveted and expensive airline seats rages on.

Obese people are getting more of the treatment reserved for the disabled. Many are able to secure handicapped parking permits and preferred parking. There have even been some cases where obese people attempt to sue for disability payments. But is this fair? After all, obesity is not caused by an injury or disease (yes, obesity is itself a disease). There are many corresponding and disabling conditions associated with obesity that cause significant mobility impairment and some conditions that can be fatal if not controlled.

But, what makes a person disabled? Is it merely the fact that, no matter how you got to that point, there are things you can no longer do or activities for which you require extra assistance?

The issue of obesity-caused disability will only worsen as time goes on and the number of obese Canadians skyrockets. Obesity has reached epidemic proportions and we, as a nation, will need to decide if accommodating the limitations people place on themselves by being obese make sense or if they only enable those suffering from it.

By-line:
This post was contributed by Kelly Kilpatrick, who writes on the subject of a nursing assistant. She invites your feedback at kellykilpatrick24 at gmail dot com

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?