Law, Disability & Social Change

Sharing reflections on current events relating to law, disability and social change through the perspective of critical disability theory. By students in Windsor Law’s Law, Disability & Social Change seminar, fall semester, 2015 and other Windsor Law students interested in promoting an inclusive society.

 

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Student Research Papers
A selection of student research papers from Windsor Law students on pertinent issues relating to Law, Disability & Social Change. Opinions expressed are those of the authors; nothing on this website constitutes legal advice.

A Literature Review of Theoretical Disability Literature as it Relates to Advocacy(docx) (pdf)

– by Shanae Soor, JD 2017, Windsor Law

Access to Information and the AODA: A Discrete Concern for Persons with Disabilities in Light of Communication Technology (Dec., 2015)(docx) (pdf)

– by Krysten Bortolotti, JD 2016 & Anne Olszewski, JD 2016, Windsor Law

All Aboard! (Except You): The Illusory Guarantee of Access to Transportation for Persons with Disabilities and their Service Animals (Dec., 2015) (docx) (pdf)

– by Carolina Recinos, JD 2016, & Victor Wong, JD 2016,  Windsor Law

Anti-Subordination and Booking Para-Transit Services:  Moving Beyond an Integrationist-Separatist Dichotomy (Dec., 2015) (docx) (pdf)

-by Britney De Costa, MSW/JD 2016, Windsor Law

 

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Critical Op-ed Series

Reproductive Rights, Sterilization, and Disability

By: Shanae Soor, JD 2017, University of Windsor, Faculty of Law

Date Posted: March 21, 2016

Sterilization & prenatal screening in Canada contain overly medical attitudes. We must include persons with disabilities in law making with regard to these areas if we hope to maintain a balance between medical capability, and morality.

The topic of forced sterilization is a serious stain on Canada’s history, often associated with eugenics. While many would like to think this an issue of the past, it remains relevant in the attitudes with which we approach sterilization and reproductive rights, like prenatal screening, today.

Between 1928 and 1972, the Alberta government alone approved 4,725 sterilizations. Following the 1996 case of Lelani Muir, the Alberta government has apologized for the forced sterilization and awarded $142 million in damages.

What is the predominant legal stance on sterilization in the Commonwealth? E. (Mrs.) v. Eve tells us that sterilization cannot be ordered without consent, unless it is for therapeutic reasons. A British case, Re B. (a minor) [1987] 2 All E.R. 206 (H.L.), advocates for forced sterilization in cases where it is in the best interests of the individual. These two opposing cases —Eve fairly restrictive and Re B significantly looser — demonstrate the confusion within legal stances on how to handle sterilization.

There is much debate around sterilization and the social problems it purports to solve. Tort law cases spend a lot of time trying to create objective standards that distinguish disability (Dwight Newman, “An Examination of Saskatchewan Law on the Sterilization of Persons with Mental Disabilities” (1999) 62 Sask. L. Rev. 329 – 346) These objective standards are problematic in that they make assumptions about disability. Before Sign Language, some medical personnel made the assumption that individuals who are deaf were incapable of communication and therefore could not understand the consequences of intimacy and should be sterilized. But that’s not necessarily true. In the case of Lelani Muir, she was diagnosed as a “mental defective” and a “moron”, largely if not entirely based on the information provided by her mother.

The issue with justifying sterilization is that we are defaulting to medical prevention and remedy without any consideration for social solutions. Arguments have been made that sterilization could help limit things like the aftermath of sexual abuse. There is a fundamental problem with turning immediately to medical prevention instead of turning to society to prevent such experiences from happening in the first place. An approach based on the social model of disability would tell us it is not the individual with the disability whom we should monitor, but rather those who would seek to harm them.

Moreover, now that modern medicine has certain means of controlling disability through prenatal screening, sterilization has become part of an even larger discussion on reproductive rights. The very medical attitude that stemmed from early sterilization efforts in Canada continues in the current application of tort law.

The medical model treats disability as a defect and aims to identify and cure it as much as possible. In sterilization debates, the medical model has materialized as an attempt to eliminate undesired characteristics by identifying those with said characteristics and preventing them from reproducing. In prenatal screening, parents seek to influence the genetic characteristics of their unborn child by having the option of terminating the birth of individuals with characteristics they claim to be undesirable.

The social model of looking at disability attempts to connect disability issues with the environments and attitudes that create discriminatory boundaries for disability. This model operates from a stance of social inclusion, very much in line with the legal, social, and economic equality that section 15 of the Charter aims to foster. The medical perception of disability as representing “defective” as compared to “normal” bodies goes against the social model and arguably, section 15 of the Charter.

Prenatal screening has been making news as new DNA-based blood tests were recently developed. According to news reports, these tests are able to better detect possible Down syndrome in fetuses than standard screening methods. A heavy emphasis is placed on the clinical accuracy and detection of birth defects. Yet, there is little to no mention in the news of the moral repercussions of such a test, nor any discussion about the fetus being subjected to the test. The only points at which these moral questions are explored are when persons with disabilities, parents, guardians, and everyday people bring them up.

A social model lens might examine prenatal testing with recognition and resistance to certain medical concepts engrained during the era of sterilization. It would examine whether choice really exists in prenatal screening: by providing no real alternative to the termination of pregnancy the medical model justifies termination to end suffering and eradicate disability just as sterilization promised to do in earlier times (cf. Aloke Chatterjee, “Reinforcing Discriminatory Attitudes and Stereotypes about Disability through the Law: Prenatal Screening and Actions for ‘Wrongful Birth’” (2009), 44 Supreme Court Law Review (2d) 181). The way in which the issue of prenatal screening for Down syndrome is articulated in the news provides no alternatives and focuses entirely on the conceptualization of Down syndrome as a disease. No consideration is given to the ways in which society limits disability, and the entire blame for challenges persons with disabilities face is attributed to the disability.

How does this carry over into the courts? The case of Arndt v Smith explores the “reasonable mother” and suggests that a reasonable mother would test for disability and may consider termination if undesirable characteristics are found. News coverage of prenatal screening reaffirms this. The policy repercussions are even more profound. It is problematic that detection of a disability and the emphasis on termination reduces the whole person to one genetic feature, and views the person as genes instead of as a human being.

We must recognize that it is not necessarily the able-bodied who should be making assessments about sterilization; we must employ inclusivity in the law-making process. Additionally, we must turn to legislation and work to emphasize social attitudes and autonomy, instead of treating disability with the awkwardness and avoidance that the medical model instills.

 

Canadians with Disabilities Act: Have we reached a tipping point?

By: Britney De Costa, MSW/JD 2016, University of Windsor, Faculty of Law

Date Posted: February 24, 2016

Does the Liberal government’s appointment of Minister Carla Qualtrough as Minister of Sport and Disability and a commitment to the passage of a Canadians with Disabilities Act signal a tipping point for disability rights and policy reform in Canada?

It would be optimistic to say ‘yes’, given Minister Qualtrough’s identification with the disability community, and the Liberal government’s prioritizing of the passage of a Canadians with Disabilities Act seen in the Prime Minister’s mandate letter to Minister Qualtrough. However, we must be wary of accepting one example of representation in government and promises of new legislation as signs that all is well for the disability community when it comes to disability rights and policy reform. Unless the Liberal government actively and meaningfully engages the disability community in the creation and implementation of this new legislation, the potential for this moment to be a tipping point for disability rights and policy reform will be lost. We cannot let that happen. Our government cannot let that happen.

A commitment to the passage of a Canadians with Disabilities Act, under the newly appointed Minister Qualtrough, signals the Liberal government’s focus on reducing barriers for Canadians with disabilities. However, in order for the Liberal government to do more than pay lip service to the needs of the disability community, there are a few things they need to keep in mind.

First, the disability community is broad and diverse and needs to be represented as such. Although it is a positive step to have a person with a disability – Minister Qualtrough – as a representative in a cabinet position, one experience cannot speak to the needs of each of the estimated 3.8 million Canadians reported to being living with a disability. The disability community is not a homogenous group that can easily be captured in one person’s lived experience – nor should it be. The social, economic, and physical barriers that shape the experiences of persons with disabilities can manifest in different ways for different persons, dependent not only on the category of disability they fall under, but also on the intersectionalities of their lived experiences such as their gender, race, sexuality, socioeconomic status, etc. One person cannot truly understand all of these experiences, especially without listening to the voices of those who live at these intersections. Therefore, it is imperative that Minister Qualtrough, while a positive representative in the cabinet, is not seen as the face or voice of all persons with disabilities.

Further, meaningful engagement of the disability community must be more than mere tokenism. Consultation and collaboration with the disability community are essential elements for ensuring that the voices of the disability community are the driving force behind the development of new federal disability legislation. In the drafting of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD), the inclusion of persons with disabilities was paramount and exemplified in the guiding philosophy – “nothing about us with us”. This philosophy must be upheld in the development of a Canadians with Disabilities Act. Nothing about us without us: It’s a fairly simple concept that has a powerful impact, and it’s plausible – it’s been done before. The drafting of the CRPD is one example, and here in Ontario the consultation process for the Accessibility for Ontarians with Disabilities Act (AODA) is another. However, these examples should not be taken as gold star examples. Instead, we should maintain the philosophy while improving on the pitfalls of previous examples. As with anything, we must learn from our mistakes, but that doesn’t mean we have to give up our vision – nothing about us without us.

Finally, the government must take responsibility for ensuring that the diverse voices of the disability community are heard and meaningfully engaged. Canada has an active and vocal disability community that has been demanding the passage of a Canadians with Disabilities Act. Groups like the Council of Canadians with Disabilities (CCD) have given voice to many of the needs and challenges faced by members of the disability community that could be mitigated by the implemented of federal legislation. A quick search of the #CanadianswithDisabilitiesAct hashtag on Twitter paints a broader picture of the community of disability activists contributing to the discussion around this promised legislation. The disability community is already clearly engaged in this discussion. It is therefore the federal government’s responsibility to take these voices seriously and to include them in policy development.

The appointment of Minister Qualtrough to the federal cabinet as Minister of Sport and Disability is a victory for representation of persons with disabilities in government, and the promise of a Canadians with Disabilities Act has the potential to be a tipping point for disability rights in Canada. However, unless the federal government acknowledges the diversity within the disability community, and maintains the “nothing about us without us” philosophy in its policy development, the potential for this moment could be lost. Our government has a responsibility to deliver on its promises and to take hold of every opportunity to make Canada barrier-free and accessible for all. This is one of those moments.

 

New Law Restricting Tax Consultants’ Fees on Disability Tax Claims

By: Victor Wong, 3L Student, Windsor Law

Date Posted: February 16, 2016

When the government gives out tax breaks, shouldn’t people be able to claim them?

Anybody who has dealt with the Taxman would answer with an emphatic yes. After all, the government is giving out money, and that money ostensibly contributes to society’s wellbeing. For example, small businesses, families, and students all have tax programs designed to ensure some form of financial relief at the end of the fiscal year. The image this brings to mind is that people go out to make their living, file their taxes, and get a refund every spring. Que sera sera. By extension, disability tax credits designed for persons with disabilities should be no different. But of the 1.1 million Canadians eligible, nearly half do not make a claim, and a sizeable number of those who do make a claim get scammed by predatory tax consultants.

So why aren’t eligible persons signing up?

One need to look no further than the eligibility requirements built into the tax credit itself. For instance, potential applicants are lumped into one homogenous “disabled” mass by medical eligibility requirements, where only those with “recognized” disabilities can receive the tax break. As a consequence, the application must be filled out by a healthcare professional in order to certify an applicant’s disabled status. Therefore, many with unrecognized disabilities, and those without access to qualified healthcare professionals cannot apply.

Stacking this barrier even higher is the requirement that any payout is contingent on pre-existing income. The tax credit is a non-refundable one, which means you can only make a claim against your income to offset expenses. But a disproportionate number of eligible applicants belong to high risk groups for unemployment and underemployability, and many in this camp live on social assistance programs anyway. As a result, the number of people this tax credit can help narrows even further.

This creates a space for scammers to get involved.

The process is designed such that applicants need to vault a series of hurdles in order to make their claim successfully. Forms confirming disability status eligibility and income verification each need time and care to fill out. And although we might say that it’s commonplace for tax credits to be complicated, keep in mind that many who are eligible for the tax benefit are already persons who may not have the resources or wherewithal to navigate the system. Hampered with convoluted rules, and nearly inaccessible processes, many eligible persons have been prevented from claiming money they sorely need. The complexity of the system therefore creates a market for third party private-sector consultants who would charge inordinate amount of service fees to help, potentially taking up a large chunk of an applicant’s tax credit payout. But these fees are eagerly paid out since they could represent a tax break of thousands of dollars in addition to very little income.

Fortunately, the government has attempted to redress this issue by passing a law restricting the fees tax consultants can potentially charge on a disability tax claim file. But red tape and political circumstance has meant that the law hasn’t yet come into force, and ever since the recent 2015 federal election there is no indication when it will – and it’s already been a year in the making.

Where a policy instrument is designed to help a disenfranchised group, it’s probably best to leave goodwill gestures at the door. While it’s true that many well-to-do disabled members of society can and do benefit from a robust disability tax credit program, more ought to be done to expand this program’s inclusiveness. The reality is that many Canadians who experience disability also suffer from poverty. And given that the tax credit is aimed at giving tax relief for “individuals who have a severe and prolonged impairment” it seems as though the complex nature of the program itself indicates a deeply held misunderstanding of what Canadians with disabilities need from their government. As a result, it seems that Parliament Hill ought to do well – now more than ever with the newly formed government that includes two cabinet ministers who are themselves members of the disabled community – to consider a better formulation of this tax credit that reflects experiences of disability and poverty. Otherwise, we may risk installing outdated social biases against Canadians with disabilities into our tax system.

That’s not to say that there aren’t generous government programs available to persons with disabilities. In Ontario, existing laws guarantee income support and employment benefits, and a dedicated government ministry actively engages the public for ongoing policy development. So it’s entirely possible to build a better, and more effective regime. Canadians with disabilities have benefitted from legal and political guarantees ensuring, among other things, equal treatment in the socioeconomic sphere. However, meaningful interpretation of these laws and active participation with government is the only way forward. Without this, tokenistic policies and politically attractive posturing that does nothing for Canadians with disabilities leave those in need out in the cold.

The lack of intergovernmental coordination, and the absence of general recognition of the financial needs plaguing the disabled community create shortfalls in oversight. Worse still, it may create a false sense of progress in advancing the needs of Canadians with disabilities. We ought to take advantage of the existing avenues to government that would allow us to more thoroughly consider the ways which these laws and guarantees can be harnessed to correct policy errors. Only then, when these errors are corrected, and a more faithful understanding of how the lived realities of disabled Canadians impact their daily lives are introduced into the halls of government, can law and policy slowly harmonize with real social change

 

Rethinking The Ontario Disability Support Program Act

By: Anchal Bhatia, 2L Student, Windsor Law

Date Posted: January 29, 2016

ODSP is based on asking people with disabilities to constantly prove their struggles. It is time we rethink the ODSPA.

In May 2015, there were significant discussions surrounding the backlog of medical reviews for people on the Ontario Disability Support Program (ODSP). The Toronto Star featured an article regarding disability welfare reviews and one on the difficulty of maintaining benefits that indicate the impact of the intensive review process. Despite the focus on disability reviews and how the most vulnerable people could lose their right to benefits being received, the articles indicate that similar risks exist within the initial process of applying for disability eligibility. This is because current process is inefficient: it does not account for the possible barriers experienced by recipients, is detrimental to the wellbeing of beneficiaries, and creates and perpetuates a discriminatory environment.

The Ontario Disability Support Program Act (ODSPA) provides the raison d’être for the Ontario Disability Support Program (ODSP). The Act and its regulations describe who is eligible for ODSP, and its procedural process. The ODSPA defines a person to be one with a disability if: (a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more (b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in substantial restrictions in one or more of these activities of daily living and (c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications. Fifty percent (50 %) of applicants are rejected on these criteria because they are found to not have a substantial restriction. Though the limitations only have to apply to one or more daily activities, adjudicators refuse disability benefits, claiming the person can avoid specific restrictions and therefore imply an individual is not “disabled enough”. Even those who are granted benefits are assumed to be able-bodied individuals at their medical review and must prove again that they are eligible under the Act. An individual has to complete a medical review if they have been selected as one of the 600 per month the government wants to review or if their decision had a review date decided by the adjudicator. The articles illustrate how inefficient the process is for those receiving disability benefits. For instance, gathering evidence for the application may be nearly impossible because of transient relations with healthcare providers. This prevents benefit recipients from collecting adequate evidence to meet the qualifications under the Act. Similarly, these barriers may exist for those applying for ODSP for the first time.

The articles speak about how gathering evidence can impede wellbeing, and that the process is extremely detrimental for individuals who lack the information, support or guidance. Yet, it can be equally detrimental for those who have support. It can be frustrating and patronizing to have abled individuals decide what is “enough” of a disability. ARCH submits there should not be distinctions on ability to work, or severity. They argue that such distinctions create arbitrary and discriminatory assumptions; leading people who have “non-severe” disabilities but face major barriers to employment or social inclusion to fall to the wayside. However, the analysis of severity is the cornerstone of the ODSPA. Adjudicators use their discretion to determine if the individual has a substantial enough restriction. Those not determined to have a disability lose out on essential benefits that decrease barriers; not being validated has also led to emotional instability. The system places an onus on the individual to fit into society. In addition to the invalidation, applicants are penalized when they are able to find strategies to circumvent the full impact of their restrictions because they are not seen as disabled enough. This leaves a very narrow definition of who is accepted as deserving of state support.

It is time to radically revise the starting premise for disability support eligibility to put more faith in those who self-identify as persons with disabilities. From the perspective of the government it is difficult to balance their limited resources with and ever growing need for these benefits. However, if we started at the position of accepting all applicants as disabled, it would be easier to strike that balance. It would support a more social model of disability because it would be assume every individual faces barriers and so the process itself would need room for accommodation. This is more aligned with the purpose of the ODSPA that “recognizes that government, communities, families and individuals share responsibility for providing such supports”, shifts the onus on how to remove barriers and dispel beliefs about people with disabilities being lazy and manipulative. Therefore, while the process may have frustrating aspects, there would be a positive shift in how people with disabilities are viewed. It would hopefully also show that abled-individuals are not indifferent to the plight of those who face a disability

This starting point of the process would be to examine each case on an individual basis to understand what accommodations are needed, instead of providing benefits with broad strokes. By acknowledging everyone has a disability; individuals might still be denied because they do not have enough of a financial need or directed elsewhere for accommodation The key question is would it be less frustrating than being told you are not disabled and therefore do not deserve accommodations. By validating someone’s truth, it can help reduce the emotional effects that exacerbate illness and impairments and show that our society is genuinely attempting to become more inclusive. It would encourage abled-focused institutions and ODSP to accommodate to the point of undue hardship, as promised in the Human Rights Code.

That is not to say the process has to no room for reviews; however, they shouldn’t be conducted with the purpose of trying to find those who are no longer eligible for the benefit, but rather to ask how the needs of the recipient has changed. This is different than the 2011 Social Assistance Review in Ontario (Brighter Prospects: Transforming Social Assistance in Ontario) which suggests various benefits that go beyond on the realm of simply supplementing income to A system that takes the time to understand what accommodations are needed for a particular person’s case might realize that they need money temporarily but are in more need of the employment program. A screening process that allows for a more complete picture of the person’s life is required. For example, the ability to allow non-health practitioners to provide evidence regarding an individual’s restrictions because not everyone has consistent doctors who know to speak of those details.

The articles emphasize the need for an efficient process, but it is also time to remove the discriminatory viewpoint that the legislation holds. Before any reform can take place extensive consultations should occur on how the process can make individuals feel validated and supported while making hard decisions on how resources can be effectively shared. The consultations from 2011, focused greatly on improving the current system to make it more effective. While that will continue to be a feature, there needs to be a shift of perspective tobeing more accepting of peoples’ truth and finding concrete ways to ensure that is occurring. But, reforming the legislation to allow room for accepting everyone who identifies as disabled would be beneficial in reducing the agony that is present with being told you do not understand your own experiences. After all, what is being said when ODSP sends a letter stating the applicant is not disabled after engaging the applicant in such an extensive process.

An individual-focused system may seem to make the job too large and more tedious. In the beginning the process might be difficult, but with time, it would hopefully become easier and faster to employ. In addition, while examining individuals’ specific needs, creative solutions will arise that allow for the integration of other systemic programs to ensure equality and further inclusion for people with disabilities. It is also possible that accepting all applicants as disabled may not be enough to reduce frustration for a significant amount of people with disability, but I do believe that by at least starting the discussion, the door to more genuine integration will be opened.

 

Physician-Assisted Dying: The Federal Government’s Request for Extension 

By: Nsamba Gerald, 3L Student, Windsor Law

Date Posted: December 19, 2015

Legalizing assisted suicide would not increase choice and self-determination, despite the assertions of the Canadian Supreme Court ruling in Carter v. Canada (Attorney General), 2015 SCC 5 . It would in fact augment real dangers that negate genuine choice and control. The assisted suicide model is an act executed by professional medical personnel with the intention to end the life of the person who considers his or her life to be no longer worth living.

For some individuals, this medical service model brings an end to unbearable suffering. Section 241 of Criminal Code of Canada stated that anyone who counsels a person to commit suicide, or aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and may receive a term of imprisonment not exceeding fourteen years. The Canadian Supreme Court’s ruling in favour of the assisted suicide model rendered the provision inoperative.

There are benefits and disadvantages to ruling in favour of this assisted suicide model. For instance, the benefits of assisted suicide model provide the relief of extreme pain when a person’s quality of life is poor. This model frees medical funds to assist other people. It is also another case of freedom of choice. However, some of its disadvantages would be to devalue human life and this could become a means of healthcare cost containment. Thus, physicians and other medical care personnel should not be involved in directly causing deaths.

The Court stated that the model of doctor- assisted suicide is limited to consenting adults who are “suffering from grievous and irremediable medical conditions” but not necessarily terminal disease that causes “enduring and intolerable suffering”.

The assisted suicide decision suggests that patients who request the assisted suicide model must be able to communicate with the physicians. This requirement excludes people who are unable to speak, but may desire that their lives be ended through the model. Patients who are unable to communicate with physicians are disqualified or excluded.

Similarly, if someone has a chronic illness that is not  a “grievous and irremediable medical condition”, they are not eligible for assisted suicide under this ruling. Furthermore, any individual whose illness has brought about depression that affects their judgment is also ineligible.

Moreover, legalizing physician-assisted suicide would place those who are depressed, poor, disabled or elderly at risk. The Canadian Supreme Court ruling essentially tells the vulnerable that they are a burden to society. Patients who lack emotional support and psychological care could be more likely to internalize that message. When someone else is suicidal, society would get them help by sending them to a medical doctor. We would not hand him or her a loaded gun to expedite his or her death.

Legalizing assisted suicide would also affect socially and economically disadvantaged people who have less access to medical resources and who already find that the health care system discriminates against them. As Paul Longmore stated, “Poor people, people of colour, elderly people, people with chronic or progressive conditions or disabilities, and anyone who is, in fact, terminally ill will find themselves at serious risk”.

Fear, bias, and prejudice against disability could play an important role in assisted suicide. Supporters of assisted suicide argue that it would relieve untreated pain and discomfort at the end of life. However, patients who wish to request the assisted suicide model may not do so because of pain, but rather because of frustration stemming from the loss of their functional ability, autonomy, or control of their bodily functions.

In the Netherlands, many physicians stated that the main reason patients gave for seeking death was a “loss of dignity.” This loss of dignity may result from a decrease in autonomy, which could be the inability to get out of bed or use the toilet.

In the state of Oregon, one report found that 63% of cases cited the fear of being a “burden on family, friends or caregivers” as a reason for their suicide. This is very troubling as many innocent people could lose their lives due to pressure by family members who wish to eliminate unwanted burdens. Elderly individuals who do not want to be a financial burden upon their families might also request the assisted suicide model as it would eliminate their family’s obligations to them.

In this case, individuals with disabilities could be the most likely to end their lives. The experiences in the Netherlands show that legalizing assisted suicide could place strong, unwarranted pressures on individuals and families to utilize that option, which would lead very quickly to coercion and involuntary assisted suicide. A study in Oregon also found that the estimated savings of allowing people to die before their last month of life is $627 million.

In conclusion, the assisted suicide medical model needs to be about free choice and self-determination and government needs to undertake precautions whilst implementing this model. On December 15, 2015, The External Panel on Options for a Legislative Response to Carter v. Canada submitted its key findings from its consultations to the federal government, although those findings have not yet been released publicly. The federal government, for its part, has filed for more time to come up with suitable measures that would be utilized in implementing the assisted suicide procedures, and guide physicians in hospitals. This is a positive step in the search for an appropriate approach to this serious issue.

 

Autism-Inclusive Employment Resources

Autism inclusive employment resources in Newfoundland fail to compensate for poor government intervention

By: Jade Standaloft, 2015 L.L.B., University of Tasmania.

Date Posted: December 12, 2015

Another positive step in autism promotion has been taken recently with the introduction of  a new jobseekers’ database, aimed at connecting those on the autism spectrum with employers. The database, developed by Ready, Willing and Able and the Autism Society of Newfoundland and Labrador, works to provide those not already engaged with a formal employment service with the opportunity to find diagnosis-appropriate employment – something currently unavailable to the 1 in 4 unemployed adults with intellectual disabilities or an Autism Spectrum Disorder diagnosis.

Autism operates within the broader category of Autism Spectrum Disorders, and is characterised by qualitative impairment in social interaction and communication. As a result, those with autism may be ill-suited to an unaccommodating workplace and therefore may struggle to find steady employment and gain self-sufficiency and independence within society. Such initiatives indicate a hopeful movement away from the medical model of disability, which by its nature discourages the necessary workplace accommodations.

Joseph Straus has defined the medical model as identifying disability as a pathological deficit, where the disability of the individual is indicative of a deviation from the norm and is therefore in need of remedying, in order for the individual to assimilate into society. By contrast, the social model has been defined by Anita Silvers as treating disability as a social construct, identifying the need for change as lying with the broader society, rather than the individual themselves. While these models are neither exclusive nor comprehensive of broader disability discourse, they do represent the most common characterisations of disability. The introduction of measures such as jobseekers’ database created by  Ready, Willing and Able  indicates a promotion of this latter model in the broader community. However, small progresses should not be misconstrued as a broader societal shift, particularly as the website was established by an autism society, and not by a broader government initiative to promote autism inclusion. Such initiatives still remain an exception to the norm, are frequently privately established, and signify that significantly more needs to be done on a government level for an autism-inclusive society to be prevalent in Canada.

For example, severe issues still exist in autistic therapy funding, particularly  in relation to early childhood support. As reported by the Parliament of Canada,  in British Columbia, families are only authorised to claim up to $20,000 a year per child under six years old for ABA/IBI programs; this amount drops to $6,000 when the child is over six. Manitoba also restricts support to $6000 per year per child for pre-school and school-aged services, while Prince Edward Island offers approximately $10,000 per child, per year for preschool children. Nunavut has no autism specific programs at all. Newfoundland and Labrador, , allocates $40,000 per year for two years during infancy, and a further $10,000 for one year for children over six years old. While these may seem like significant amounts of money, the average cost for these services run upwards of $60,000 annually, a number which does not consider other expenses that may be incurred  while raising a special needs child. Therefore, the financial pressure for families is still extraordinarily high, and may restrict the provision of support for children in need.

 

Isolation Rooms

By: Anne Olszewski, J.D. 2016, University of Windsor Faculty of Law

Date Posted: November 16, 2015

Should governments ban isolation rooms in Canadian schools?

A Toronto mother of an autistic child certainly thinks so. Karen Thorndyke  and her family are suing their district school board for $16 million claiming their autistic son was repeatedly kept in an “isolation room” as punishment for his outbursts and misbehavior  in the classroom. The allegations have not been proven in court.

It is likely that Canadians are, for the most part, unaware of how common isolation rooms are. They come in variety of names including “seclusion rooms” “scream rooms” and the public relations friendly “alternative learning rooms”. Often times, they are small windowless rooms where children are sent when they misbehave in the classroom. The rooms are locked and the amount of time the child spends in isolation varies.

The report contends that brief physical intervention used to stop an immediate and serious danger to the child or others may be appropriate in the case of an emergency. However, the ongoing use of restraint as punishment or in the guise of treatment for a child’s disability or behavior indicates a need for program revision.

Article 24 of the (CRPD) states,

1. “Parties shall ensure an inclusive education system at all levels and lifelong learning directed to:

(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; […]

2. In realizing this right, States Parties shall ensure that:

[…](e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion.

Choosing to administer isolation rooms as a way of behaviour control may systemically discriminate against children with disabilities depriving them of an inclusive education. While the rooms are not specifically for the use of children with special needs, the behaviour, ticks, and outbursts that the rooms are meant to calm are typically associated with disabilities such as autism or downs syndrome. It follows, that children with disabilities are often sent to isolation rooms at a higher frequency than children who do not present these behaviours. For those children, the rooms cause more harm than good, with survey respondents reporting children feeling traumatized, fear and anxiety while in the rooms and afterwards.

According to Article 23 of the  (CRC), “children who have a disability have the right to special care and support, so that they can live full and independent lives.” Further, Article 28 provides that, “the child has the right to education; the State has a duty to make primary education compulsory and free to all; to take measures to develop different forms of secondary education and to make this accessible to all children. School discipline should be administered in a manner consistent with the child’s human dignity and developing respect for the natural environment.”

Canada has committed to the protection of these rights and yet the reality is that many school boards continue to deprive children of their right to inclusive education. In the 2011 Ontario Special Education Tribunal decision of M. S. v. Ottawa Catholic District School Board, a student identified with autism had been suspended from school for extended periods of time, missing 32 out of 51 days in 2009. Since April 2009, the student had not attended school in spite of being of compulsory school age. This was yet another example of the school board’s inability or unwillingness to accommodate the needs of children with disabilities.

The school board’s actions indicated a worrisome message that is mirrored in the use of isolation rooms. It is easier for the school to remove a child with disabilities from the classroom than to provide integration and accommodation.

The Tribunal found in favour of the child and ordered the parties to facilitate the student’s return to school with special education services provided. While this case demonstrated the Tribunal’s commitment to the best interests of the student, the fact remains that the order was a reactive remedy for the school board’s inability to provide education in accordance to the CRC and the CRPD.

Additionally, proponents of the medical/individual model of disability theorize that the “problem” of disability lies with the individual, and it is up to society to provide medical assistance from professionals to correct said problem. However, even if one supports the medical model which is controversial, the idea of isolation room as a solution fails yet again as there is no evidence that isolation rooms actually benefit the child. In fact, some would argue that they do more harm than good, increasing anxiety and feelings of isolation, which can lead to further disruptive and harmful behaviour. 

Largely due to children’s rights advocacy groups, lawmakers have been considering the legality of isolation rooms. A 2015 report analyzing state seclusion and restraint laws in the United States provided that some jurisdictions have passed meaningful laws regulating the use of isolation rooms. One such jurisdiction is Alaska where section 14.33.125 of the Alaska Administrative Code regulates student restraint and seclusion. These provisions demand annual reviews of the program, describe when a child may be secluded, and importantly, order that parents are provided a report documenting the incident.

Canada does not yet have equivalent regulations in this regard. Isolation rooms deprive children of their protected human right to education; they systematically discriminate against children with disabilities and further aggravate issues these children live with every day including stigmatization, isolation and anxiety. It is time for Canadian lawmakers, school boards, teachers and administrators to make a change towards a proactive and inclusive classroom, doing away with the use of isolation rooms for the benefit of all children.

 

Inadequate Funding for Special Education: Looking at the Bigger Picture

By: Krysten Bortolotti, J.D. 2016, University of Windsor Faculty of Law

Date Posted: November 10, 2015

The Moore v British Columbia decision in 2012 was seen as a huge victory when the Supreme Court of Canada unanimously found that all school districts must take a proactive approach to budgeting and programming to ensure the rights of students with disabilities and their accommodation are taken into account. With that ruling many people thought that the disability rights of children in education would improve drastically.

A recent 2014/2015 parental survey report by the BC Parents of Special Needs Children confirms that the current fiscal funding in British Columbia’s public education services for children with disabilities is inadequate. The report shows many parents (51%) have removed their child from public education and others have even been forced out (31%). Areas that parents identified as providing inadequate support to their children with a disability included the lack of educational assistants and access to specialized services that had been prescribed for their child (such as occupational/physical therapy and speech/language therapy). Finally, the report sheds light on the fact that the school boards in British Columbia aren’t following the policies and procedures created by the Ministry of Education. For example, many parents indicated that the Individual Education Plans (IEPs) prescribed for their children were not being followed by some school boards. The failure of the school boards to implement these plans goes directly against the British Columbia Ministry of Education’s policy under the Individual Education Plan Order, which explicitly states:

(5) Where a board is required to provide an IEP for a student under this order, the Board must offer each student learning activities in accordance with the IEP designed for that student.

The same can also be said for Ontario, which recently announced changes to the formula for special education funding for school boards, forcing boards to cut back on support services for students with disabilities. In March of this year, the Toronto Star reported that 38 boards across Ontario will receive less special education funding than they did in their previous year despite the fact that demand for funding of these programs has continued to increase over the years. Previously, the Ministry of Education allocated funding on a “per pupil basis”, but the changes to the formula were the result of an effort by the government to address the inequity of funding among the boards as well as declining enrolment. These changes to the funding formula occurred in March 2014, when the Ministry announced a four-year transition to a new “high needs amount allocation” formula for special education. Instead of adding more funding to those boards receiving less funding, the Ministry decided to “redistribute” the funding. For the boards receiving more funding per pupil under the old formula, they have had to cut crucial special education tools that they had implemented and built up over years of funding.

These cuts have a drastic impact on the education received by children with disabilities. According to the organization, People for Education, more than 331,000 students receive special education support. Sadly, 57% of elementary and 53% of secondary school principals report restrictions on waiting lists for Special Ed assessments and an estimated 44,000 students are currently on wait lists for assessments with identification, placement and review committees or for services.

The Moore decision stands for many propositions, among them being that human rights law requires service providers to make their services accessible to persons with disabilities. Essentially where a barrier is identified, the service provider must provide accommodation to overcome that barrier unless doing so would cause undue hardship. At first glance, this seems like a win for advancing disability rights. However, the concept of “undue hardship” rests upon considerations involving: (1) cost, (2) outside sources of funding, if any, and (3) any health and safety requirements. One quickly begins to see that reasonable accommodation in the context of education for children with disabilities can certainly be skirted because of the costs associated with special education programming.

But perhaps we need to look at the issue using an appropriate critical disability theory perspective. If we approach this disability issue critically, we can see that ensuring that special programs exist will help address the economic roots of disability by supporting students with disabilities so that they may realize their fullest potential to become active, contributing individuals in society.

Too often, however, the government makes funding decisions to special education with shortsighted views on economic efficiency. The immediate cost of implementing these programs is seen to be reason enough to cut funding or under-fund. What this narrow application of costs does not take into account are the larger implications of insufficiently funding these programs. For example, it was reported recently that the failure to adequately address learning disabilities of children because of education costs destines those children to underperform throughout school. Further, people with learning disabilities are highly over-represented in the criminal justice system, representing 5-10% of the general population, but 25 per cent of the prison population. This outcome is perhaps avoidable by properly educating individuals with disabilities so that wherever possible they may become contributing members of society.

Walking away from a narrow application of economic efficiency and looking at costs through a broader theoretical perspective might help maximize everyone’s potential. Doing so can bring about a more efficient wealth-driven society by properly educating and developing all children — with or without disability.