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.

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

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; […]

  1. 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

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.

Ontario’s Community Treatment Order Regime: A Look at its Potential Adverse Consequences

By Alicia Maiuri, J.D. 2015, University of Ottawa Faculty of Law

While the protection of the public safety is a legitimate and often cited reason to enact or amend legislation, concern should also be had to the potential adverse impacts that touting a public safety agenda to support the introduction of a CTO regime could have on persons with severe mental disorders.

Elizabeth Witmer, Ontario’s former Minister of Health, introduced Bill 68, An Act in Memory of Brian Smith on April 25, 2000. Bill 68 received overwhelming support by members of the Legislative Assembly, passing with a vote of 82 to 10 within less than two months after its first reading. The legislation, which came into force on December 1, 2000, amended Ontario’s Mental Health Act (“MHA”).

As a part of the amendments to the province’s MHA, physicians could now issue community treatment orders (“CTOs”) to persons with severe mental disorders if certain criteria were satisfied. The purpose of the amendment, at least as described in the MHA, is to provide outpatient treatment to “revolving door” patients — those persons who are institutionalized, stabilized, and respond well to treatment only to relapse and become re-institutionalized — by providing them with community-based treatment or care and supervision that is less restrictive than being in a psychiatric facility.

Physicians’ decisions to issue CTOs are reviewable by the province’s Capacity and Consent Board, on request of persons subject to the order or their substitute decision-makers (“SDM”). A CTO will expire six months after it is issued, unless it has been renewed or terminated earlier at the request of the person subject to the order or his/her SDM.

Impetus behind the Amendments

Among others, the deaths of Brian Smith and Charlene Minkowski were widely publicized  and, arguably, catalysts behind the swift amendments to the MHA and the introduction of CTOs under Bill 68. Jeffery Arenburg, a man suffering from paranoid schizophrenia, killed Smith, an Ottawa sportscaster. Herbert Cheong, a man who had also been diagnosed with schizophrenia, pushed Minkowski to her death as she awaited her subway train.

A reading of Bill 68’s legislative debates demonstrates that concerns for public safety in the wake of these events informed the provincial legislature’s decision to amend the MHA to introduce a CTO regime. Member of Provincial Parliament, Mr. Doug Galt, said the purpose of Bill 68 was to prevent another incident similar to Brian Smith’s from occurring again. He stated, “Just one Brian Smith is one too many to have happened.” (Legislative Debates, page 3433). In a similar vein, the Ontario Psychiatric Association (“OPA”) felt that the amendments to the MHA would protect the public from mentally ill Ontarians and it was partly for this reason that they supported the amendments. (Legislative Debates, page 3430).

CTOs: Potential Adverse Consequences

While the protection of the public safety is a legitimate and often cited reason to enact or amend legislation, concern should also be had to the potential adverse impacts that touting a public safety agenda to support the introduction of a CTO regime could have on persons with severe mental disorders.

Consider, for example, that the risk of homicide committed by persons with mental disorders is low; the risk of homicide by schizophrenics is less than 1 percent. (Thompson and Empowerment Council, page 7).  In fact, persons with mental disorders pose more of a threat to themselves than they do to others; suicide is far more frequent than homicide. (Legislative Debates, page 3475). Data from the Canadian Mental Health Association shows that persons with mental disorders are more susceptible to being a victim of violence themselves than they are perpetrators of violence.

Moreover, the successful implementation of a CTO regime relies, as the name suggests, on the availability of community-based resources. The province, however, introduced its CTO regime despite a total inadequacy of mental health resources. (Legislative Debates, page 3470). This issue was addressed during Bill 68’s legislative debates. The province had already identified a figure of approximately $600 million to meet current needs for community-based mental health services and this figure did not account for the additional resources that would be required to support CTOs. (Legislative Debates, page 3475). Members of Provincial Parliament expressed their concerns that there was no room in the province’s budget to allocate additional funds to support mental health initiatives in the community. (Legislative Debates, page 3471).

Introducing a CTO regime without sufficient community-based mental health resources also concerned patients and patient advocacy groups that CTOs would be used to medicate patients. Such fears were premised on the fact that limited beds in hospital psychiatric wards and the closure of psychiatric institutions, absent community-based resources, could result in a physician’s exclusive reliance on the only available outpatient treatment: medication.

The potential for increased reliance on medication could also compromise the patient-physician relationship among patients who are reluctant to rely on medication as their primary form of treatment. In fact, R.A. Malatest & Associates Ltd.’s 2005 review of the effectiveness of Ontario’s CTO regime found that patients who were forcibly medicated under a CTO were reluctant to seek help in the event of relapse once their CTO had been terminated.

The Saint Michael’s Hospital of Ottawa and the Ottawa’s Psychiatric Survivor Group feared that CTOs would also compromise the patient-physician relationship by making it coercive. (Legislative Debates, page 3473). The Psychiatric Survivor Group said CTOs could compromise the trust that has been established between mentally ill patients and their physicians. (Legislative Debates, page 3473). A survey of 85 mental health professionals and 104 individuals with schizophrenia spectrum conditions conducted by Marvin Swartz, Jeffrey Swanson, and Michael Hannon found that 36 percent of participants avoided treatment out of fear of being subject to coerced treatment. P.J. Fischer and W.R. Breakey’s study showed similar results, finding that involuntary treatment of any kind resulted in persons with mental disorders choosing homelessness rather than institutionalization, in part to avoid psychotropic medication.

 Recommendations: Room for Reform

Guaranteeing a basic set of services could ensure that mentally ill individuals, regardless of where they reside in Ontario, will receive an equal level of care. This could help to successfully reintegrate severely mentally ill persons as they make the transition from institutionalized care into the community and decrease the likelihood of medication, on its own, as the principal form of treatment. Perhaps a minimum list of community supports services could have been written into the legislation.

Moreover, in an attempt to eliminate the perceived coerciveness of CTOs the legislation could be amended so that CTOs are no longer referred to as treatment “orders” but rather, as treatment “agreements.” In fact, Members of Provincial Parliament alluded to this amendment during Bill 68’s legislative debates. (Legislative Debates, page 3480). Arguably, simply changing the name could help to restore the patient-physician relationship by re-building the trust that was compromised by the coercive nature of CTOs. Viewing a CTO as an agreement among patients and their physicians would reinforce the notion that this type of treatment is a joint effort by patients and their physicians.

Suspects With Disabilities: ADA Title II, Arrests, and Reasonable Accommodations

By Keith Hiatt, PhD Candidate, Berkeley Law

On Thursday, January 22, 2015, at approximately 6:30 PM, a seventeen-year-old woman walked into a police station in Longview, Texas. By 7:00 PM, she was dead, shot multiple times by police officers. The young woman had been diagnosed with bipolar disorder. We don’t know why she walked into the police station, or why she asked to speak to an officer. We don’t know why she told them she had a gun, when in reality she did not. We don’t know why she struggled with the officers, but we know that three officers physically subdued her. We don’t know why she fought with them and eventually pulled a knife, but we know that they reacted, almost instantly, by shooting her multiple times. We don’t know why. But we know that this is a scenario that plays itself out over and over. Continue reading “Suspects With Disabilities: ADA Title II, Arrests, and Reasonable Accommodations”

Symposium: Exploring Law, Disability and the Challenge of Equality in Canada and the United States

Symposium: Exploring Law, Disability and the Challenge of Equality in Canada and the United States

Click here to Watch Symposium Video

Click here to Read Symposium Papers

Berkeley Law, December 5, 2014

Summary by Chandima Karunanayaka (JD/MSW Candidate 2016)
& Stephanie Skinner (MSW/JD Candidate 2015)
Disability Legal Studies Fellows 2014-2015, Windsor Law, Canada


The much-anticipated conference, Exploring Law, Disability and the Challenge of Equality in Canada and the United States took place on December 5, 2014. Academics, advocates and students flew in from across Canada and the United States to share ideas and develop networks. Yet, most importantly, the conference was an opportunity for likeminded individuals to discuss, develop and challenge one another’s ideas on what is needed to achieve equality for people with disabilities in society. In her opening remarks, Prof. Laverne Jacobs identified the goal of the conference as exploring disability legal studies or the “disability angles” of the law. Over the course of the day, it seems that no stone was left unturned: discussion took place regarding international human rights law, social & economic rights, and processes & procedures for achieving equality. Lastly, we heard from current practitioners in the legal disability rights field. Overall, the conference was a great success and reinvigorated attendees to continue the battle they had begun. Below is a summary of the panels but note that more information about the conference along with a video may be obtained on the conference website: Continue reading “Symposium: Exploring Law, Disability and the Challenge of Equality in Canada and the United States”

Stott v Thomas Cook Tour Operators: Human Rights Left without a Remedy?

By Laverne Jacobs (Associate Professor, Windsor Law)
and Chandima Karunanayaka (JD/MSW Candidate ’16)

Mr. Stott was a passenger with a mobility limitation. He was a permanent wheelchair user and paralyzed from the shoulders down. In 2008, he and his wife booked a return flight through Thomas Cook Tour Operators.  Due to his physical condition, Mr. Stott requested at the time of booking that his wife be seated next to him as she assisted with his personal care during flights. The airline reassured him that this request would be honoured. The outbound flight passed without incident. However, the request was not complied with on the return flight. At check-in, when Mr. Stott was told that his wife would not be seated next to him, the crew informed him that the matter would be resolved at the gate. But, at the gate, Mr. Stott was told that passengers had already boarded the aircraft and no other arrangements could be made. The airline made no attempt to ask nearby passengers to relocate to accommodate Mr. Stott. Continue reading “Stott v Thomas Cook Tour Operators: Human Rights Left without a Remedy?”