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The stakes are high: Day 2 of the wrongful institutionalization appeal

Kevin Kindred, defending the province. Screenshot.

KJIPUKTUK (Halifax) – Legal arguments in the appeal of a Nova Scotia human rights board decision about the institutionalization of people with physical or intellectual disabilities continued today.

In Nova Scotia some 1000 people with disabilities live in institutionalized settings, many against their will. Others are waiting for accommodation in small option homes where they are fully supported while living in their own community. 

There’s a lot of human suffering hidden behind this simple statement. 

In general, we are dealing here with people whose agency and autonomy is severely constrained, who live far away from their own community and loved ones, who can’t go for a walk when and where they wish, or sleep in and have a late breakfast, all things we take for granted.

As an example of the cruelty of the current system that sticks with me, at the inquiry we heard how many residents of the East Coast Forensic Institute remain locked up even though they are considered ready to live in the community, simply because Community Services doesn’t offer enough supported living opportunities. We heard how some residents remain institutionalized without any medical justification for as long as three years.

See also: Many stuck at East Coast Forensic Hospital for years because of lack of housing supports, human rights enquiry hears

We’re also also dealing with the suffering of parents and others, who worry that their loved ones will not have the kind of housing support allowing them to thrive after they themselves are no longer able to provide care. 

In 2019 a human rights board of enquiry that looked into the situation determined that the three individuals central to the case were discriminated against. However, that doesn’t imply that the discrimination is rooted in systemic causes, the board’s Chair, Walter Thompson, stated. 

In awarding compensation the Chair, rather than considering the length of their suffering, took the ableist position that the compensation award should reflect their limited needs, given their intellectual disabilities.

Both the denial of the systemic roots of the discrimination and the size of the award were appealed by the three individuals (or their estates) and the Disability Rights Coalition, an association of groups such as People First Nova Scotia and the Nova Scotia Association for Community Living, as well as individuals.        

Is the discrimination systemic?

Yesterday we heard Vince Calderhead and Claire McNeil argue on behalf of three individuals who were institutionalized against their will, and the Disability Rights Coalition. 

Their core argument is that people with disabilities are discriminated against because, unlike able-bodied people, they do not receive housing support from the province as of right, when and where they need it, but rather places them in large institutions, far from their community, and at a timing determined by the government. 

See also: From human rights Board of Inquiry to Nova Scotia Court of Appeal, case against wrongful institutionalization continues

This morning we heard from two lawyers, Joelle Pastora Salla and  Miranda Grayson, representing the three intervenors, the Council of Canadians with Disabilities, the Canadian Association for Community Living, and People First Canada.

Understandably, their focus was the board’s refusal to consider the systemic nature of the discrimination experienced by the three complainants.

In finding that each person must be assessed individually, the board created new barriers and perpetuated the historical disadvantage of persons with disabilities, Pastora Salla said. 

“This would mean that a complaint with three complainants that has taken six years to get to this point, would require a much longer hearing with evidence from hundreds of persons with disabilities, and would require each person affected to file their own individual complaint,” she said.

“This approach to systemic discrimination is simply unworkable. It is not only wrong in law, for it renders meaningless the intent and utility of systemic discrimination analysis. It will be particularly onerous for persons with disabilities who are at greater risk of living in poverty, and who face entrenched patterns of discrimination on a daily basis,” said Pastora Salla.

Is it even discrimination?

Kevin Kindred, one of two lawyers for the province took a very different tack. Sure, it’s far from ideal to be institutionalized, he argued, but that doesn’t mean discrimination occurred. 

Discrimination of one group can only be shown to exist in comparison with another group. However, comparing programs for people with disabilities with those for able-bodied people is like comparing apples and oranges. They meet different needs for different types of people, he said.

That people with disabilities face wait lists, and have little to no choice in terms of where they live is not because of discrimination, but because of the nature of the different programs. The DIsability Support Program offered by Community Services is discretionary, meaning that funding is limited and prioritization of cases is required, unlike, say, the Employment Support and Income Assistance program that gets funded based on need, Kindred argued. 

And now we wait

“You gave us a lot to think about, a decision will come, but we can’t promise it will come quickly,” one of the justices remarked.

Not being a lawyer, I get pretty lost listening to the arguments, the references to case law and legal fine points. I have no idea what these three justices will decide. 

The stakes are high.

See also: From human rights Board of Inquiry to Nova Scotia Court of Appeal, case against wrongful institutionalization continues

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  1. Discrimination against people with disabilities is rampant in Nova Scotia. Parents have supported their adult children at home under the most difficult of circumstances with minimal support from Community Services. Many families have risen to the challenge of providing their adult children with the best lives possible for as long as they are physically and emotionally able. What follows is degrading and punitive. Families are told they can continue to be involved in decisions around health, safety and life in inclusive communities. However once a person is taken into care, they are outnumbered by the beaurocrats who sit at the table and their opinions are rarely acted on. Individuals who have been living in and working in their own communities no longer have access to appropriate day programs or work placements or the opportunity to explore entrepreneurship. Life in care does not respect the need for individuals to have fulfilling lives which includes being allowed to work, participate in recreation in their own community not a remote care facility. Individuals with physical disabilities are denied the exercises and physical supports required for them to bear weight and not lose bone density and maintain good general health.
    Individuals with significant disabilities are denied the additional supports that fall outside of a group environment mentality. Too many decisions are made based not on what the individual would like but on what is expedient for staff. There is little room for individuals to grow and continue learning. Too many decisions are made based on risk management of serving someone with a disability. I call that discrimination because someone has a disability.

  2. Kendall Worth here!

    After my personal Experiences of once upon a time taking my case to Surprime Court, and of cource where I was fighting the lost of a special diet, means I was fighting a whole different. Still, looking back on that Experience, Kevin Kindred’s comments does not surprise me.
    As I read through his comments the arguments he made comparing the The Disability Support Program to the the Employment Support and Income Assistance program are I find Very Similar to the arguments made by the lawyers then, meaning when my case happened.

    When you look at the Kevin Kindred’s comments, plus the comments made the Lawyers representing Community Services when I took my case to Surprime court, comments like that goes to show that they the system within itself need to change.

    It is my hopes that the Judge in this current court case will see that what Beth MacLean, Sheila Livingstone and Joseph Delaney is going through is a huge problem that is violating thier human rights especially where these inadvisables have already been medically Deemed “Ready to live in their community” and hopefully the judge will issue a court order for them to be accommodated to presue their right to live in the community. Kevin Kindred Brings up the question “is this really Discrimination? I say “Of cource this is Discrimination toward Beth MacLean, Sheila Livingstone and Joseph Delaney”

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