fraser advocacy

Camping Out as a Protest

2011-11-18T22:17:00.003-05:00

I don't know why it took my old brain to remember that I once camped out as a protest. So I went to the basement looking for proof and found these two beauties.

It was 1988. The City of Hamilton passed a bylaw that no more than 5 or 6 (again can't remember) unrelated people could live together. I was Student Union President. We protested by camping out over night. We had tents although the pictures don't show it (they just show the law chairs). Early that day or the next I was interviewed on Metro Morning on Jarvis Street with Joe Cote. Yes, that's how old I am, before the Mothership, before Andy Barrie, well, before Matt Galloway too I suppose.

We would have said that the camping was the protest.

Save Riverdale Farm

2011-07-18T21:42:00.002-04:00

One of the City of Toronto's consultants has suggested that the City could save money is eliminating Riverdale Farm. My children 4, 4, & 5 just spent a great week at camp there and got to meet some of the animals. I told them today about the City's plans. They asked why? I told them that the City thinks it doesn't have enough money. The eldest suggested the City could make more money. They are thinking about taking it to City Hall so I inquired of City Councillor Pam McConnell's office of how to stop this. Here is the prompt response I got.

Hi Suzan,

Thank you for your message and your support for the continued operation of Riverdale Farm.

The best way to help at this time is to share your views with the Mayor and Council. The consultant's report will be considered at the Parks and Environment Committee on Thursday, July 21 at 9:30 AM. Any individual is free to make an in-person or written deputation.

To register for a deputation, e-mail the Parks and Environment Committee at pec@toronto.ca or call 416-397-7796.

Written deputations should be sent to the same address so they become part of the public record.

To be clear, this is one of the laundry list of "opportunities" to reduce costs. It will be up to the Committee to decide if they wish to recommend exploring this opportunity. It is up to all of us to ensure that eliminating the operations of the Riverdale Farm is not one of their recommendations.

Local residents have also created an on-line petition which will be presented to the Committee and Council. To view or sign the petition, go to: http://www.petitiononlinecanada.com/petition/residents-against-closing-riverdale-farm/223.

Another way to support the Farm is to become a member of the Friends of Riverdale Farm – a community organization dedicating to preserving and enhancing the Farm experience. More information can be found at: www.friendsofriverdalefarm.com.

Thanks again for your support!

Warm regards,

Sean

Sean McIntyre

Constituency Assistant to

Councillor Pam McConnell

Ward 28 - Toronto Centre - Rosedale

(416) 392-0207

So there you go. The kids can't go Thursday and I am in court but we'll work on our written deputations. What can you do?

Leave Denied - Quenneville & Stirling

2011-03-03T10:41:00.003-05:00

Today the Supreme Court of Canada denied leave two cases that were heard together at the Court of Appeal for Ontario which dismissed the appeal. The cases raised important questions about the rights of people advancing on consent a defence of not criminally responsible where they admit a portion of the offence. Here is how the case was summarized by the court:

Charter of Rights and Freedoms – Criminal Law – Fundamental Justice – Right to equality – Discrimination based on mental or physical disability – Whether s. 7 of the Charter mandates an inquiry as to voluntariness and awareness of consequences of those accused who seek a verdict of not criminally responsible on account of mental disorder – Whether a failure of the Criminal Code to mandate an inquiry of those accused seeking a verdict of not criminally responsible on account of mental disorder, akin to that provided for by s. 606 (1.1) in relation to guilty pleas, violates s. 15(1) of the Charter – Whether the Court of Appeal failed to recognize a principle of fundamental justice that criminally responsible individuals should not be found not criminally responsible on account of mental disorder.
In separate trial proceedings, findings of not criminally responsible on account of mental disorder were entered against each applicant. Each applicant appealed from the findings. As is always the case, no reasons were provided. Hopefully more on this case when I have a chance.

Minister Speaks on First Available Bed Issues and Practice of Charging Patients

2011-02-22T15:00:00.002-05:00

Today, the efforts of the Advocacy Centre for the Elderly paid off with a clear statement in the Legislature from the Minister of Health and Long Term Care on the practice of some hospitals to threaten to charge patients with exorbitant charges if they reviewed to take the first available bed in ANY long term care home.

Health Minister Deb Matthews told the Legislature that:

it is completely unacceptable that anyone be charged more than the co-pay rate—that’s $53.23—if they are in a hospital waiting for long-term care. It is completely unacceptable.

Judith Wahl, Executive Director of the Advocacy Centre for the Elderly, commented on the significance of the Minister's comments:

This should end the practice of hospitals threatening patients waiting in hospital for admission to long term care to be charged more than the co-pay as set out in the Health Insurance Act which is a maximum of $53.23. There is also a rate reduction available for people that do not have the income to make this payment. In the past, many hospitals have threatened people with charges ranging everywhere from $350 to over $1800 per day if they refused to take the first available bed in ANY long term care home that came available or if they refused to select long term care homes with short waiting lists even if the patient / their [substitute decision maker] did not believe that a particular home with a short waiting list was an appropriate choice or met their long term needs.

The Advocacy Centre for the Elderly has been advocating for clients, and the seniors community, on this issue for the last 12 years. There are materials on the ACE website that explain the law on this issue which includes

the requirement for consent for admission to long term care,
that consent must be voluntary and cannot be coerced by the hospital with threats of a high per diem at the hospital if the patient refuses to take the first available bed in any long term care home or a retirement home not of their choice,
the max rates that can be charged in hospital as set out in the Health Insurance Act

We do encourage people that no longer need acute care to actively look for and consider all possible options for long term care and for care in their own homes, rather than in hospital, in an effort to get out of hospital into other accommodation that meets their ongoing needs. However patients should not be threatened with inappropriate high per diems in an effort to have them go to places that are not appropriate to their needs.

We commend the Minister of Health and Long Term Care for making this statement in the Legislature today. We look forward to the changes in hospital policies to reflect the appropriate charges.

Here is the Hansard Excerpt:

Ms. Andrea Horwath: The question is for the Premier. The McGuinty government’s broken promise to redevelop Windsor’s Grace Hospital site into a long-term-care home has forced the LHIN to declare a hospital bed shortage crisis in that ...

L083-1100-22 follows

(Ms. Andrea Horwath)

... the Premier. The McGuinty government’s broken promise to redevelop Windsor’s Grace hospital site into a long-term-care home has forced the LHIN to declare a hospital bed shortage crisis in that community. Now seniors are threatened with $600-a-day hospital bills if they refuse the first open bed in any nursing home. Why are seniors being punished for this government’s health care failures?

1100

Hon. Deborah Matthews: Thank you for the question. I want to start by saying that it is completely unacceptable that anyone be charged more than the co-pay rate—that’s $53.23—if they are in a hospital waiting for long-term care. It is completely unacceptable.

I want you to know that my ministry and my officials are working with the LHIN, with the hospitals, to ensure that they understand the proper application of this policy and that other hospitals, in fact, across the province do understand that it is completely unacceptable to charge anything more than $53.23 per day.

I do want to talk about long-term care in the Windsor area. We know that long-term care is very important. We are making investments. There is a new long-term care that is opening as we speak. There are now over 100 residents and more coming every day. There is another long-term—

The Speaker (Hon. Steve Peters): Thank you. Supplementary?

Ms. Andrea Horwath: Families want to be sure that their loved ones have the best possible care in the province. But not only are the services lacking; these families are being punished. In Windsor it’s officially a crisis but the story is playing out across the province of Ontario. An elderly patient in Toronto is being threatened with daily fees of $1,800 to get out of the hospital.

Families are desperately trying to access the care they need but they’re finding a system in complete shambles. Instead of helping families, the government slaps them with exorbitant fees. Why are families being punished for this government’s failures?

Hon. Deborah Matthews: Let me repeat that it is completely inappropriate and unacceptable for any individual in this province in a hospital waiting for long-term care to be charged more than $53.23 per day, so I think the member opposite owes it to the people of this province to actually speak the facts in this House.

Having said that, we do acknowledge that there are challenges in our health sector but we are making tremendous progress. We are committed to reducing our ALC rates in our hospitals by building stronger, better community supports. We now have almost 200,000 more people receiving home care supports than when we took office.

We are moving forward. We are making progress. Is it perfect? No. But, boy, is it a whole lot better? Absolutely yes.

Paul Martin Conway

2010-09-23T15:17:00.001-04:00

This is Paul Martin Conway on the steps of the Court of Appeal for Ontario on September 9, 2010. The Court of Appeal dismissed his appeal from a 2007 disposition of the Ontario Review Board. Mr. Conway has been detained in the forensic mental health system for 27 years. He is the subject of the Supreme Court of Canada's decision in R. v. Conway where the court found that tribunals, with rare exceptions, have the jurisdiction to apply the Canadian Charter of Rights and Freedoms when exercising their statutory mandate. This is a rare moment of fresh air and freedom as Mr. Conway lost his community and grounds privileges in the late Fall of 2009. If you look carefully, you'll note he is in handcuffs, since the hospital he is detained in took the position that since he doesn't have off-ward privileges, he can't leave the hospital without handcuffs. Prior to that decision, Mr. Conway had been on the hospital grounds and community with staff approximately 160 times without any concern of violence. At the hearing of the appeal, Mr. Conway was released from the cuffs to make his argument before the Court of Appeal and he was returned to handcuffs upon leaving the courtroom.

Mr. Conway had hoped that the court of appeal would hear his appeal where he asserted that the Ontario Review Board erred in failing to consider his Aboriginal background through the receipt of a Gladue report. The court declined to hear the appeal, finding it moot as the Ontario Review Board has commenced a new hearing rendering the issues in the appeal moot.

Mr. Conway's Board hearing is scheduled to resume December 6, 2010.

Advice to a New Student

2010-08-31T22:48:00.003-04:00

My niece is off to university in a few days, so I asked girlfriends who I went to university with what their could have, should have, would have advice was – what they wished someone had told them. And here is what they said (although I have changed their names to protect them):

Margaret:

You need not throw up in 7 garbage cans to illustrate you've had a good time.

Kraft dinner mixed with fried ground beef is remarkably good.

No one looks good in a toga.

If a new friend asks you home for her family birthday party one week into term, say yes.(ed note, that was me, we've been friends for 25 years this week)

Sioban:

You can meet your best friends there

Generally the men are temporary

Your education is your most important job

Never again will you be as independent without responsibility (except your grades)

Elizabeth:

my two cents for the girls

philosophical: The mind is not a vessel that needs filling, but wood that needs igniting. (Plutarch)

practical: Find some friends who like to study as much as they like to drink beer.

Anne:
Some immediate thoughts that come to mind:
Keep a balance of social activities and studies – particularly in first year when soooo much is new. I found out the hard way (when I got my first year interim grades) that there are many distractions that can easily keep you from studying. A healthy balance is good 
Get involved in rez life & extracurricular things that interest you – you will meet fantastic people – that one is obvious now when I look at how blessed I am to have my best university friends
I wish I had had the confidence to try out for a sports team (basketball in particular) at a more competitive level. I kick myself for not trying out

Jane:

If only we could have maintained the "balance" we had back then....felt like a pretty good balance of work and play in lots of ways - I like what whoever said about lack of responsibility too - that went a long way towards the feeling of balance!!!!

Should have eaten my veggies!!!! I was so sick when I went home in the summer and ate proper food and I think it was because I ate such crap at school.

Would have been lost without my great friends. I love Elizabeth’s beer/study motto. Made it a lot easier to have slightly geeky friends to head to the library with, eh Liz? But then also friends to go out with instead of constant studying...
And, as one of the young'uns in our bunch - it was fantastic to have some older friends - for all-round wisdom, coursework support, just to get your head above the clouds and to introduce you to some options all the first years are unlikely to know about, give you perspective. I think I was very very lucky - with all of you and with Fart. The opportunities for those relationships may come through res, extracurriculars, whatever.

Not exactly the correct could have/should have/would have - but close enough!

Really - go with your gut - about people and studies. I think of all the people I know who have been unhappy in their jobs, and/or have had to go back and retrain, it is because they didn't follow their passion and did what they thought was "right" or what someone else told them to do, or what they thought would make them more money...Just had a friend quit her job on Monday - at 40 - after realizing she hated it! - she is weeping with happiness....beware of older male graduate students...just go with the gut.

Do I remember she is going to [place that she is going to] or did I make that up? Seems like a happy balanced place on the whole...

Mei Mei:

I would emphasis that education is your most important job - if you do well it opens up lots of opportunities.

Make sure you are interested in what you are learning. This is your chance to take or listen in on different courses and find out what you are passionate about. Never again will you be in a situation with so many resources and people with knowledge about such a wide range of things at your finger tips - take advantage of it!

Don't be afraid to go and talk to your lecturers/tutors ask them questions etc take advantage of their expertise - they can point you in some interesting directions!

Enjoy it!

Me:

Don’t be afraid to ask help to chart a new course if what you are doing isn't working out but stick things out that seem rough …. That is the tricky part.

Try really hard. Not just to get the mark that you can get but to push yourself to see the best that you can be – wherever that ends up.

Figure out the cost of a single hour of class by adding up your tuition and residence and dividing it up over the hours of classes – the cost is so high you won’t miss a single class.

The girlfriends that you make in university will sustain you through life and you’ll learn about new worlds through their learning.

Be a tortoise – slow and steady definitely wins the race.

Try to do something you wouldn’t normally do every week (not dangerous) to challenge yourself.

Exercise, sleep, eat & don’t leave your drink unattended.

Have a great time and call me for help if you need it.

Love
Auntie Sue Sue

Lawyer Brian Iler's Letter to David Miller on Police Activity during G20

2010-06-30T12:15:00.003-04:00

Following the G20 last weekend, Toronto lawyer Brian Iler wrote to David Miller regarding his concerns about police actions. He given me permission to share his letter here:

David, I want to let you know my concerns regarding the police actions last weekend.

While the police have a difficult job to do, there were clearly decisions as to how policing would be handled at the highest level that demand answers: This is not about individual officers’ misdeeds, although there was ample evidence of those.

I heard Chief Blair publicly state that those who were in attendance in the downtown areas on Saturday and Sunday were either naive or curious, and should go home. By implication all others were engaged in criminal activity and at risk of arrest. He wrongly and clearly intentionally - omitted the fourth category of attendees those who were genuinely concerned about the absence of any consideration at the G8 summit of the many issues of real concern - poverty, the environment, social justice, and human rights, and the failure of the police to respect the rights of those who chose to attend to bear witness to those issues.

I attended the march on Saturday. The massive police presence in full riot gear, with tear gas guns at the ready, was intimidating, and clearly intended, in a very peaceful crowd, to dissuade any of us from ever attending a public expression of disgust for our leaders' failures again.

Later, after watching the soccer game, on our way home, at Queen's Park, we watched as the police randomly picked peaceful demonstrators out of the crowd, and then, to our horror, arbitrarily decided to break up the non-violent crowd by forcefully removing everyone in the designated place for free speech.

We now know that most of those arrested were arrested without cause, as they were released after too long in an unacceptable jail environment without charges.

While I was deeply concerned by what I saw, I felt sufficiently intimidated by the arbitrary arrests I saw, and by reports of others, including Steve Paikin's first-hand Twitter account of exceptionally arbitrary and capricious behaviour by the police on The Esplanade Saturday night, that I felt for my security, and did not return on Sunday to express my views. I admire the courage of those, mostly, young people who did attend on Sunday to bear witness to the horrors of Saturday;s police tactics.

I was again disturbed and appalled to watch the unfolding horror of peaceful and lawful demonstrators together with bystanders and people just out walking their dogs, being penned by riot police for hours in intense rain at Queen and Spadina on Sunday night. The courage of CP24 in broadcasting that live was appreciated.

This is not a matter for the police complaints process.

Contrary to Police Services Board rules, many officers that I saw were not wearing their names. Those who chose not to wear their name badges were clearly not wishing to be held responsible for their actions. That’s not the approach to policing that we in Toronto wish to encourage. Lack of identification will be the obvious first line of defence for the police in any complaints filed. Surely supervisors should have been vigilant to ensure that names were worn as required.

The front line officers were for the most part doing what they were told to do, and some were most uncomfortable being placed in that role.

I understand the Toronto Police had command responsibility for forces outside of the security perimeter: Chief Blair therefore bears responsibility for this mess.

In my view, only a public inquiry can ferret out the truth as to how the decisions were made that led to the events of last weekend. That inquiry must include the following:

1. How to ensure that constitutionally guaranteed rights of freedom of expression and assembly are properly respected in difficult circumstances which is, of course, when they matter. The police demonstrated this weekend that they cannot be trusted to make that determination in their view, as so clearly articulated by Chief Blair, chasing after a few hooligans trumps civil liberties every time.

2. How to effectively constrain the abuse of police powers of arrest. The mass arrest of innocent individuals, and their horrendous treatment in custody, suggests that the police intended to impose their own summary punishment on those who dared to publically express their views, as constitutionally guaranteed. Under our law, no one is to be punished until they are found guilty in a court.

3. Consider whether the abuse of powers of arrest for breach of the peace, which was so rampant this weekend, warrants legal constraints on that power whether through amendment to the Criminal Code, or policy imposed by the Police Services Board.

That power is extremely broad, as you will know:

The police have the power to act to prevent a breach of the peace, both while a breach is ongoing and before one has begun. The authority for this power can be found in the Criminal Code and at common law... As the law currently stands, the breach of the peace power allows the police to arrest without warrant at any time as long as they can meet the low standard of showing that there were reasonable grounds to believe that a breach had occurred or that one was imminent. Per Jackie Esmonde “The Policing of Dissent - the Use of the Breach of Police Arrests at Political Demonstrations” in the University of Toronto Journal of Law and Equality [2002] 1 J.L. 246 at para. 70

Since use of that power does not normally result in a charge being laid, as was the case with many of the arrestees, there is little opportunity for the courts to examine the grounds for the initial arrest, leaving the police free to use their powers arbitrarily. Is that power an appropriate power for the police to have in these circumstances?

4. An examination of the tactics adopted by the police here. Particularly the immense show of force, and the use of kettling on peaceful protest, as occurred numerous times, but most disturbingly on Sunday night at Spadina and Queen, when most caught were not even demonstrators, but passers-by. The tactic is controversial: If ever warranted, the police have certainly demonstrated they are incapable of making a decision on its use that is respectful of peaceful demonstrators' rights.

Wikipedia’s article on kettling includes this:

The term "kettle" is a metaphor, likening the containment of violence to the containment of heat and steam within a domestic kettle. It is sometimes described as "corralling," likening the tactic to the enclosure of livestock. Although large groups are difficult to control, this can be done by concentrations of police. The tactic prevents the large group breaking into smaller splinters that have to be individually chased down, thus requiring the policing to break into multiple small battles.[3] Once the kettle has been formed, the cordon is tightened, which may include the use of baton charges to restrict the territory occupied by the protesters. The cordon is then maintained for a number of hours: the ostensible aim is to leave would-be violent pro
testers too tired to do anything but want to go home.[4]

Kettling has been criticized for being an indiscriminate tactic which leads to the detention of law-abiding citizens and innocent bystanders,[5] as well as for denying detainees access to food, water and toilets. In some countries the tactic has led to legal challenges on the grounds of human rights violations.

5. How to constrain the widespread illegal searches of members of the public that were reported last weekend. There were many reports of systematic searches - my own son, who was photographing the events on Sunday, had his backpack searched four separate times by police without lawful justification.

The law is clear - the Ontario Court of Appeal recently wrote, in R. v. A. M., 2006 CanLII 13550, in considering whether the search of a student's backpack in a school was warranted:

[49] The Crown takes the position that A.M.'s expectation of privacy in his backpack was so significantly diminished as to be negligible. With respect, I disagree. I agree with the submission of both counsel for A.M. and the Canadian Civil Liberties Association that a student's backpack should be afforded at least the same degree of respect as an adult’s briefcase.

In R. v. Mohamad, 2004 CanLII 9378 (ON C.A.), (2004) 69 O.R. (3d) 481 at para. 25 this court said:

In the contemporary context, briefcases often house highly confidential personal and business information. They can serve, in a practical sense, as portable offices for their owners? [O]wners of briefcases generally have a reasonable expectation of privacy in the contents of their briefcases.

[50] Counsel for the Canadian Civil Liberties Association made the following submission with respect to a student’s backpack in a school setting such as this:

A student's backpack is in effect a portable bedroom and study rolled into one. It will contain personal items such as journals, photos, letters, personal hygiene items, medication, clothing and school records. Backpacks are often in reality the only way for students to carry and use items that are personal and important to them. These items are shielded from view and access.

There are no contextual factors that diminish students’ legitimate expectation of privacy, dignity, and autonomy in their backpacks. Students' expectation of privacy in their backpacks is objectively reasonable. Backpacks are not searched in the normal course of a school day, nor do students come to school expecting that their backpacks will be searched. The students did not consent to their backpacks being searched on November 7, 2002 and the Principal certainly could not consent on their behalf.

I agree with the above submission as it relates to the circumstances of this case.

[57] To facilitate the search, the entire student population was detained in their classrooms for a period of one and a half to two hours. Although it was the principal who made the announcement to the student body to remain in the classrooms, it is my opinion that a review of the record indicates that he did so to accommodate the police search. There was no credible information to suggest that a search was justified. There were no reasonable grounds to detain the students. As Laskin J.A. said in R. v. Calderon 2004 CanLII 7569 (ON C.A.), (2004), 188 C.C.C. (3d) 481 at para. 69 (Ont. C.A.): "An officer cannot exercise the power to detain on a hunch, even a hunch borne of intuition gained by experience."

[58] The Supreme Court of Canada has held that there must be a clear nexus between the individual to be detained and a recent or on-going criminal offence. This position was articulated by Iacobucci J. for the majority of the court in R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 at para. 34:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[59] Quite apart from the detention of the entire student body, of more significance is the unauthorized warrantless random search itself.

[60] In my view, the Crown has failed to rebut the presumption that the search was unreasonable. Even if the presumption of unreasonableness did not apply, it is my opinion that there were no grounds upon which to justify a random search of the kind that was conducted in this case.

6. There are too many unanswered questions on why the "black bloc" vandals who had been vigorously identified and harassed by police in the days prior to last weekend, were allowed to freely do their mischief, with not a police officer in sight or, as was the case with the police cars, while police just stood by, or had abandoned them.

Just what was the police role in that?

Did they consciously decide to allow the vandals free rein? That seems the most plausible explanation. Why was that?

There is a dishonourable history of police agents provocateurs in Canada. Two examples:

At the Security and Prosperity Partnership meeting protests at Montebello Quebec on August 20, 2007, a Quebec union leader caught and outed three masked undercover Quebec Provincial Police operatives dressed as "black bloc" protestors about to start a riot by throwing rocks at the security police. See the following videos documenting this event.http://www.youtube.com/watch?v=St1-WTc1kow; http://www.youtube.com/watch?v=DCRsj06wT64&NR=1; http://www.flickr.com/photos/emiliep/1206638928/

The Quebec Provincial Police later admitted this was in fact the case: see "Quebec police admit they went undercover at Montebello protest" at http://www.cbc.ca/canada/story/2007/08/23/police-montebello.html

The McDonald Royal Commission, established on 6 July 1977, examined a number of allegations made against the RCMP, finding that "The RCMP Security Service embarked on an extensive campaign of intelligence-gathering, infiltration, harassment and disruption in Quebec and throughout Canada. In many circumstances, the Service committed clearly illegal acts. Quite aside from being illegal, these operations showed a lack of discrimination between true threats and legitimate dissent." Excerpted from The Canadian Security Intelligence Service, Research Paper prepared by the Library of Parliament: http://www2.parl.gc.ca/content/lop/researchpublications/8427-e.htm#B.%20Abuses

The curious nature of the police conduct in relation to the vandalism, and that history, suggests an inquiry into whether there was similar misconduct here.

David, you are in a particularly strong position to take leadership on this issue by establishing that independent inquiry. That could be initiated and carried out by the Police Services Board, if a senior level of government will not do so. I urge that you seize the opportunity. Our liberties, always fragile, are at such serious risk if these abuses are not addressed effectively.

Brian Iler
ILER CAMPBELL LLP
BARRISTERS AND SOLICITORS
www.ilercampbell.com

Mental Health Legal Committee Boycott

2009-11-05T23:04:00.002-05:00

As previously posted, on October 29, 2009, Marshall Swadron, Chair of the Mental Health Legal Committee, wrote to Bob Ward regarding a partial withdrawal of services by the members of MHLC. Here is the text of the letter.

Dear Mr. Ward:

Mental Health Legal Committee Boycott

This letter is further to my October 14, 2009 letter to Brent McCurdy of the Attorney General’s Ministry, which was copied to you. In that letter I introduced the Mental Health Legal Committee (MHLC) and expressed our interest in participating in the five Legal Aid transformation groups established by the Attorney General.

The MHLC comprises approximately 60 lawyers and community legal workers in Ontario and was formed in 1997 to promote and protect the rights of psychiatric consumer/survivors. We have, among other things, assisted Legal Aid Ontario in establishing mental health panel standards, made submissions respecting legislation and acted as interveners in a number of Supreme Court of Canada appeals affecting our client group.

Our members regularly represent vulnerable clients before the Ontario Review Board and the Consent and Capacity Board and appeals from these proceedings, which are to the Court of Appeal and the Superior Court of Justice respectively. We are also active representing consumer/survivors in inquests and other administrative, civil, criminal and constitutional contexts. The vast majority of our clients depend on legal aid to access the justice system.

We share many of the concerns identified by the Criminal Lawyers Association (CLA) and the Alliance for a Sustainable Legal Aid (ASLA) respecting current Legal Aid funding levels, including the hourly rates paid to lawyers by Legal Aid. Our clients and our members face many unique hurdles, however, which also must be addressed. Foremost among our concerns is the extent to which we are expected to subsidize the costs of our clients’ representation.

Please consider the example of a lawyer with twenty years of experience asked to represent a non-English speaking client who has applied to the Consent and Capacity Board to challenge his detention under the Mental Health Act. Rights advisers generally take legal aid applications at the same time as they take application to the Board. Hearings are mandated by statute to take place within seven days of the Board’s receipt of the application. The time frame for issuance of a legal aid certificate generally coincides roughly with the date of the hearing.

To meet with the client, which the lawyer will do, on average, twice prior to the hearing, the lawyer must arrange for an interpreter. In respect of the two-hour meeting, Legal Aid will pay only for the lawyer’s actual time spent with the client. The further hour spent by the lawyer traveling 30 kilometres to and from the hospital will not be paid. Nor will Legal Aid pay the parking fee of $16.00 charged by the hospital or for the lawyer’s mileage ($24.00 for 60 km). The lawyer will be charged at least $50.00 per hour for the interpreter’s services, plus mileage, for a total of $124.00. Of this disbursement, Legal Aid will (subject to special disbursement authorization which cannot even be sought before a certificate is issued) pay $50.60.

Based on the above, the lawyer will be paid $193.90 for the two-hour meeting but will be responsible for paying $113.40 in unrecoverable disbursements and will have incurred one hour of unrecoverable travel time. The net hourly rate paid to the lawyer for the client meeting (exclusive of law practice overhead) will be $26.83, or just over half the rate paid to the interpreter. Similar obstacles are faced in cases where the retainer of an expert is appropriate. In appeals, constitutional challenges and inquests, the low hourly rates are compounded by unrealistic expectations in terms of the hours permitted by the tariff or authorized by special legal aid committees.

Our clients regularly face extreme deprivations of their liberty. In treatment capacity cases they risk being forced to accept powerful and potentially lethal medications against their will. Our lawyer members have struggled over the years to maintain a professional standard of service with limited resources. As legal aid funding levels have eroded, the MHLC has seen attrition of our colleagues to better paying work representing hospitals and to other practice areas. Some have left the practice of law altogether. Few new lawyers join our ranks. Those who remain are overburdened and discouraged.

The status quo is unacceptable. The three, 5% hourly rate increases paid by Legal Aid in the past 22 years have only seen us fall further behind. At the same time, the government continues to increase funding directly and indirectly to all the participants in the mental health justice system except for those who represent the most marginalized. The Attorney General’s most recent legal aid funding announcement demonstrates a failure to grasp the extent of the need for comparable funding within an adversarial system.

I understand from Mr. McCurdy that the five Legal Aid transformation groups have been struck and have started to meet and that participation from the MHLC or any other group representing the interests of our clients has not been requested. Without action on our part, we believe that the most vulnerable among us are at risk of being marginalized even further.

Effective December 15, 2009, the MHLC will ask its members not to accept retainers based on legal aid certificates to provide opinions or conduct appeals from decisions of the Consent and Capacity Board upholding treatment incapacity findings where treatment has not begun. MHLC members will also decline court appointments as counsel or as amicus curiae in appeals from decisions of the Consent and Capacity Board unless paid at reasonable rates.

We do not take our decision in this matter lightly. A vibrant, independent, properly-funded mental health bar is essential to our democracy. Our sincere hope is that the Attorney General will take meaningful steps to address the funding issues immediately so that our action will become unnecessary.

Yours very truly,

Marshall A. Swadron
Chair
Mental Health Legal Committee

c.c.: The Honourable Chris Bentley
Attorney General of Ontario

c.c.: John McCamus
Chair, Legal Aid Ontario

c.c.: The Honourable Justice Edward Ormston
Chair, Consent and Capacity Board

c.c.: The Honourable Chief Justice Warren Winkler
Court of Appeal for Ontario

c.c.: The Honourable Chief Justice Heather Forster Smith
Superior Court of Justice

c.c.: The Honourable Justice David M. Brown
Superior Court of Justice

c.c.: The Honourable Justice Sidney B. Linden
Special Advisor, Legal Aid Transformation

c.c.: Ryan Fritsch
Legal Counsel, Psychiatric Patient Advocate Office

c.c.: Wayne Van Der Meide
Protocol Cases Unit, Legal Aid Ontario

c.c.: Brent McCurdy
Senior Policy Advisor, Ministry of the Attorney General

c.c.: Frank Addario
President, Criminal Lawyers Association

c.c. Raoul Boulakia
Chair, Alliance for Sustainable Legal Aid

Mental Health Lawyers Join Legal Aid Boycott

2009-11-04T23:39:00.004-05:00

Mental health lawyers in Ontario have joined the boycott of Legal Aid Ontario. In accordance with the terms of the boycott, as of December 15, 2009, I will no longer be accepting appointments as amicus curiae to the Court of Appeal for Ontario on appeal from the Ontario Review Board. I also, as of December 15, 2009 and as a member of the Mental Health Legal Committee, will no longer accept certificates of opinion to conduct appeals from decisions of the Consent and Capacity Board. It is with great reluctance that I take this step together with my colleagues in the mental health bar. As noted by Marshall Swadron, Chair of the Mental Health Legal Committee in his letter to Bob Ward, CEO and president of LAO:

Our lawyer members have struggled over the years to maintain a professional standard of service with limited resources. As legal aid funding has eroded, the MHLC has seen the attrition of our collegues to better paying work representing hospitals and to other practice areas. Some have left the practice of law altogether. Few new lawyers join our ranks. Those who remain are overburdened and discouraged.

For me, the playing field is so unbalanced that my continued work in an unfair system brings legitimacy to a system that does not deserve it. Despite that, I will continue to do some legal aid work in order to serve this vulnerable community and support the boycott in its limited fashion to hope to effect meaningful change in a system that is broken.

Paul Martin Conway v. Her Majesty the Queen in the SCC

2009-10-26T22:43:00.003-04:00

On October 22, 2009, Paul Martin Conway appeared before the Supreme Court of Canada. Mr Conway has been detained in custody for over 26 years in the forensic mental health system. He seeks through his appeal direct access to the Canadian Charter of Rights and Freedoms which is presently denied to him. In short, this case is about whether the Ontario Review Board is a court of competent jurisdiction so as to grant a remedy under section 24(1) of the Charter. I was counsel at the hearing at first instance and had the pleasure of accompanying him to court last week to hear the case argued.

Watch it all unfold.

R. v. Lamanna

2009-08-17T15:33:00.002-04:00

The Court of Appeal released R. v. Lamanna last week. The case, which I argued as amicus curaie, articulates in very practical terms what is expected of a review board when deciding between a detention order and a conditional discharge and how that process is to be evidenced in the reasons for decisions.

Stop the Gun

2009-05-13T21:10:00.008-04:00

In the past three weeks, we've lost Jarvis St. Remy, 18, Daniel Lewis, 19, Omar Waite, 29 and Adrian Johnston, 14 who was shot and left dead on the street wearing his highschool sweatshirt.

Response: "Patients' rights frustrate families" - Globe & Mail

2009-03-12T23:03:00.002-04:00

March 12, 2009

BY EMAIL

The Editor

Globe and Mail

Dear Editor:

How could Andre Picard contribute to the mythology around mental health law? I have practiced mental health law for 14 years in Ontario representing consumers and survivors. It is wrong to say that the Charter and the Mental Health Act interfere with treatment. People are found incapable with respect to treatment every day. The success rate on appeal is 10% such that the doctors view of capacity is upheld 90% of the time. The law prohibits the tribunal that hears the appeals from applying the Charter. So while the laws look great on paper, in practice it doesn’t meaningfully safeguard the rights of those detained in psychiatric facilities.

Twice in one week, in two different hospitals, I saw nurses deliver a needle accompanied by security guards in uniform. This is routine. One client almost died as a result of the medication he was forced to take. Others developed diabetes or were medicated so that they could not function. In spite of these risks, many clients chose to take treatment.

If we want people to engage in treatment, let’s respect the liberty of people with mental health problems and change the way that we deliver care. Let’s start with finding a better way to treat, rather than look for a better way to force it on people.

Yours very truly,

Suzan E. Fraser

Bill 115 Hearings March 18, 2009

2009-03-03T09:52:00.002-05:00

The Standing Committee on Social Policy and Justice will hold hearings on March 18, 2009 in respect of Bill 115 which is an Act to amend the Coroners Act. Interested parties should notify the committee clerk by March 10, 2009 if they wish to make an oral submission. Written submissions will be received up until 5:00 p.m. on March 18, 2009.

To Prorogue or not to prorogue

2008-12-04T23:05:00.002-05:00

This week I learned that normally Parliament recesses in accordance with standing orders. Proroguing a Parliament means you cut Parliament short and you need permission to do this. Permission is normally granted on the advice of the Prime Minister. The GG would be able to decline the advice of the Prime Minister if she felt it was a ruse intended to subvert the will of Parliament. That's what I learned. You can hear from the experts:

Was the Governor General’s Decision to Prorogue Parliament Constitutional? Canada’s Leading Scholars Weigh in on this Historic Ruling

After meeting with Prime Minister Stephen Harper, Governor General Michaëlle Jean has agreed to suspend Parliament until the New Year, averting a confidence motion by the Bloc Quebecois-backed Liberal-NDP coalition. With all the options available to the Governor General was this the right decision, and more important, constitutional?

Hosted by the David Asper Centre for Constitutional Rights at University of Toronto Faculty of Law and introduced by Dean Mayo Moran, Canada’s leading constitutional scholars will address these and other questions as they debate and weigh in on the issues around this historic decision, whether it contravenes constitutional conventions, and what this might mean for our economy.

Moderated by Cheryl Milne, Executive Director of the Faculty of Law’s David Asper Centre for Constitutional Rights. Introductory remarks from Faculty of Law Dean Mayo Moran. Members of the government and coalition parties will also be invited to speak at the event.

Confirmed Panelists Include:

Lorne Sossin is a Professor at the U of T’s Faculty of Law. His teaching interests span administrative law, public administration, professional regulation, civil litigation, ethics and professionalism, and legal process. He was the recipient of the Mewett Teaching Award in 2003 and 2004.

Lorraine Weinrib is a professor with the Faculty of Law and the Department of Political Science. She has worked in the Crown Law Office - Civil, Ministry of the Attorney General (Ontario), holding the position of Deputy Director of Constitutional Law and Policy. Her work included legal advice and policy development on constitutional issues, as well as extensive litigation, frequently in the Supreme Court of Canada.

David Cameron is a Professor of Political Science at U of T, and is renowned for his significant career in public service at both federal and provincial levels of government. Professor Cameron’s interests include Canadian government and politics, questions of federalism and Quebec nationalism, ethnocultural relations, and the politics and constitution-making of emerging federal countries such as Sri Lanka and Iraq.

Anita Anand currently serves as Associate Dean (JD Program) at the Faculty of Law at Toronto. She is a leading expert in corporate law, securities regulation, and bankruptcy and insolvency law. In 2006, she was a Canada-U.S. Fulbright Scholar and Visiting Olin Scholar in Law and Economics at Yale Law School. During the Fall 2005, she was a Visiting Lecturer in Law at Yale Law School where she taught comparative corporate governance. She is the recipient of research grants from the Social Sciences and Humanities Research Council of Canada (two awards) and the Foundation for Legal Research (three awards) as well as the Canadian Association of Law Teachers' Scholarly Paper Award (2003).

Moderator:

Cheryl Milne is the Executive Director of the David Asper Centre for Constitutional Rights at the Faculty of Law, University of Toronto. She is a leading member of the constitutional law bar in Ontario. She is currently Chair of the Ontario Bar Association's Constitutional, Civil Liberties and Human Rights section. She has appeared at all levels of court including the Supreme Court of Canada, as well as various administrative tribunals and the clinic itself in interventions and applications.

Introductory Remarks:

Mayo Moran is Dean of U of T’s Faculty of Law and James Marshall Tory Dean's Chair. She has published in comparative constitutional law, private law, and legal and feminist theory. Her book Rethinking the Reasonable Person was published in 2003 by Oxford University Press. In 2005, she was co-editor with Prof. David Dyzenhaus of Calling Power to Account: Law, Reparations and the Chinese Canadian Head Tax Case. Professor Moran's work focuses on how our practices and theories of responsibility come to terms with discrimination. Professor Moran has also worked on litigation involving the equality guarantee under the Charter and, most recently, the Chinese Canadian Head Tax claim.

When: Friday, December 5, 2008 Noon to 2 p.m.

Where: University of Toronto Faculty of Law, 78 Queen’s Park Crescent, Rowell Room

SIU "Toothless Tiger" say Ombudsman

2008-10-04T22:49:00.002-04:00

It appears that without a trace of irony the former Director of the SIU, in charge of investigating the officers involved in the death of Edmund Yu, now the Ombudsman of Ontario, released a report on the SIU calling it a "toothless tiger". There's been lots of coverage on the report in the Toronto Star - here is the link to the report: Oversight Unseen.

Goudge Inquiry Report Recognizes the Plight of Separated Children

2008-10-01T22:39:00.003-04:00

Today, the Honourable Justice Stephen Goudge released his report on the Inquiry into Pediatric Forensic Pathology. I had the pleasure of representing Defence for Children International-Canada (DCI) at the Inquiry. DCI responded to the report as follows:

When a parent is wrongly convicted of killing a child, there are devastating consequences for the remaining siblings. In his report, Justice Goudge recognizes the significant impact on surviving children: “For the surviving children, the impact is profound as well. They are often very young themselves, yet must cope with the sudden inexplicable loss of a sibling. If one of their parents is suspected, the children will likely be removed from their home and family, sometimes for years or even permanently. ....They must live with the horror that the parent they love is suspected of killing a brother or sister."

Today, the Ontario Government apologized for the serious harm that has resulted from a flawed pediatric pathology system. Concern was expressed for adults who have been wrongly conflicted. Promises were made to improve the system. But what about the children whose lives have been so profoundly affected by separation from their families? They are both innocent and invisible victims in this process. Some of these children have been placed in foster homes, others adopted. There is no process in place to identify some of these children even to let them know that their parent has been exonerated.

Defence for Children International-Canada calls on the Ontario Minister of Children and Youth Services to address the moral, ethical and legal obligations to young people whose lives have been devastated as a result of wrongful separation from their families. Specifically, we call for the establishment of a Task Force to deal with the child welfare issues arising from this Inquiry and to develop a process to remedy the harm done to some of our youngest and most vulnerable citizens.

William Sparks
President

Les Horne
Executive Director

Let's hope that the Minister will listen.

Inquest into the Death of Jeffery James

2008-09-23T22:46:00.002-04:00

More that three years after his death after five days in four-point restraint at the Centre for Addiction and Mental Health, the inquest into the death of Jeffrey James is on-going before Dr. Bert Lauwers, Deputy Chief Coroner. The inquiry has heard from Dr. Michael Pollanen that Mr. James died because being restrained led to the formation of blood clots that blocked the vessels in his lungs (for the same reason that if you are on a long flight you need to walk around). He wasn't the first to die in restraints and he wasn't the last. Makes me think twice every time I hear CAMH's slogan "Transforming Lives".

Mandatory Inquest Human Rights Challenge - Update

2008-09-23T22:44:00.003-04:00

According to the weekly case list of the Court of Appeal for this
week, the motions for leave in this Braithwaite v. Illingworth were listed as motions to
be heard in writing by Justices Moldaver, Armstrong and Blair yesterday, September 22, 2008. We believe that this means the materials have been placed before them for consideration with a decision some time in the future.

Treatment against the Wishes of a Child

2008-05-15T10:51:00.002-04:00

A Children's Aid Society recently apprehended a child from his parents because they honoured his wish not receive further chemotherapy. Oncologists are of the view that the boy is not capable to make the treatment decisions and that the treatment offers the boy the only chance of survival. These are complicated decisions and are currently being played out before a Family Court Judge. But why?

The Province of Ontario has a comprehensive code for capacity to consent to treatment in the Health Care Consent Act, 1996 and the principles of substitute decision making. The child could apply to the Consent and Capacity Board for a review that he is incapable of making treatment decisions. A doctor could apply to the Board for a determination that the parents are not acting in accordance with the principles of substitute decision making. Under Ontario law, there is no need to apprehend a child in order to examine the decision making. It is time for Children's Aid Societies and lawyers acting for children to start thinking outside of the apprehension box!

R. v. Conway

2008-05-12T22:23:00.002-04:00

The Court of Appeal holds that the Ontario Review Board is not a court of competent jurisdiction for the purpose of granting a Charter remedy. I acted as counsel at the hearing and, as such, I'll leave it for others to comment on the significance of the decision.

Taser Debate

2008-02-02T23:18:00.000-05:00

Not content with the Toronto Police Services Board's forum on Tasers which had only one speaker - the president of Taser International - held on January 17, 2008, interested community members have organized their own forum - too bad I'll be on my way back from Sudbury:

THE SHOCK OF THE TASER

A public discussion of the police use of shock and stun guns Wednesday February 6, 2008 7.00 pm Town Hall, Innis College St. George and Sussex Streets, one block south of Bloor

Speakers:
* David Reville, advocate and builder of the psychiatric survivor movement.
* Naomi Klein, author of `The Shock Doctrine, The Rise of Disaster Capitalism'
* Andy Buxton, chair, Amnesty International Toronto organization
Moderator: Anna Willats, Toronto Police Accountability Coalition.

This public meeting is sponsored by the Toronto Police Accountability Coalition, www.tpac.ca

Please let your colleagues and friends know of this public meeting.

Deaths in Custody II

2008-02-02T23:17:00.000-05:00

The Divisional Court denied the appeal. Both the Ontario Human Rights Commission and Ms. Braithwaite are seeking leave to appeal the decision. More soon on this!

Death in Custody

2007-11-20T22:46:00.001-05:00

Still no decision from the Divisional Court in Braithwaite on whether inquests should be mandatory for the deaths of psychiatric inpatients. That means the friends and family of Ryan Coulter, who died a few weeks ago in the medium secure unit at the Centre for Addiction and Mental Health will have to wait to see if the Office of the Chief Coroner acts according to its stated policy to call inquests into the deaths of those held in the forensic mental health system. A memorial is planned for Ryan at the Worship Centre of the Centre for Addiction and Mental Health on November 26, 2007 at 2:00 p.m. All are welcome.

Goudge Commission Begins

2007-11-17T23:15:00.001-05:00

The Inquiry into Pediatric Forensic Pathology began this week. I am there on behalf of Defence for Children - International (Canada). In response to the Commissioner's ruling granting DCI standing, Executive Director Les Horne and child advocate Les Horne said “We are pleased to have the opportunity to participate in this public inquiry ... Our child rights-based perspective will help to ensure that the Inquiry considers the best interests of the child, the child's right to be heard, the child's right to freedom from all forms of violence, and other rights contained in the United Nations Convention on the Rights of the Child.”

Virginia Tech

2007-04-18T23:05:00.000-04:00

In times of such enormous tragedy, here 33 dead, there is a really need to understand how this loss could have been prevented. And the question will be why psychiatry didn't read the signs. Those of us who work in the mental health field know that psychiatrists can rarely make these predictions accurately. It would seem to me that the obvious sign that things are about to go horribly wrong are when a clean cut college kid goes out to buy a Glock. That would about do it.

Canadian Institute Conference

2007-04-11T21:41:00.000-04:00

Today I attended the Canadian Institute Conference as a speaker. The speakers were all excellent and expert in their fields. Unfortunately, the number of participants were small - most likely due to the price tag of the conference. I also suspect a number of lawyers will be attending the tribute conference to the Chief Justice on the 25th Anniversary of the Canadian Charter of Rights and Freedoms which happens tomorrow. It would be fantastic to have a conference that brings together large numbers of health practitioners, lawyers, caseworkers and Board members but such a conference would have to be affordable. Just a thought. But I did get a comment on my blog after it, anonymous as it may be.

Stigma

2007-04-06T21:13:00.000-04:00

The federal budget announcement to fund the Canadian Mental Health Commission has me thinking about stigma. Stigma is code for discrimination. We don't like to say that people discriminate about those with mental health problems but we do every day. So we call it stigma. So I have been thinking about what it will take to end stigma - to end the prejudice - i.e. what would be the I have a dream speech to end "stigma". All I can say is that it means the end of the expression "off his meds" because people will understand that our mind is more complicated than a simple pill. That people will take a little shouting in the face rather than calling the police as an exchange for the ability to live in a free society. That no person will allow a fellow citizen to be isolated, segregated and humiliated in a time of crisis - we will end seclusion and restraint and exchange it for understanding, empathy and compassion. So that is all I have so far.

Legal Aid Increase Announced

2007-03-29T23:07:00.000-04:00

For the record, a 5% increase was announced - let's see how it pans out.

Stop the New Oak Ridge

2007-03-29T22:41:00.000-04:00

Apparently, the Ontario Budget announced funding for the new Oak Ridge - a 160 maximum secure bed. This runs counter to all the thinking that we don't need this building we need more medium secure beds. It runs counter to the Reid report which was the foundation of our NCR
system.

Oak Ridge is the wrong facility in the wrong place. 20 years ago, the Hucker Report recommended that it be closed. It takes people out of communities and away from their making reintegration more difficult.It means that our maximum secure beds will never be near an academiccommunity. Helping professionals do and will find it difficult totravel leaving the work to a small, and sometimes insular community. This is the wrong use of scarce mental health resources.

Here is the article that ran in the Midland Mirror:

The provincial government has committed to rebuilding Oak Ridge in Penetanguishene, but it could still be several years before the new building is erected.

"It's always good to have your project mentioned specifically in the budget," notes Dan Parle, director of planning and public information. "We have not had a lot of details since then about what this actuallymeans and we'll be waiting for the government to tell us." Parle says staff at MHCP has been working on plans for the new building for about 15 years, although work on it has increasedsubstantially in the last several years. The next phase in the process will be detailed drawings before site preparation and eventual construction.

The replacement of Oak Ridge was specifically mentioned in the Ontario Budget released by the Liberal government last week, as part of the ReNew Ontario plan that will see the province invest more than $5 billion in health care infrastructure by 2010.

The announcement comes as welcome news to Penetanguishene Mayor AnitaDubeau who says having the hospital in the town is good for the economic health of the area.

"The building is absolutely antiquated and it was really important for the government to stipulate that it will be rebuilt here," said Dubeau." There was a concern that they might find space elsewhere but I'm really happy. Economically, the hospital, over all, I believe, has a
$70-million-plus budget and over 1,000 employees when you look at Oak Ridge and the entire mental health centre group. So, that's a big influx of dollars into the community."

MHCP features 31 acute psychiatric beds, 101 beds in the longer-term Tertiary Care Division and 160 maximum and medium-security beds at its Forensic Division at Oak Ridge.
Although several locations on the property have been looked at, the site that has garnered the most support for the new Oak Ridge building is directly behind administration towards the bay, which would require moving a couple of buildings.

Patients will be transferred to the new Oak Ridge building once it is secure and functional, but that is not likely to happen for several years.

The rebuild of Oak Ridge is part of a total makeover of MHCP that has been in the planning stages for years, says Parle. "The long-term plan was to have everything (five major buildings)
concentrated in the Toanche Building and to have a new front building attached to the whole complex," he says. "Having a more concentrated, condensed hospital with everything close would be a good change forus. That would get us ready for the next century."

In an era of SARS and concerns about pandemics and other securityissues, the goal is also to have a single point of entry into the mental health centre complex, once it's built. When no longer needed, the old Oak Ridge building will up for bidding by other provincial government departments.

If no one at that level of government wants it, the Town of Penetanguishene can purchase it, although it doesn't seem likely they would want it, notes Parle.

Back in Action

2007-03-12T15:56:00.000-04:00

After four months at home with two beautiful additions to my family, I have returned full-time to my practice. I am eager to greet my challenges and I have recommitted to my blog with the hope that I can track issues of social justice and the law.

Human Rights Tools

2006-08-21T22:47:00.000-04:00

Although persons with disabilities is listed as a "coming soon" on this website, Human Rights Tools looks promising as a website for human rights professionals. It aims to provide "monitoring and fact-finding tools, advocacy tools and other essential resources for
human rights work; thematic resources on the protection of detainees, human rights defenders, refugees, and more; the top online databases for resources on human rights law, refugee law and humanitarian law."

Victim Notification before the Ontario Review Board

2006-08-21T22:16:00.000-04:00

When the recent amendments to the mental disorder provisions of the Criminal Code came into force early this year, the Ontario Review Board (the Board) signalled to lawyers practising before it that where an absolute or conditional discharge was recommended (by the hospital), it only intended to notify victims for offences occuring after the date of the amendments. It was seen too cumbersome to try determine who the victims were for offences occurring well in the past.

This seems to have changed. Hearings are being adjourned across the Province to allow the Board to try to allow for the notification of victims. It is hard to believe that the victim notification provisions have a place in the mental disorder provisions of the Criminal Code (or that they are constitutional) given that the accused has been found not to have had the requisite mental state for the offence.

These provisions came as no surprise so it is a little shocking that the Board seems to be scrambling to figure out what to do. The Board would be well advised to establish and circulate publicly a policy regarding its approach to victim notification especially what triggers the requirement that the victim be notified. See for example the policy of the British Columbia Review Board.

Not So Good Governance

2006-07-04T22:36:00.000-04:00

On June 22, 2006, the Legislative Assembly of Ontario passed Bill 190, the Good Government Act, 2006, on third and final reading. It received Royal Assent the same day. Section 2 of Schedule "L" to the Act provides:

Health Care Consent Act, 1996

2. The Health Care Consent Act, 1996 is amended by adding the following section:

Limit on jurisdiction

70.1 (1) The Board shall not inquire into or make a decision concerning the constitutional validity of a provision of an Act or a regulation.

Same

(2) Subsection (1) shall be deemed always to have applied to the Board, but its enactment does not affect any proceeding that was finally determined before the date on which this section came into force.

The Act can be found at:

http://www.e-laws.gov.on.ca/DBLaws/Source/Statutes/English/2006/S06019_e.htm

More comment on the Consent and Capacity Board's limitations in the face of the amendment will follow.

Cash Office Victims Really Be Compensated?

2006-06-26T15:08:00.000-04:00

Toronto Police Service announced last week that it arrested an employee of the Centre for Addiction and Mental Health for allegedly stealing over $250,000 from Queen Street Site patients over a five-year period. CAMH claims that all the victims have been/will be compensated. Strangely, this story does not appear in the news and events part of the CAMH website. Can the return of the embezzled funds truly compensate? What of the clients who told their health care providers that the cash office was stealing from them only to be found to be delusional and incapable of managing their property? It is an action waiting for the right lawyer (not me, pregnant with twins).

In any event, CAMH states that if you have concerns about your or your client's account that the primary clinician can advise or you can contact Isobel Stevenson at 416.535.8501 extension 6391.

Catching Up

2006-06-23T18:12:00.000-04:00

Lots of mental health news this week. - New Releases - Two new books announced this week. Mental Health Courts: Decriminalizing the Mentally Ill (FORTHCOMING) by Dr. Justice Richard D. Schneider of the Ontario Court of Justice (also a clinical psychologist) appears to outline the benefits and operation of a mental health court. The author seeks to serve mental health service provides and criminal justice professionals.

Irwin Law also announces the forthcoming Mental Disorder and the Law: A Primer for Legal and Mental Health Practitioners by Ontario Psychiatrist and lawyer Hy Bloom. This one’s stated purpose is to “inform, promote understanding, and demystify” - if it fulfills its promise he should be charging more that the $50.00 listed. Irwin Law lists both at $50.00 if Dr. Justice or Dr. Counsellor send me a copy, I promise to review it.

If you are interested in another psychiatrist's perspective on mental health law, try Dr. Stephen Hucker's webtext Forensic Psychiatry.

Inquest Update: The Chief Coroner seeks to have the Divisional Court overturn the decision of the Honourable (and former Supreme Court of Canada) Mr. Justice Peter Cory which held that his failure to make inquests mandatory in the death of psychiatric inpatients discriminates on the basis of mental disorder. Our client calls upon the Coroner to hold an inquest into her mother Melba Braithwaite's death while the courts review the decision.

Police Records and the Use of Non-Criminal Information: The Psychiatric Patient Advocate Office (PPAO) is holding a meeting on this topic June 28th, 1:30 - 3:00 p.m. - If you are planning on attending the meeting, please contact Dorothy Bursey at(416)327-7000.

Finally, on homelessness, Voices from the Street presents:
on Wednesday, June 28th from 10am-12 noon "In Dialogue: homelessness and housing issues from a local/global perspective." Featuring special guests: Beth Chitewe-Biti (Director, Dialogue on Shelter, Zimbabwe) and Angela Robertson(Executive Director, Sistering, Toronto). Discussion will be moderated by activist and author Pat Capponi. This event will include exciting updates from Voices From the Street members who attended the recent World Urban Forum in Vancouver.

This event will take place at City Hall, Committee Room #2. Light Refreshments will be provided and a limited number of TTC tickets will be made available on a first come first served basis for those who could not otherwise afford to attend.

If you have any questions, please e-mail speakersbureau@bellnet.ca or call Becky McFarlane at 416.504.1693 ext. 226.

Back Channel

2006-06-01T15:34:00.000-04:00

At the recent mesh conference in Toronto, conference participants were able to access a backchannel. The conference participants, equipped with free wireless and their laptops, discussed online what the speakers were saying as they said it. At one point, the backchannel was displayed on a screen beside the speaker. It offers a great way to exchange ideas during a conference but perhaps a little disconcerting for the speaker. Imagine this tool let loose amongst lawyers?

Why Inquests?

2006-05-29T22:57:00.000-04:00

On May 25, 2006, the Honourable Peter Justice Cory released the decision in two human rights complaints into the failure of Ontario's Chief Coroner to call inquests into the deaths of Melba Braithwaite and Thomas Illingworth. The Coroners Act fails to make mandatory inquests into the deaths of psychiatric patients. This is to be contrasted with mandatory inquests arising from other deaths in state custody. Justice Cory recognized that detention in psychiatric facility can mean severe restriction of movement, limited access to visiters and little control over medication.

But why inquests? Inquests allow the public to scrutize openly that which occurs behind closed doors so that there can be no doubt or suspicion left at the end of the inquest. Time and time again, we see coroner's juries, made up of average citizens, recommending ways to improve the actions of the state. As hospitals and physicians increasingly take on responsibilities for the restrictions of our citizens liberties, they become state actors in need of public review and scrutiny.