“Nova Scotia has a human rights emergency on its hands,” according to Dulcie McCallum, a lawyer and a former member of Canada’s delegation to the United Nations for the Convention on the Rights of Persons of Disabilities.
According to McCallum, who may be best known as a former provincial Freedom of Information and Protection of Privacy Review Officer, Premier Tim Houston has a legal obligation to act immediately on a decision of the Nova Scotia Court of Appeal issued on October 6.
In brief, at paragraph 175, the landmark court decision said “Simply put, at the heart of the claim of the discrimination is this: to place someone in an institutional setting where they do not need to be in order to access their basic needs, which the province is statutorily obligated to provide, is discriminatory.”
The province’s top court found there was “systemic discrimination” in the way the province treated people with disabilities and not just in the three cases brought before a Human Rights Board of Inquiry. That case revolved around the lack of services and supports (including income assistance and housing) provided to three people with intellectual disabilities — Beth MacLean, Sheila Livingstone, and Joey Delaney, all of whom spent many years living at the Nova Scotia Hospital. Only Joey Delaney, who went out to work each day, is still alive.
A complaint on their behalf was filed by the Disability Rights Coalition. The coalition says the court’s finding of systemic discrimination has the potential to affect up to 2,000 people with intellectual and physical disabilities — close to 1,000 living in institutions such as Adult Residential Centres, Rehabs, and Residential Care Facilities, as well as another 800 waiting to move out of nursing homes or leave their aging parents.
Vicky Levack is one of those people. The writer and human rights activist turns 31 today. Despite her young age, she has spent the past 10 years living in a nursing home because she has a physical disability which requires someone to give her daily medication.
“I feel as if the government has robbed me of 10 years or my life,” Levack said about her struggle to find an alternative living arrangement outside the nursing home. “I felt it was morally wrong but when the Court of Appeal decision came, I knew it was legally wrong. I am twice as mad and I look forward to a remedy as soon as possible so no one else will go through this.”
Levack spoke at a news conference hosted by the Disability Rights Coalition. The ultimate goal of the group is to work with government to provide a concrete plan — with measurable timelines and hundreds of millions of dollars in additional funding — to provide alternate living arrangements for people who are unnecessarily institutionalized or striving to live more independently.
Kariellen Graham is the mother of a 27-year-old young woman with Down Syndrome. Ainsley was on the wait list for a supervised apartment for nine years. The only reason she finally has one is because her parents can afford to cover half the rent.
Another parent, Milt Isaacs, said after a dozen years his 31-year-old son is still on the wait list and Community Services is unable to estimate when a place might be found.
“Let’s just do the right thing,” Isaacs begged the PC government, “and not kick the can down the road again. Why do we have to go court to get a resolution for folks who have no voice? We have to stop this.”
On Monday the Disability Rights Coalition announced it was holding a news conference to discuss the lack of response by the Houston government to the court decision, specifically whether it has a plan to fix the problem. (A similar query by The Halifax Examiner to the Department of Community Services has not received a response).
On Tuesday afternoon, the group was invited to meet with the premier next week — a move “welcomed” by the group, according to its lawyer Claire McNeil. McNeil is also “encouraged” by the premier’s immediate response to the court’s decision when he stated the province would not fight or appeal it. He also apologized to the three people named in the complaint.
Shamed into Action?
What the Disability Rights Coalition wants now is action. Within three months, the group will be before another Board of Inquiry convened by the Human Rights Commission seeking a fix to the discrimination identified by the Court.
That process might be avoided if the group and the province can agree on a concrete plan for how to provide services to disabled people that meet their needs.
After more than a decade of discussion with senior managers within the Department of Community Services, the court verdict is a big stick that makes the province vulnerable to being “shamed” publicly and internationally if it doesn’t start to act.
Lawyer Dulcie McCallum points to something called the “optional protocol” within the UN Convention on the Rights of Persons with Disabilities. This narrow legal avenue allows people who are institutionalized or underserved to take a complaint directly to the Oversight Committee “if the application of remedies is unreasonably prolonged or unlikely to bring effective relief” in their home province.
What premier would want an embarrassing complaint like that as their legacy? asks McCallum. Perhaps Houston would be better off spending his energy and undoubtedly more money to improve choices for people who currently have none, she suggests.
Meanwhile, the coalition is preparing for yet another Human Rights Board of Inquiry in three months time.
Here’s what it will be asked to adjudicate if the Disability Rights Coalition and the province can’t agree on a path forward.
The first issue the Board will handle depends on whether the provincial government seeks to “justify” continuing the discrimination. For example, the province might argue it costs too much money to provide supports and services if people with disabilities live outside institutions such as Residential Care Facilities, Adult Residential Centres, and nursing homes. The Department of Community Services currently spends about $350 million a year supporting people with disabilities across a broad range of living situations.
Or the province might argue it can’t guarantee the safety of people in settings outside institutions. The coalition is hoping the province will not go this route and will seek that commitment from the premier when they meet next week.
Once that issue is out of the way, the Disability Rights Coalition can move immediately to its end game: asking the Board of Inquiry to approve an appropriate “remedy” or plan to ensure disabled people get the supports and services they need, wherever they live.
The downside of this quasi judicial process is that people who have already been waiting a long time will be delayed at least two more years. That’s how long this process could take before there is any increased financial commitment from the government to live up to its legal obligation to correct identified violations of human rights.
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