Ontarians with mental disabilities lost in legal system
TheStar.com – opinion/editorialopinion
January 08, 2013. By Carol Goar, Editorial Board
On Christmas Eve, Sarah Shartal’s business line rang. The Toronto lawyerwasn’t surprised. Her clients — people with mental disabilities — called when they needed help, heedless of the time or date.
But the caller’s identity did surprise her. It was a researcher from the OntarioMinistry of the Attorney General. He wanted to know what Shartal thought of the government’s efforts to accommodate individuals with mental disabilities in the justice system. He pointed proudly to its anti-stigma campaign and its employee training program.
If he was hoping for praise, he’d come to the wrong place. If he was looking for an honest assessment from a lawyer who’d spent a lot of time representing Ontarians with cognitive impairments, he couldn’t have picked a better candidate.
Shartal was blunt. She told him the ministry’s anti-stigma training “would not amount to a hill of beans” in the existing justice system. People with mental disabilities can’t cope with the pace or procedures of the court, she explained. Unless court officers, lawyers, adjudicators and judges slow down, they won’t have a hope of getting a fair hearing.
“Individuals who live with cognitive and perceptual impairments need more time to understand what they are facing, what their options are and how to respond,” she said. “Informed consent or informed participation takes talk — no amount of anti-stigma training can change the fact that it takes time to explain things to people who have difficulty thinking clearly.”
Not wanting to be obstructive, she offered the researcher a couple of practical suggestions:
• Set up a peer accompaniment program, like those initiated by health-care agencies across the province. People with cognitive difficulties often have trouble remembering court dates and interpreting what’s going on. Having a trusted companion would increase the number who show up for their hearings and keep them reasonably calm.
• Help unrepresented defendants, especially those with mental disabilities, get legal counsel. They can’t present their case in court because they have trouble remembering things or explaining their actions. But they can’t afford a lawyer.
After the conversation, Shartal sent a frustrated email message to a few friends. “It still astonishes me that we need to repeat the obvious.”
By Boxing Day, she was feeling more magnanimous. She credited the ministry with recognizing that Ontarians with mental disabilities experience discrimination in the court system, but maintained her position that anti-stigma training was a superficial response to a profound problem.
By New Year’s, she was back to business-as-usual — fighting for her clients issue by issue. One of the biggest challenges they face is chronic homelessness. Yet Ontario refuses to provide legal aid certificates to people threatened with eviction.
Shartal has appeared eight times before the Landlord and Tenant Boardwithout a legal aid certificate (meaning she received no payment) since the beginning of November. “I cannot keep this up.” But she can’t turn her back on people who will lose their apartments without help.
She is now poised to take Legal Aid Ontario to court on the grounds that it denies representation to cognitively impaired clients, violating the Charter of Rights and the Ontario Human Rights Code. “It is absurd that this should have to be litigated, but without action I will start the litigation process at the end of January.”
It is dichotomies like this — lofty intentions but mean-spirited rules — that exasperate Shartal. Up in the clouds, provincial bureaucrats are developing multi-year strategies to phase in the Accessibility for Ontarians with Disabilities Act. Down on the ground, she is fighting to get her clients disability support benefits, keep a roof over their heads, make sure they show up for their court hearings and steer them through a process that is alien and bewildering.
She doesn’t question the bureaucrats’ sincerity. But she wishes they’d get their priorities straight.
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