Law governing those with intellectual deficits needs change: advocates

By The Canadian Press
October 16, 2017 - 8:15am

HALIFAX — Nova Scotia legislation aimed at giving greater autonomy to people with intellectual or cognitive disabilities came under criticism Monday, with predictions it will face a constitutional challenge if passed without changes.

Nonetheless, the Liberal-dominated law amendments committee voted Monday to send the bill back to the House without amendments.

"I was surprised," said Progressive Conservative member Karla MacFarlane, who had asked the committee to send the bill back to the Justice Department for further consideration.

"It was very clear from the presenters today ... that clearly the bill is not conforming to even the Charter of Rights."

The Adult Capacity and Decision Making Act is a replacement for the Incompetent Persons Act, which was struck down by the Nova Scotia Supreme Court in June 2016.

The court gave the province until the end of this year to enact a new law to conform with the Charter of Rights and Freedoms. It also overturned the "mentally incompetent'' status of Landon Webb, who had fought a legal battle over the act, which he maintained infringed on his rights and freedoms.

Justice Minister Mark Furey said Monday the government has received legal advice that the new law will stand up to a constitutional challenge.

"We believe based on the legal advice and academic advice we have received that the bill is in fact constitutional. We are very conscious of the need and the direction provided by the court to meet the time lines."

Michael Bach, of the Institute for Research and Development on Inclusion in Society, told the committee the new legislation lacks a legal process for people to have decision-making supporters appointed to assist them.

Bach said the proposed law only provides for a court appointed "representative," which he says means people will be making decisions on behalf of those who need help. He said that runs counter to the charter because it takes away the liberty and authority of those who may be capable of making a decision, but need some help to do so.

"What we're saying is, we should be able to maintain our authority if all we need is someone who can assist us in understanding or in communicating, because people communicate in different ways," Bach told reporters.

Furey says the former Incompetent Persons Act was an "all or nothing" approach that gave complete control to a guardian for all aspects of a person’s decision-making. The new bill, he says, allows the government to address the court's concerns, and melds elements of representative and supported decision-making.

"What we have landed on is a representative decision-making with elements of supported decision-making where the individual with diminished capacity — their rights, their values, their wishes, their desires — are respected through the dialogue they have  ... through representatives under the new legislation."

Other presenters to the committee Monday complained the government consultation process was rushed, and said more time is needed to ensure the new legislation meets the needs of those it affects.

Dalhousie University law professor Sheila Wildeman told the committee it should take the time to get the legislation right.

"Intensive and responsive stakeholder meetings began far too late in late summer and so took place in a very pressured environment that didn't allow for adequate canvassing or expression of views," Wildeman said.

Keith Doucette, The Canadian Press

Note to readers: This is a corrected story. A previous version misspelled Sheila Wildeman's surname.

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